KESAVAN NATESAN Vs. MADHAVAN PEETHAMBHARAN

JUDGEMENT

(1.) ONE of us (Bhal. J.) who heard the ease originally referred it to a Division Bench of this Court in view of the importance of the questions arising in the case. A Division Bench of this Court heard the case and referred the same to a Full Bench.

(2.) THE facts of the case have been summarised, succinctly by Balagangadharan Nair, J. , speaking for the Division Bench in the order of reference and we quote the same with advantage: The Sub-Inspector of Police, Mararikulam registered a case, Crime 185 of 1978 against the petitioner and the 2nd respondent for the offence under Section 324 read with Section 114, I. P. C. on the allegation that at the instigation of the petitioner, the 2nd respondent stabbed one Udayabhanu. Udayabhanu subsequently died on account of the stab injury and thereupon Section 324, I. P. C. was substituted by Section 302, I. P. C. After completing the investigation the police filed a charge-sheet against the 2nd respondent alone - dropping the petitioner - for the offence under Section 302, I. P. C. in the court of the Judicial Magistrate of the 2nd Class, Shertallai. The Magistrate took cognizance of the case as O. P. 5 of 1979 and duly committed the 2nd respondent to the Sessions Court, Alleppey, The case was numbered, as S. C. No. 31 of 1979. Thereafter the 1st respondent instituted a private complaint in the same committing court. The complaint was transferred to the Judicial Magistrate of the 2nd Class, Alleppey, where it was numbered as O. P. 14 of 1979 against the petitioner and the 2nd respondent. The Magistrate took cognizance for offences under Sections 323 and 302 read with Section 114, I. P. C. Thereafter the case was committed to the Court of Session and, was registered as S. C. 5 of 1980. The petitioner appeared before the Sessions Court and objected to cognizance of the case having been taken on the ground that the court had already taken cognizance of the case in S, C. 31 of 1979. The learned Sessions Judge overruled the objection and ordered that the two cases would be clubbed together and that as S. C. 5 of 1980 takes in both the accused S. C. 31 of 1979 would, be clubbed with it. The learned Judge also posted the case for framing charge against both the accused. Petitioner seeks to set aside the order.

(3.) THE learned Sessions Judge directed the two Sessions cases arising on the police report and on the private complaint to be clubbed together and a single trial held on the strength of the decision of a Division Bench of this Court in Asokan v. Narayanan 1972 Ker LT 728. That decision was given in the light of the provisions of the Cri. P. C, 1898. While Section 193 of the 1898 Code provided for "committal of the accused" to the Sessions, the corresponding section in the Code of 1973 contemplates "committal of the case" to the Sessions. In this connection, the order of reference states: Counsel for the petitioner contends that the change has made a substantial difference in the legal position and that when a "case" is committed, it takes in all the relevant facts and the accused and that once there is a commitment there is no scope for committing the "case" over again even if it involves a different accused on a subsequent private complaint as here, whatever other machinery there might be to join fresh accused in the Sessions trial. This aspect did not naturally fall to be considered in 1972 Ker LT 728. On account of that circumstance and on account of the importance of the question we think it desirable that the case is considered by a Full Bench.