KOCHU MOHAMMED Vs. STATE OF KERALA

JUDGEMENT

(1.) Accused 1 to 3 in a case initiated on a private complaint by the Judicial Second Class Magistrate, Cochin and pending trial before the Assistant Sessions Judge, Cochin are the petitioners.

(2.) The complaint was filed at 5-15 P. M. on 19-4-1976 with a schedule of witnesses. The complainant was directed to appear and to produce the witnesses in the schedule also at 11 A. M. on 20-4-1976. On 20-4-1976 the sworn statement of the complainant was taken. No witnesses were present. The court registered the case as P. E. 7 of 1976, directed summons to be issued to all the accused and posted the case to 11-5-1976. On the application of the accused the case was adjourned to 25-5-1976. On that day copies of the documents were furnished to the accused. The case was adjourned for hearing and further steps to 28-5-1976. On that day counsel for the complainant and the accused were heard. Since the offences taken cognizance of were exclusively triable by the Court of Session, the Magistrate committed the case to the Court of Session. The Assistant Sessions Judge, Cochin framed charges under S.450 read with S.34 of the Indian Penal Code and S.364 read with S.511 and 34 of the Indian Penal Code. The present petition filed under S.482 of the Indian Penal Code is to quash the order of committal.

(3.) The petitioners would contend that the order of committal is illegal because the mandatory provisions contained in S.202 and S.208 of the Code of Criminal Procedure have not been followed. According to the petitioners, the Magistrate having directed the complainant to produce the witnesses should have insisted on their examination and should have dismissed the complaint on the complainant's omission to produce the witnesses. The further case of the petitioners is that the proviso to S.202(2) of the Code of Criminal Procedure lays down a special procedure in respect of offences triable exclusively by a Court of Session and the order of committal in violation of the said procedure is illegal