High Court Kerala High Court

Preethi Thomas vs P.A.Thomas on 21 January, 2011

Kerala High Court
Preethi Thomas vs P.A.Thomas on 21 January, 2011
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.MC.No. 4879 of 2010()


1. PREETHI THOMAS, D/O.M.G.THOMAS,
                      ...  Petitioner

                        Vs



1. P.A.THOMAS, S/O.P.V.ABRAHAM,
                       ...       Respondent

2. ALEYKUTTY ABRAHAM, S-3,

3. P.M.JOHN,

4. SHRI.M.J.CHERIAN(DIED),

5. P.V.ABRAHAM,

6. M.S.ASOKAN, S/O.P.G.SANKARAN NAIR,

7. KUTTY MUHAMMED, KANNOKADA HOUSE,

8. GOVINDANKUTTY MENON,

9. BINDU SIVAN, W/O.SIVAN,

10. STATE OF KERALA,

                For Petitioner  :SRI.C.S.MANU

                For Respondent  :PUBLIC PROSECUTOR

The Hon'ble MR. Justice THOMAS P.JOSEPH

 Dated :21/01/2011

 O R D E R
                  THOMAS P JOSEPH, J.

                 ----------------------------------------

                    Crl.M.C.No.4879 of 2010

                  ---------------------------------------

              Dated this 21st day of January, 2011

                               ORDER

Petitioner alleged that accused No.1, making use of a

forged power of attorney as if it is executed by him transferred

properties belonging to his relatives and thereby committed

various offences. Since there were more than one transaction

based on the allegedly forged power of attorney the police

registered two cases and submitted final reports in those cases.

Based on the final reports, learned Judicial First Class

Magistrate-I, Ernakulam took cognizance and filed C.C.Nos.3418

of 2005 and 4190 of 2006. In C.C.No.3418 of 2005 offences

punishable under Secs.419, 420, 465, 468 and 201 r/w Sec.34 of

the Indian Penal Code (for short, “the IPC”) are involved. In

C.C.No.4190 of 2006 offences punishable under Secs.420, 465,

468, 201 r/w Sec.34 of the IPC are involved. Respondent Nos.1,

2 and 5 are the accused in those cases. Dissatisfied with the

manner in which police investigated and chargesheeted those

cases, petitioner filed a private complaint and it was taken on file

as C.C.No.1069 of 2009 against 12 accused including the accused

in the police cases. Of them, one expired and the case against

Crl.M.C.No.4879 of 2010
-: 2 :-

accused No.2 was quashed as per the order of this court in

Crl.M.C.No.48 of 2010. Accused Nos.3 and 4 in C.C.No.1069 of

2009 being public servants, summons was not issued to them. In

C.C.No.1069 of 2009 offences involved are under Secs.109, 120,

120B, 201, 414, 423, 424, 427, 465, 467, 468, 471, 472, 477 and

506 of the IPC. While so, petitioner filed C.M.P.No.1410 of 2010

before the learned Magistrate to order joint trial of the police

cases with the complaint case invoking Sec.210 of the Code of

Criminal Procedure (for short, “the Code”). That application was

dismissed by Annexure-A2, order dated August 3, 2010 holding

that the complaint case has to be tried separately. That order is

under challenge. Learned counsel submitted that observations

and findings made by the learned Magistrate in the impugned

order are not correct, these cases are not mutually exclusive or

destructive, nor materially different so that there could be no

joint trial. According to the learned counsel sub section (2) of

Sec.210 of the Code has to be read disjunctively from sub section

(1). Learned counsel submitted that if all the cases are not jointly

tried, evidence which some of the accused in C.C.No.1069 of

2009 (private complaint) may give as prosecution witness in the

police case cannot be used by petitioner in view of Sec.132 of the

Crl.M.C.No.4879 of 2010
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Evidence Act. It is also pointed out by learned counsel that after

examining those persons as witnesses in the prosecution cases,

there is no point in proceeding against them as accused in

C.C.No.1069 of 2009.

