STATE OF KERALA Vs. VARGHESE VAIDYAN

JUDGEMENT

(1.) The question of law raised in the first 5 references and in the next revision petition is practically the same and hence all of them were heard together. They are also disposed of by the present common order.

(2.) Crl. Reference No. 21/57 is by the Session Judge at Alleppey and he has recommended under S.438 of the Code of Criminal Procedure that the committal order which is the basis of Sessions Case No. 32/56 on the file of his court may be quashed since it is an illegal order passed in violation of the mandatory provisions contained in clause (4) of S.207-A of the Code of Criminal Procedure. The ground of illegality is stated to be that the Magistrate who committed the accused to stand their trial in the Sessions Court, has passed the order of committal without examining all the witnesses mentioned in the charge sheet filed by the police as witnesses to the actual commission of the alleged offence. In Crl. Ref. No. 22/57 also a similar recommendation has been made by the same Judge in respect of the committal order which is the basis of Sessions Case No. 42/57 on the file of the same court. There also the defect pointed out is that before passing the committal order, all the witnesses to the actual commission of the offence were not examined. In Crl. Ref. No. 13/58 also an identical recommendation has been made on the identical ground by the Sessions Judge at Ernakulam in respect of the committal order which is the basis of Sessions Case No. 14/58 on the file of the Ernakulam Sessions Court. The position is the same in respect of Crl. Ref. No. 2/59 wherein the Sessions Judge at Alleppey has recommended that the committal order in P.E. No. 5/58 on the file of the First Class Magistrate at Sherthallai may be quashed for the reason that the Magistrate has failed to examine all the witnesses to the actual commission of the offence. In respect of the committal order in P.E. No. 1/59 on the file of the Second Class Magistrate at Karthikapally and which is the basis of Sessions Case No. 24/59 on the file of the Sessions Court at Alleppey, a similar defect has been pointed out by the learned Sessions Judge and he has in Crl. Ref. No.12/59 recommended that the committal order may be quashed.

(3.) Crl. Revision Petition No. 72/58 has been filed on behalf of the second accused in P.E. Case No.1/58 on the file of the Sub-Divisional Magistrates Court at Chengannur. In that case there are no witnesses to the actual commission of the alleged offence. But the case depended entirely on circumstantial evidence. The charge against the first accused is that he committed the offence of murder punishable under S.302, I. P. C., by shooting and killing his wife with a revolver. The charge against the second accused, who is the father of the first accused, is that, with the intention of screening the first accused from legal punishment, he did this to cause disappearance of evidence about the commission of the offence of murder and also deliberately gave false information to the police to mislead them. The learned Magistrate committed both the accused to the Sessions Court to stand their trial for the respective offences alleged against each of them. The committal order was passed without examining any witness, but after consideration of all the documents which had been placed before the Court and copies of which were also given to the accused, and after hearing the prosecution and the defence. The legality of the committal order thus passed without examining any witness, is challenged in the revision petition and the order is sought to be set aside.