BADARUDEEN AND ORS. Vs. STATE OF KERALA

JUDGEMENT

(1.) This revision petition is directed against the order dated 30/11/2009 in Crl RP No. 31 of 2009 passed by the Court of Session, Kollam. The petitioners herein were the accused in CC No. 397 of 2004 on the files of the Court of Judicial First Class Magistrate, Sasthamkotta. They were tried therein for offences punishable under S.143, S.147, S.148, S.341, S.332, S.333 read with 149 IPC and S.3(2)(a) of the PDPP Act and ultimately they were acquitted as per Annexure - A judgment dated 26/06/2009. However, it was later found by the learned Magistrate that he has committed an incurable error by trying the accused in CC No. 397 of 2004 as the offence under S.333 IPC was exclusively triable by a Court of Session. Thereupon, that fact was duly reported to the Chief Judicial Magistrate and on getting a report in that regard from the Chief Judicial Magistrate, the learned Sessions Judge, Kollam registered a suo motu revision petition and the entire records in connection with CC No. 397 of 2004 were called for. After hearing the petitioners and the learned Public Prosecutor, Annexure - B order was passed by the learned Sessions Judge.

(2.) I have heard the learned counsel for the revision petitioners and the learned Public Prosecutor.

(3.) A scanning of Annexure - B order would reveal that at the time of argument, the position that offence under S.333 IPC is triable only by a Court of Sessions is rightly conceded by both sides before the learned Sessions Judge. When once the said fact is admitted and, in fact, indisputable in view of the classification of offences in the First Schedule to the Code of Criminal Procedure under the heading "I - OFFENCES UNDER THE INDIAN PENAL CODE (45 of 1860), there cannot be any doubt with respect to the position that Annexure - A judgment passed by the learned Magistrate would become totally invalid in view of the fact that a Court of Magistrate of the First Class is not a Court of competent jurisdiction to frame the charge and try an accused under S.333 IPC and it is an incurable irregularity. In the said circumstances, the findings of the learned Sessions Judge that the registration of CC No. 708 of 2009 after taking cognizance on the final report was improper as the learned Magistrate has no jurisdiction to try the offence and consequently, setting aside the very registration of CC No. 708 of 2009 cannot be said to be illegal and warranting interference. The learned Magistrate was directed to take steps for committing the case in accordance with law and the case was remitted to the Court of Judicial First Class Magistrate, Sasthamcotta as per Annexure - B order. That apart, since a Magistrate not being empowered by law to take cognizance of and to try an offender for the offence under S.333 IPC the action on the part of the learned Magistrate in taking cognizance of the offence under S.333 IPC and in trying the petitioners for the said offence would vitiate the proceedings in view of S.461, CrPC.