IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.

FRIDAY, THE 25^TH DAY OF FEBRUARY 2022 / 6TH PHALGUNA, 1943 WP(CRL.) NO. 194 OF 2022 [Against the Order dated 18.01.2020 passed in Crl.RP No.65/2019 by the Additional Sessions Judge-V, Thiruvananthapuram which arose out of order passed in CMP No.2680/2019 by the Chief Judicial Magistrate, Thiruvananthapuram]

PETITIONER/S:

JOHNKUTTY M.V.

AGED 56 YEARS T.C.25/4243(1), VIKAS BHAVAN.P.O, THIRUVANANTHAPURAM-695033.

KERALA, INDIA.

BY ADV JOHNKUTTY M.V.(Party-In-Person)

RESPONDENT/S:

STATE OF KERALA REPRESENTED BY HOME SECRETARY, HOME DEPARTMENT, GOVT.SECRETARIAT,STATUE, THIRUVANANTHAPURAM, REPRESENTED BY PUBLIC PROSECUTOR.

OTHER PRESENT:

ADV. SUDHEER GOPALAKRISHANAN – PP THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON

25.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

JUDGMENT This W.P.(Crl) is filed by the accused in C.C.No.226 of

2017 pending before the Chief Judicial Magistrate Court, Thiruvananthapuram, challenging Exhibits P20 and P23 orders passed by the Chief Judicial Magistrate Court, Thiruvananthapuram and the Additional Sessions Court-V, Thiruvananthapuram respectively. The facts of the case leading to the filing of this Writ Petition are as follows:

Crime No.1133/2011 of Museum Police Station was registered against the petitioner for the offences punishable under Sections 341,353 and 323 of the Indian Penal Code. After completing the investigation, the police submitted Ext.P2 final report before the Judicial First Class Magistrate Court-III, Thiruvananthapuram. Cognizance was taken thereon and the particulars of charge were read over to the petitioner herein. The prosecution witnesses were also examined and when the matter came up for examination of the petitioner under Section 313 of the Code of Criminal Procedure (Cr.PC), it was noticed by the learned Magistrate that the nature of allegations made in the final report attract the offence under section 332 of the Indian Penal Code. As the offence under Section 332 is a first class offence and the jurisdiction to try the first class offence is vested with the Chief Judicial Magistrate, Thiruvananthapuram, the learned Magistrate addressed to the Chief Judicial Magistrate with respect to the same. On the basis of the same, by invoking the powers under Section 410 Cr.PC, the Chief Judicial Magistrate had withdrawn the aforesaid case from the Judicial First Class Magistrate Court-III, Thiruvananthapuram and taken the said file into the Chief Judicial Magistrate Court. Thereafter, on appearance of the accused, the learned Chief Judicial Magistrate framed charges against the petitioner for the offences punishable under Sections 341 and 332 of IPC.

2. Challenging the order of framing charge, the petitioner filed Crl.RP No. 35/2017 before the Sessions Court, Thiruvananthapuram which resulted in Ext.P9 order. As per Ext.P9 order dated 19.6.2017 the order of framing charge against the petitioner was set aside and the matter was remanded back to the Chief Judicial Magistrate for fresh consideration. While the matter was pending before the Chief Judicial Magistrate, another Crl.R.P.was submitted by the petitioner numbered as Crl.R.P.No.36/2018 challenging the order passed by the learned Chief Judicial Magistrate withdrawing the criminal proceedings from JFCM III, Thiruvananthapuram and refiling the same to CJM court, by invoking his powers under section 410 of the Cr.PC. The said Crl.R.P.was filed along with a petition to condone the delay of about 20 months. The learned Sessions Judge dismissed the said application as it was found that no sufficient reason was highlighted for condoning the delay. It was also taken note of the fact that, the petitioner has already filed Crl.R.P challenging the order of framing charge and obtained a favourable order. In such circumstances, it was observed by the learned Sessions Judge that subsequent application challenging the order of withdrawing