- (1.) HEARD learned counsel for the petitioner.
(2.) THIS writ petition has been preferred against the order dated 23.06.2006 by which cognizance has been taken by the learned trial court for the offence, triable by the court of Sessions. Earlier also the petitioner had moved this Court by filing Cr.M.P. No. 1372 of 2008 with the same plea that since mandatory provisions of Section 202(2) of the Code of Criminal Procedure has not been followed which requires examination of all the witnesses named by the complainant in a case, where offence, alleged to have been committed, is triable by the Sessions Court , therefore, the order of cognizance is bad in law. The said Criminal Miscellaneous petition was dismissed vide order dated 9th November, 2009 on the ground that petitioner failed to show how prejudice has been caused or is likely to be caused to the accused person on account of non compliance of the aforesaid provision. The said decision was given by the learned Single Judge of this Court after considering the judgment of the Hon'ble Supreme Court , relied upon by the learned counsel for the petitioner , delivered in the case of Rosy and another vs. State of Kerala and others (AIR 2000 SC 637).
(3.) THE petitioner again approached this Court by submitting the present petition for the same relief and learned counsel for the petitioner vehemently submitted that since mandatory provisions of law has not been complied with and, therefore, taking of cognizance by the trial court is bad in law. It is also submitted that the learned Single Judge vide order dated 9th November, 2009 dismissed the earlier petition of the writ petitioner merely on the ground that the petitioner failed to show what prejudice is likely to cause and in the present petition the petitioner has given the facts to show that because of these facts mentioned in the petition he will be prejudiced because of non examination of the witnesses. Learned counsel for the petitioner also relied upon the judgment of the Hon'ble Supreme Court delivered in the case of Superintendent and Remembrancer of Legal Affairs, W.B. vs. Mohan Singh , reported in AIR 1975 Supreme Court, 1002) , wherein it has been held that rejection of the prior application for quashing of the charge is no bar for maintaining the second petition for quashing of the charge. The said case was under consideration under the old Cr.P.C 1898. However, the ratio is that , according to the learned counsel for the petitioner, the second petition is maintainable. ;