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STATE versus THOMAS KOSHY

High Court of Kerala

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STATE v. THOMAS KOSHY - Crl Rev Pet No. 3305 of 2006 [2006] RD-KL 844 (20 September 2006)

IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl Rev Pet No. 3305 of 2006()

1. STATE,REP.BY THE PUBLIC PROSECUTOR,
... Petitioner

Vs

1. THOMAS KOSHY,S/O.KOSHY VAIDHYAN,
... Respondent

For Petitioner :PUBLIC PROSECUTOR

For Respondent : No Appearance

The Hon'ble MR. Justice R.BASANT

Dated :20/09/2006

O R D E R

R. BASANT, J.


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Crl.R.P.No. 3305 of 2006
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Dated this the 20th day of September, 2006

O R D E R

This revision petition is filed by the State, aggrieved by the order produced as Annex. I passed by the Additional Sessions Judge in a prosecution under Sections 452 and 307 I.P.C. The case has already been committed for trial. The matter stands listed for trial to 23.9.2006.

2. While the learned Prosecutor in charge of the trial studied the matter, it was revealed that the material objects have not been sent for chemical examination. The learned Prosecutor thereupon filed a petition before the Sessions Judge to forward the material objects to the Chemical Examiner for examination. The learned Sessions Judge evidently taking note of the fact that the matter is ripe for trial, did not grant the said request. The learned Sessions Judge observed that no application having been made before the Committal court for forwarding the articles for chemical examination, Crl.R.P.No. 3305 of 2006 2 the belated prayer of the Prosecutor is not justified. Accordingly the learned Sessions Judge proceeded to pass the impugned order.

3. The learned Prosecutor submits that there was already a request by the Investigating Officer before the committal court to send the material objects for chemical examination. That request was omitted to be considered and it was in these circumstances that the present application was filed before the learned Sessions Judge.

4. The Registry has raised an objection that the revision petition is not maintainable against the impugned order in as much as it is not a final order. The bar under Section 397(2) Cr.P.C. would apply, it is pointed out.

5. The revision petition was numbered and the matter was heard for admission. The impugned order is certainly not a final order. But the bar under Section 397(2) Cr.P.C. does not apply to all orders which are not final orders. Between the category of final orders and interlocutory orders stricto senso there exists a class of orders which are neither final nor interlocutory, but do belong to the class of intermediate orders. Such intermediate orders, it is trite, are orders which contain decisions of moment affecting the rights of the parties substantially. To such intermediate orders Crl.R.P.No. 3305 of 2006 3 the bar under Section 397(2) cannot obviously apply. There can be no doubt on the position of law applicable in the situation.

6. The question then is whether the impugned order can be held to be a non-interlocutory order which does not attract the bar under Section 397(2). The learned Prosecutor was requested to explain the purpose of such examination by the Chemical Examiner. The only submission is that the weapon of offence has blood marks on it and that has to be confirmed by an expert. I am not persuaded to agree that the impugned order can in these circumstances be reckoned as one containing any decision of moment affecting the rights of the parities substantially.

7. I concur with the objections raised by the Registry. The impugned order being an interlocutory order is not amenable to the revisional jurisdiction of this court. The bar under Section 397(2) Cr.P.C. squarely applies. At this belated hour, when the case is posted for trial to 23.9.2006, I am not certainly persuaded to invoke the revisional jurisdiction against the impugned order.

8. This revision petition is hence dismissed. Crl.R.P.No. 3305 of 2006 4 (R. BASANT) Judge tm


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