KUTHIRALAMUTTAM SAJI Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioners are accused Nos.1 to 8 in C.P.No.14 of 2020 on the file of the Chief Judicial Magistrate Court, Payyannur, which is now pending as S.C. No.165 of 2020 on the file of the Sessions Court, Thalassery.

(2.) The prosecution case is that on 5/3/2013, one Mammu, hurled an explosive towards the SNDP office at Prappoyil, Kannur District, within the then Peringome Police Station limit and one K.R.Santhosh informed this fact to the police. Infuriated by this, the said Mammu assaulted the said Santhosh and attempted to commit murder and thereby committed offences under Sec. 324, 506 (i) (ii) and Sec. 308 IPC and the police registered the case as Crime No.128 of 2013 of Peringome Police Station. As a counter blast, it is submitted that the 2nd respondent herein, the wife of said Mammu filed a private complaint before the Judicial First Class Magistrate Court Payyannur as evident by Annexure A1. After Sec. 202 Cr.P.C enquiry, the case was numbered as C.C. No.417 of 2014 and the Magistrate issued summons to the petitioners and they entered appearance. The case was proceeded as a warrant case. The evidence under Sec. 244 Cr.P.C was permitted to be adduced and four witnesses were examined on the side of prosecution. Thereafter, a charge was framed under Ss. 141, 142, 146, 148, 354, 294(b) 324, 423, 341, 447 and 506(ii) read with Sec. 149 IPC. Even though an offence under Sec. 391 IPC was alleged in Annexure A1 complaint, learned Magistrate has not taken cognizance is the submission. It is also submitted that the order not taking cognizance under Sec. 391 IPC was not challenged by the 2nd respondent complainant, is the further submission. After framing charge, the 2nd respondent was cross examined and Annexure A3 is the certified copy of the deposition. Thereafter, the remaining available witnesses were also cross examined and the prosecution evidence was closed and the case was posted for the examination of the accused under Sec. 313 Cr.P.C. The accused were questioned under Sec. 313 Cr.P.C. and posted the case for defence evidence. Thereafter, the matter was heard on 7/2/2020. But on 18/2/2020, the learned Magistrate, as per Annexure A4, the B Diary proceedings, recorded that the offence under Sec. 391 IPC is also made out. Hence, the learned Magistrate decided to invoke Sec. 323 Cr.P.C. Annexure A5 is the order passed by the learned Magistrate by which the powers under Sec. 323 Cr.P.C was invoked. Aggrieved by the same, this Crl.M.C is filed.

(3.) Heard counsel for the petitioner and the Public Prosecutor.