ORDER

The prayers in the above Criminal Miscellaneous Case filed under Sec.482 of the Cr.PC are as follows:

“(i) Quash Anx.IX order dated 10-12-2018 in Crl.M.P No.14115/2018 in C.C No.250/2016 on the files of the JFCM Court-I, Vaikom.

(ii) Issue a direction to the JFCM Court-I, Vaikom to dispose of the C.C No.250/2016 within a time frame to be fixed by this Honourable Court.

(iii) Pass such other appropriate order as deem just and fit to this Honourable court in the interest of justice.

(iv) Allow this Crl.M.C with costs.”

2. Heard Sri.G.Krishna Kumar, learned counsel appearing for the petitioners (A1 & A2), Sri.B.Jayasurya, learned Public Prosecutor appearing for R1 State of Kerala and Smt.M.Santhy, learned counsel appearing for contesting respondent No.2 (lady defacto complainant).

3. The petitioners herein have been arrayed as accused Nos.1 & 2 in Anx.I, FIR in crime No.54/2015 of Kadathuruthy Police Station, Kottayam District, for offences punishable under Secs.498A and 34 of the IPC, on the basis of the First Information Statement given by the 2^nd respondent lady victim on 15-01-2015 at about 6.45 p.m, in respect of the alleged incidents, which had happened for the period from 14-04-2012 to 01-01-2015, etc.

4. The Police, after investigation has filed Anx-II final report/charge sheet in the said Anx.I FIR in crime No.54/2015 of Kadathuruthy Police Station, which has now led to the pendency of Calendar Case, C.C No.250/2016 on the file of Judicial First Class Magistrate (JFCM) Court-I, Vaikom, Kottayam District, in which the 1^st petitioner herein has been arrayed as accused No.1 and the 2^nd petitioner herein (1^st petitioner's mother) has been arrayed as accused No.2 therein, among the two accused therein, for offences punishable under Secs.498A and 34 of the IPC.

5. After filing of the Final report, the learned Magistrate has framed charges in this case as against the accused persons only for the offence as per Secs.498A and 34 of the IPC. It appears that the 2^nd respondent (CW1/PW1) has consistently taken the stand that the matters in relation to Anx.I FIR and FIS and the materials collected in the course of the investigation are formed part of Anx.II Final report /charge sheet, etc would disclose not only the offence as per Sec.498A of the IPC, but also the offence as per Sec.323 of the IPC. Since the cognizance taken by the learned Magistrate only for substantive offence as per Sec.498A of the IPC, the 2^nd respondent (CW1/PW1) lady victim had subsequently filed Crl.M.P No.1673/2018 in C.C No.250/2016 before the learned Magistrate, praying that in view of the indisputable materials, which formed part of the case records, an additional charge for the offence as per Sec.323 of the IPC may also be incorporated by resort to the discretionary powers conferred on this Court under Sec.216 of the Cr.PC.

6. The learned Magistrate, after hearing both sides has passed order dated 25-04-2018 on Crl.M.P No.1673/2018 in the said C.C No.250/2016, ordering that, in view of the availability of the materials, additional charge for the offence as per Sec.323 of the IPC could be added to the charges already framed. Being aggrieved by the said order dated 25-04-2018 rendered by the trial court, the petitioners herein (accused persons) had preferred Criminal Revision Petition No.11/2018 before the Sessions Court, Kottayam, challenging the abovesaid order dated 25-04-2018 of the trial court altering the additional charge. The allegations and materials, which were the basis for the addition of the charge as per Sec.323 of the IPC, are that, it has been alleged on 01-01-2015 at night in the bedroom, where the spouses were residing, A1 had caught hold of R2 herein by her neck and assaulted her in connivance with A2, etc. An objection was raised by the petitioners herein in the said Revision Petition that the said order dated 25-04-2018 is highly improper inasmuch as the said order has been passed on a non-sitting day of the court and that therefore, the pe