Selvakumar v. State of Kerala

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE K.ABRAHAM MATHEW** **THURSDAY, THE 5TH DAY OF JULY 2018 / 14TH ASHADHA, 1940** **Crl.MC.No. 3376 of 2018** **SC.NO.196/2017 of ADDL.DISTRICT COURT, KOZHIKODE CRIME NO.1525/2015 OF KASABA POLICE STATION,KOZHIKODE -------** **PETITIONER(S)/1ST ACCUSED -------------------------** **SELVAKUMAR, AGED 58 YEARS, S/O. CHIDAMBARAM, HOUSE NO. 75, SOUTH CAR STREET, THURAYOOR P.O, TRICHI DISTRICT, TAMIL NADU.** **BY ADVS.SRI.M.RAMESH CHANDER (SR.) SMT.K.A.SANJEETHA** **RESPONDENT(S)/COMPLAINANT & STATE: ----------------------------------** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031.** **BY SENIOR PUBLIC PROSECUTOR SRI.C.S.HRITHWIK** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 05-07-2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **TS** ## **Crl.MC.No. 3376 of 2018 ()** ## **-------------------------** **APPENDIX** **PETITIONER(S)'ANNEXURES** **------------------------** **ANNEXURE A1: PHOTOSTAT COPY OF THE CHARGE FILED BY THE POLICE BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE - III, KOZHIKODE** **ANNEXURE A2: PHOTOSTAT COPY OF THE CHARGE.** **ANNEXURE A3: PHOTOSTAT COPY OF THE PROCEEDINGS OF THE LEARNED SESSIONS JUDGE IN SC.NO.196/17 WHICH THE PETITIONER'S COUNSEL COULD OBTAIN FROM THE NET.** **RESPONDENT(S)'ANNEXURESTS - NIL** **-----------------------------** **/TRUE COPY/** **PS TO JUDGE** **TS 12.07.2018** ## **K.ABRAHAM MATHEW J. -------------------------------------------Crl.M.C. NO.3376 of 2018 ----------------------------------------------Dated this the 5[th] day of July, 2018** ## **ORDER** Can a Sessions Court to which a case was committed by a Magistrate try it after it enters a finding that the facts of the case do not disclose commission of any offence exclusively triable by it ? This is the only question that arises for consideration in this Crl. M.C. 2. The petitioner is the first accused in S.C.No.196 of 2017 on the file of the Sessions Judge, Kozhikode. The case originated from Crime No.1525 of 2015 of Kasaba Police Station, Kozhikode registered for the offence under Section 304 IPC. In the final report also the accused was shown to have committed the offence under Section 304 IPC. The learned Magistrate committed the case to the Court of Session. The prosecution and the defence were heard under Section 227 Cr.P.C. The learned Sessions Judge took the view that the facts of the case attract only Section 304 A IPC, which is triable by a Magistrate. But he decided to try the case in his court. The petitioner contends that the learned Sessions Judge should have transferred the case to the ## **Crl.M.C. NO.3376 of 2018 2** Chief Judicial Magistrate or another Judicial Magistrate of the First Class. 3. Heard the learned senior counsel appearing for the petitioner and the learned Public Prosecutor. 4. Section 26 of the Criminal Procedure Code provides that subject to the other provisions of the Code any offence under the Indian Penal Code may be tried by the Court of Session. 5. The learned senior counsel appearing for the petitioner relies on the decision of a learned single judge of this court in _**Suresh Vs. State of Kerala (2018 (1) KHC 735),**_ in which it is held that once the Sessions Judge finds that no offence is exclusively triable by it, it shall transfer the case to the Chief Judicial Magistrate the relevant observation is seen in paragraph 13, which runs as follows: “In the case on hand, after forming an opinion that sufficient grounds exist for proceeding against the accused for the offences under Sections 279 and 304A, and framing of charge against the accused for the said offences, though the offences under Section 304A is not one exclusively triable by the Court of Session, the Court below did not transfer the case by order to the Chief Judicial Magistrate or the Judicial First Class Magistrate, but proceeded with the trial on its own. Or in other words, the Court below has ## **Crl.M.C. NO.3376 of 2018 3** proceeded with the trial after framing the charge for the offences knowingly that those are not exclusively triable by it. Thus the Court below has committed an irregularity.” 6. Section 228 Cr.P.C runs as follows: (1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which - (a) is not exclusively triable by the Court of Session, he may, frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate or any other Judicial Magistrate of the first class and direct the accused to appear before the Chief Judicial Magistrate, or, as the case may be, the Judicial Magistrate of the first class, on such date as he deems fit, and thereupon such Magistrate shall try the offence in accordance with the procedure for the trial of warrant-cases instituted on a police report; (b) is exclusively triable by the Court, he shall frame in writing a charge against the accused. ## **Crl.M.C. NO.3376 of 2018 4** (2) Where the Judge frames any charge under clause (b) of sub-section(1), the charge shall be read and explained to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried. 7. The direction in Clause (a) in Sub Section (1) of Section 228 that the Magistrate shall try the offence leaves no room for doubt that only Magistrate can try the case and for that purpose the Sessions Court is bound to transfer it to him, submits the senior counsel. It is his further submission that this is an exception to Section 26 of the Code. 8. The words 'may' and 'shall' appear in Clause (a) Sub Section (1) of Section 228 of the Code. The rule of interpretation is that when 'may' is used in connection with one direction and 'shall' with another direction in the same provision, the former is discretionary and the latter mandatory. The direction in Clause (a) that the Court of Session may frame a charge against the accused by order and transfer the case for trial to the Chief Judicial Magistrate or any other Judicial Magistrate of First Class shows the empowerment of the Sessions Court to do so. On the other hand, the word 'shall' in the direction that the Magistrate shall try the offence makes it clear that he is bound to try the case on the ## **Crl.M.C. NO.3376 of 2018 5** basis of the charge framed and sent to him by the Sessions Court. He cannot commit it again holding that the facts of the case disclose sessions offence. 9. The question involved in this case was considered by this court in _**State of Kerala vs. Vijayan (1977 KLT 458)**_ . The learned judge held: “The language of Section 228 (1)(a) makes it clear that it is only an enabling provision and does not take away the power of the Sessions Court to try the case. In other words, there was no lack of jurisdiction on the part of the Sessions Judge to try the case himself.” Her Lordship further held that the exclusion of sessions offence from the charge framed by the Sessions Court amounts to an order of discharge of the accused in respect of that offence. 10. In _**Sudir v. State of M.P ( AIR 2001 SC 826)**_ the Apex court has held: “In this context, we may point out that a Sessions Judge has the power to try any offence under the Indian Penal Code. It is not necessary for the Sessions Court that the offence should be one exclusively triable by a Court of Session. This power of the Sessions Court can be discerned from a reading of S.26 of the Code. When it is realised that the ## **Crl.M.C. NO.3376 of 2018 6** Sessions Judge has the power to try any offence under the Indian Penal Code and when a case involving offence not exclusively triable by such Court is committed to the Court of Sessions, the Sessions Judge has to exercise a discretion regarding the case which he has to continue for trial in his court and the case which he has to transfer to the Chief Judicial Magistrate.” 11. Section 228(1)(a) is not an exception to Section 26 of the Code since it does not take away the power of the Sessions Court to try offences under the Penal Code. 12. The view taken in _**Suresh v. State of Kerala**_ is _per in_ _curium_ . 13. After considering the materials before him the learned Sessions Judge decided to try the case himself. This court cannot interfere with the discretion exercised by him. In the result, this Crl.M.C is dismissed. **Sd/K.ARAHAM MATHEW JUDGE** pm