HIGH COURT OF KERALA
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(1.) THE petitioner is prosecution witness number 1 in c. C. 1152/60 on the file of the Sub Magistrate, Chittur and respondents 1 to 4 are the accused in the case.
(2.) THE petitioner's case is that he was beaten with spade handles and bamboo sticks resulting in injuries. He preferred a complaint to the Kollengode Police and the police after investigation charge-sheeted the respondents for offences punishable under S. 323 & 325 read with S. 34 IPC. On a perusal of the relevant records the Sub Magistrate framed charges under s. 325. After the examination of the petitioner and the medical officer he made a report to the District Magistrate that as he was of the view that offences under S. 506 (2) and 326 of the IPC. were made out, the case may be transferred to a court of competent jurisdiction. THE learned district Magistrate after going through the evidence and seeing the instruments alleged to have been used by the accused, found that the Sub Magistrate's view that offences under S. 506 (2) and 326 were revealed, was wrong and ordered the magistrate to proceed with the trial of the case. That order was taken in revision before the Sessions judge with the prayer that the case may either be transferred to a court of competent jurisdiction or if the Sessions Judge was of the view that he had no jurisdiction to interfere to make a reference to the High Court under S. 435 & 436 Criminal Procedure Code. THE learned Sessions Judge dismissed the petition finding that he had no jurisdiction to direct the Magistrate to frame charges for the graver offences if any since the trial had already commenced. As the learned judge did not find any incorrectness, impropriety or illegality in the proceedings of the lower court, the prayer to refer the case to the High court was also rejected. THE order of the Sessions Judge was taken in revision to this court and this court refused to interfere with the order and rejected the petition. Subsequently, the trial of the case was proceeded with and it ended in the acquittal of the accused. THE present revision is against the order of acquittal.
It may be mentioned even at the outset, that the order of acquittal is based solely on the appreciation of the oral evidence and though the case was one charged by the police, the State has not attacked the correctness of the order of acquittal by an appeal. Having gone through the judgment of the learned Magistrate and the relevant papers I am not of the view that a case is made out for interference with the order of acquittal. The learned Magistrate has gone into the evidence of the eye witnesses examined in support of the complaint and has given reasons for his inability to act on their evidence. The defence case that at about the time of the incident, the house of the father of accused 1 to 3 was attacked by Pw. 6 and others and Pw. 1 might have sustained injuries while participating in that attack, was also considered in the light of the defence evidence and the learned Magistrate came to the conclusion that the defence evidence is worthy of acceptance. The main ground on which the order of acquittal is attacked is that the appreciation of the evidence of the prosecution witnesses has been vitiated by the wrong view taken by the Magistrate, that the long delay of the eye witnesses in giving evidence in the case was due to their desire to harass the accused. Though I am not inclined to agree with the Magistrate when he says that the delay of the witnesses in coming forward to give evidence in the case was prompted by their desire to harass the accused, and the Magistrate appears to have expended much time and energy in discussing the question of delay, yet the judgment read as a whole indicates that he thought it unsafe to act on the evidence of the prosecution witness on account of other relevant considerations and felt that the defence case as to how the complainant came to sustain the injuries is probable. Hence I do not find any justifiable reason for interfering with the order of acquittal.
The learned counsel for the revision petitioner attacked the maintainability of the order of acquittal on another ground which is not taken in the revision petition. According to him, the order of the district Magistrate directing the Sub Magistrate to proceed with the trial of the case was passed without jurisdiction and as such the trial of the case by the Sub Magistrate is also without jurisdiction. The learned counsel placed reliance upon the decision of the Bombay High Court in Haidarsha Lalsha Pathen v. Dhondu Abaji Sandhor (AIR. 1942 Bom. 84 ). The question whether S. 346 (2) Cr. P. C. authorises the Magistrate to whom a report is made under S. 348 (1) to refer the case to be tried by the same magistrate came up for consideration before a Full Bench of the Madras High court in Polur Reddy v. Munusami Reddi (AIR. 1930 Madras 765) and it was held that the terms of Sub-section (2) S. 346 are quite clear and sufficiently wide to embrance a reference back of the case to the Magistrate who originally submitted it. The same question came up before the Kerala High Court & in p. S. Narayana Iyer v. Subramonia Iyer (1960 KLT. 28) this Court after considering the conflicting views held by the Bombay and Madras High Courts preferred to follow the full bench decision of the Madras High Court. I am in respectful agreement with that view.
(3.) THE order of acquittal is therefore confirmed and this revision petition is dismissed. Dismissed.;
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