SIBY Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioners, who are accused 2 and 4 in Crime No. 67 of Kanjikuzhy police station which was originally registered for offences punishable under S.353, 225 read with S.34 of the Indian Penal Code and subsequently also registered for offences under S.55(i) and 61 of the Abkari Act, filed CMP Nos. 313/08 & 333/08 in CP No. 74/2007 before the Judicial First Class Magistrate-I, Idukki to limit the offences other than the offence under the Abkari Act. As per order dated 7-2-2008, the learned Magistrate dismissed the petition on the ground that he does not have the power to entertain such a petition. I fully agree with the learned Magistrate who, having taken cognizance of all the offences and having registered CP No. 74/2007, could not have gone back to the pre cognizance stage by accepting the contentions of accused 2 and 4. After having taken cognizance of the offences including the offences exclusively triable by the court of Sessions, the Magistrate had no power under S.209 CrPC to refuse to commit the case by deleting the offences triable by the Sessions Court. The only course now open to the petitioner is to plead for a discharge before the Sessions Court during the preliminary hearing under S.227 CrPC. Reserving the said right of the petitioners, this Crl. MC is dismissed. In case at the time of hearing under S.227 CrPC the Sessions Judge concerned comes to the conclusion that the offences are not exclusively triable by a court of Session, he can then proceed under S.228(1)(a) CrPC and transfer the case either to the Chief Judicial Magistrate or the Judicial First Class Magistrate.