STATE OF KERALA Vs. VIJAYAN

JUDGEMENT

(1.) As per the order in P.E. 4 of 1975, the Judicial Magistrate of the Second Class , Haripad, committed the five accused persons in this case for trial of offences punishable under S.143, 147, 148, 149, 324 and 307 of the Indian Penal Code. The Additional Sessions Judge, Mavelikara before whom the case came up for trial perused the records in the case, heard the State and the accused and held as per the order dated 23rd June, 1975 that only offences punishable under S.143, 147, 148, 149 and 324 IPC. appeared to have been committed by the accused. Accordingly charges under the above sections were framed against the accused. Since the offences disclosed were not exclusively triable by the Court of Session, the case was transferred to the Chief Judicial Magistrate, Alleppey, under S.228 of the Code of Criminal Procedure for trial and disposal according to law. The Chief Judicial Magistrate registered the case as C.C. 222 of 1975. After the accused appeared, Pw. 1 was examined. Basing on his evidence and Ext. P1, the first information statement, the Chief Judicial Magistrate came to the conclusion that an offence under S.307 IPC was also disclosed. The court, therefore, again committed the accused for trial to the Additional Sessions Judge, Mavelikara, for offences including one under S.307 IPC. While it was pending trial, the High Court ordered the transfer of the case to the Sessions Judge, Alleppey. The learned Sessions Judge after recording evidence held that there was already a discharge of the accused of the offence under S.307 IPC. by the Additional Sessions Judge, Mavelikara on 23-6-1975 and also that the accused were not guilty of the remaining offences charged against them. An order of acquittal was, therefore, passed in favour of the accused. When the copy of the judgment was received in this court for the purpose of calendar review, the learned Judge who bad occasion to peruse it observed that the position of law discussed by the Trial Court deserved to be examined. Notice was, therefore, issued to show cause why the order of acquittal on all the charges including the one under S.307 IPC. should not be set aside and the case dealt with in accordance with law. The accused who appeared through counsel maintained that there are no reasons for setting aside the order of acquittal.

(2.) The concerned provisions of law have to be examined to decide the regularity and correctness of the order of acquittal. S.193 of the code of Criminal Procedure deals with cognizance of offences by Courts of Sessions. It reads:

(3.) Evidently, the learned Additional Sessions Judge followed the procedure prescribed in S.228, when that Court framed a charge excluding S.307 IPC. The exclusion of S.307 IPC. from the charge implied that the court was not satisfied, prima facie, that an offence punishable thereunder had been committed by the accused. The omission to mention S.307 IPC. in the charge, in other words, amounted to an order of discharge of the accused in respect of the said offence. The learned Chief Judicial Magistrate committed a mistake in holding that the accused should be tried for an offence under S.307 IPC. as well.