IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 2777 of 2007()
1. K.J.VINOD S/O. K.C.JOSEPH,
... Petitioner
Vs
1. ALMAYA VEDI,(LAYMENS FORUM),HAVING ITS
... Respondent
2. ADV. DR. P.C. MATHEW
3. STATE OF KERALA
For Petitioner :SRI.M.P.MADHAVANKUTTY
For Respondent :SRI.M.J.THOMAS
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :01/06/2009
O R D E R
M.SASIDHARAN NAMBIAR,J.
===========================
CRL.M.C.No.2777 OF 2007
===========================
Dated this the 1st day of June,2009
ORDER
Petitioner is the second accused in C.C.35/2006 on
the file of Judicial First Class Magistrate Court -II,
Kottayam. The case was taken cognizance by the
Magistrate on the basis of Annexure I complaint filed
by the first complainant Almaya Vedi represented by its
Secretary who is shown as the second complainant. When
it was brought to their notice that a joint complaint
by two persons is not maintainable, Annexure V
application was filed with a prayer to remove numbers 1
and 2 shown in the cause title. That petition was
filed under section 216 of Code of Criminal Procedure.
Petitioner opposed the application contending that
petition is not maintainable. Under Annexure V order
learned Magistrate found that Section 216 of the Code
of Criminal Procedure was wrongly quoted and still
the application is to be considered on merit. It was
found that when a joint complaint is filed by more than
one complainant, for that reason alone the complaint
cannot be dismissed and an opportunity is to be granted
Crl.M.C.2777/2007 2
to cure the defect. But it was found that the mode adopted
by the complainants is not correct and by removing numbers
1 and 2 from the cause title, the defect cannot be cured.
Therefore the petition was dismissed. Thereafter second
complainant filed Annexure VII petition to delete him from
the array of the complainant and to permit him to be a
witness in the complaint. It is also pointed out that the
first complainant, who would be the sole complainant if the
petition is allowed, is represented by its Secretary the
second complainant. Petitioner filed Annexure VII
objection contending that the petition would amount to
review of the earlier order and when the earlier
application was dismissed petitioner is not entitled to
file another application for the same relief. Under
Annexure IX order learned Magistrate allowed the
application. It is challenged in this petition filed under
section 482 of the Code of Criminal Procedure.
2. Learned counsel appearing for the petitioner and
learned counsel appearing for the respondents were heard.
3. It is not disputed that a joint complaint filed by
two persons is not maintainable. It is also not disputed
that such a complaint cannot be dismissed for that sole
reason and an opportunity is to be granted to cure the
defect. How such a complaint could be cured is dealt by
Crl.M.C.2777/2007 3
this court in Zain Sait v. Intex-Painter, Interior
Decorators (1993 (1) KLT 532). Annexure VII application
was filed consequent to Annexure VI order dismissing the
earlier petition for the reason that the mode adopted by
the complainant to cure the defect is not correct. By
Annexure VII petition the complainant sought to cure the
defect by permitting the first complainant to proceed with
the complaint and the second complainant, who is none other
then the Secretary of the first complainant, who
represented by first complainant to be a witness. Learned
Magistrate rightly allowed the petition under Annexure IX
order. I cannot agree with the submission of the learned
counsel that Annexure IX order would amount to review of
Annexure VI order. If under Annexure VI order, the earlier
petition was dismissed on the ground that complainants are
not entitled to cure the defect by filing a joint complaint
and under Annexure IX order the defect was not allowed on
the ground that defect cannot be cured it could have been
interpreted that the second order would amount to review of
the first order. But that is not the case herein. Learned
Magistrate himself found that the defect could be cured.
Under Annexure VI order, permission sought for was not
granted to cure the defect for the sole reason that the
Crl.M.C.2777/2007 4
mode adopted is not correct. Therefore when a proper
application is filed under Annexure IX order and it was
allowed it cannot be termed as review of the earlier order.
As per Annexure IX order the learned Magistrate allowed the
prayer to treat the complaint as the one filed by first
petitioner and second petitioner as one of the witnesses.
I find no reason to interfere with the order.
Petition is dismissed.
M.SASIDHARAN NAMBIAR
JUDGE
tpl/-
M.SASIDHARAN NAMBIAR, J.
———————
W.P.(C).NO. /06
———————
JUDGMENT
SEPTEMBER,2006
