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.
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Crl.M.C.No.4879 of 2010
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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
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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
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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.
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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
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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/-