IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl MC No. 2000 of 2006()
1. ABRAHAM,
... Petitioner
2. RETHISH @ KUTTAN, AGED 19 YEARS,
3. REGISH S/O. ABRAHAM, AGED 20 YEARS,
Vs
1. E.T.CHANDRAN,
... Respondent
2. SUB INSPECTOR OF POLICE,
For Petitioner :SRI.K.C.PETER
For Respondent :SRI.ANTONY JOSEPH.K.
The Hon'ble MR. Justice R.BASANT
Dated :04/12/2006
O R D E R
R. BASANT, J.
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CRL.M.C.NO. 2000 OF 2006
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Dated this the 4th day of December, 2006
ORDER
About an incident which took place on 15/6/2004, the
rival contestants initiated steps for prosecution. On the
complaint filed by the 1st petitioner, the police filed a charge
sheet. Cognizance was taken by the learned Magistrate. The
said case ended in acquittal as per judgment dated 27/4/2006.
Against the said judgment of acquittal, a revision was filed
and the same is pending before this Court as Crl.R.P.
No.3190/06, it is submitted.
2. The 1st respondent herein, who was the sole accused
in that case charged by the police, filed a private complaint on
16/9/04. Cognizance was taken on that complaint and
summons has been issued to the petitioners raising
allegations, inter alia, under Secs.324 and 506(1) read with
Sec.34 of the IPC. They pray that the private complaint
initiated against them by the 1st respondent may be quashed
by invoking the powers under Sec.482 of the Cr.P.C.
3. What are the grounds? The learned counsel for the
CRL.M.C.NO. 2000 OF 2006 -: 2 :-
petitioners submits that a case and a counter case deserve to be
tried together. In this case that is not possible now because the
main case (according to the petitioner) has already been
disposed of. Inasmuch as trial of the case and counter case
together/simultaneously is not possible, the prosecution initiated
against the petitioners is liable to be quashed, it is submitted.
4. From principles, statutory provisions or precedents I
am unable to accept this contention. Of course, the courts have
repeatedly held that the salutary principle of the case and the
counter case being tried by the same court has to be observed.
But occasions may arise where compliance with that becomes
impossible for various reasons. Here is a case where such
simultaneous disposal of the case and the counter case has
become impossible because of the conduct of the parties who did
not bring it to the notice of the court that a counter case is
pending when the main case was disposed of. That error or
irregularity committed by the court cannot certainly confer on
the petitioners any undeserved advantage. The prosecution
initiated against the petitioners cannot certainly be quashed for
that reason. The challenge raised must, in these circumstances,
fail.
CRL.M.C.NO. 2000 OF 2006 -: 3 :-
5. The learned counsel for the petitioners submits that the
petitioners may be given an opportunity to claim discharge. No
permission of this Court is required. If circumstances justify
such discharge, discharge can be claimed under Sec.245(2) of
the Cr.P.C. In the alternative, after completing the enquiry
under Sec.245 of the Cr.P.C., discharge under Sec.245(1) of the
Cr.P.C. can also be claimed. I need only mention that the
dismissal of this Crl.M.C. will not in any way fetter the rights of
the petitioners to claim discharge or acquittal at the appropriate
stage.
6. With the above observations, this Crl.M.C. is dismissed.
Sd/-
(R. BASANT, JUDGE)
Nan/
//true copy//
P.S. to Judge