2. Sec.210(1) of the Code obviously has no application

since that provision applies only in cases where in a case

instituted otherwise than on a police report (ie. a complaint

case), it is made to appear to the Magistrate during the course of

the inquiry or trial (of the complaint case), that an investigation

by the police is in progress in relation to the offence which is the

subject matter of inquiry or trial in the complaint case, the

Magistrate shall stay the proceedings of such inquiry or trial and

call for a report on the matter from the police officer conducting

investigation. Argument is that sub section (2) of Sec.210 of the

Code has to be read independently from sub section (1). I am

afraid I cannot give my assent to that argument. Sub section (2)

of Sec.210 relates to the procedure to be followed in the case of

trial of cases falling under subsec. (1) of Sec.210 of the Code.

Sub section (2) has no application to the factual situation

emerging in the case.

Crl.M.C.No.4879 of 2010
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3. Then the next question is whether invoking Sec.223 of

the Code the complaint case could be tried jointly with the police

cases. That provision states which all persons could be charged

and tried together and enumerates the cases in which such joint

charge and trial are possible. I stated the nature of the offences

involved in the respective cases. Accused Nos.6, 7, 9, 11 and 12

in the complaint case are cited as witnesses for the prosecution

in the police cases. I note that offences attributed in the private

complaint are substantially different from the police cases.

Accused are different, charges are also different. Evidence to be

adduced in the complaint case is different from the police cases.

In such a situation, question is whether the complaint case could

be tried along with the police cases. This court in Mani v.

Swaminathan (1986 KLT 170) has considered the question and

held that clubbing and consolidation of cases arising on a police

report and complaint where the prosecution version in the police

case and the complaint case are materially different,

contradictory and mutually exclusive is not permissible even

under S.223 of the Code. It was held that the two cases should

be tried together by the same court but not consolidated.

Evidence should be recorded in both the cases one after the

Crl.M.C.No.4879 of 2010
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other. After recording the prosecution evidence in one case

judgment should be withheld. Then evidence in the other case

has to be recorded. Thereafter both the cases should be

simultaneously disposed of by two separate judgments taking

care that the judgment in one case is not based on the evidence

recorded in the other. In Peter v. Kurian (1994 (1) KLT 17)

referring to the decision in Mani v. Swaminathan (supra) it is

held that if the cases are substantially different from each other,

though the same incident is the basis for both the cases the court

may have to bear in mind possibility of such trial causing

prejudice to the defendants. In Samuel Mathai v. State of

Kerala (2007 (4) KLT 736) also, it is held that where the

prosecution versions in the police case and complaint case are

materially different, clubbing or consolidation is not permissible.

4. In the present case, as I stated some of the accused in

C.C.No.1069 of 2009 (complaint case) figure as witnesses in the

police case and the offences attributed to the accused in

C.C.No.1069 of 2009 also are not the same as involved in the

police cases. If the cases are clubbed and consolidated, there is

the difficulty of some of the accused in the complaint case being

examined as prosecution witnesses in the same trial which is not

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permissible under any provision of the Code. I am satisfied that

the cases are substantially different involving different accused

and offences as well and in the circumstance consolidation and

joint trial of the complaint case with the police cases even

invoking Sec.223 of the Code is not permissible. I do not find

reason to interfere with the order of the learned Magistrate. But,

as pointed out in Mani v. Swaminathan (supra) police cases

and complaint case are to be tried by the same court, recording

evidence in the police cases and complaint case separately but

are to be disposed of simultaneously though by separate

judgments ensuring the evidence in one case is not used in the

another. Learned Magistrate shall ensure that the procedure

prescribed in Mani v. Swaminathan (supra) is followed.

With the above direction this criminal miscellaneous case is

dismissed.

(THOMAS P JOSEPH, JUDGE)

Sbna/-