CRL.A.No.407 of 2008 and Crl.Rev.Pet.No.2702 of 2008

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **MONDAY, THE 08TH DAY OF JUNE 2020 / 18TH JYAISHTA, 1942** ## **CRL.A.No.407 OF 2008** **AGAINST THE JUDGMENT IN SC 666/2005 & 668/2005 DATED 06-02-2008 OF ADDITIONAL SESSIONS COURT (ADHOC-I), ERNAKULAM** ## **APPELLANTS/ACCUSED:** - **1 GIREESH S/O BALAKRISHNAN,VETTILAMPARAMBU, PANAYAPPILLY JUNCTION, PANAYAPPILLY.** - **2 RAJESH, S/O. BALAKRISHNAN VETTILAMPARAMBU, PANAYAPPILLY JUNCTION, PANAYAPPILLY.** - **3 BALAKRISHNAN, S/O. AYYAPPAN VETTILAMPARAMBU, PANAYAPPILLY JUNCTION, PANAYAPPILLY.** - **4 MURUKESH SO. BALAKRISHNAN VETTILAMPARAMBU, PANAYAPPILLY JUNCTION, PANAYAPPILLY.** **BY ADV. SRI.S.RAJEEV** ## **RESPONDENT/COMPLAINANT:** - **1 RAHIM S/O KUNJU MUHAMMED,BENGLAWPARAMNBIL, MATTANCHERRY.** **2 STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM (CRIME NO.233 OF 2001 OF MATTANCHERRY, POLICE STATION).** **R1 BY ADV. SRI.JOHN VIPIN R1 BY ADV. SRI.SHAIJAN C.GEORGE R1 BY ADV. SMT.S.A.SHERLY R1 BY ADV. SMT.SAJITHA GEORGE** ## **SR.PP. B.JAYASURYA** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 08.06.2020, ALONG WITH Crl.Rev.Pet.2702/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.A.No.407/2008 & Crl.R.P.No.2702/2008 2 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **MONDAY, THE 08TH DAY OF JUNE 2020 / 18TH JYAISHTA, 1942** **Crl.Rev.Pet.No.2702 OF 2008** **AGAINST THE JUDGMENT IN SC 667/2005 DATED 06-02-2008 OF ADDITIONAL SESSIONS COURT (ADHOC-I), ERNAKULAM** **AGAINST THE ORDER/JUDGMENT IN CP 57/2005 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II, KOCHI** ## **REVISION PETITIONER/COMPLAINANT** **RAJESH S/O BALAKRISHNAN, MATTANCHERRY, KOCHI TALUK.** **BY ADV. SRI.S.RAJEEV** ## **RESPONDENTS/COMPLAINANT & ACCUSED 1 TO 4:** |**1**|**STATE OF KERALA**| |---|---| ||**REPRESENTED BY PUBLIC PROSECUTOR,**| ||**HIGH COURT OF KERALA, ERNAKULAM.**| ||**(CRIME NO.234/ 01 OF MATTANCHERRY POLICE STATION)**| |**2**|**NASSIM S/O.KOCHUMUHAMMED**| ||**H.NO.7/806, KALLARAKKAPPARAMBIL,**| ||**CHAKKAMADOM DESOM,**| ||**MATTANCHERRY.**| |**3**|**KABEER S/O.MUHAMMED H.NO.5/1169**| ||**PETTIKKARAN PARAMBIL KOMBARAMUKKU DESOM,**| ||**MATTANCHERRY.**| |**4**|**RAHIM S/O.UMMER C.C.VII/298 (A)**| ||**NORTH ANDAMKULAM,**| ||**PANAYAPPILLY DESOM,**| ||**THOPPUMPADY.**| Crl.A.No.407/2008 & Crl.R.P.No.2702/2008 3 **5 RAHIM S/O.KUNJU MUHAMMED C.C.5/379 BENGLAWPARAMBIL, MATTANCHERRY.** **R1 BY ADV. Public Prosecutor R5 BY ADV. SRI.SHAIJAN C.GEORGE R5 BY ADV. SMT.SAJITHA GEORGE** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 08.06.2020, ALONG WITH CRL.A.407/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.A.No.407/2008 & Crl.R.P.No.2702/2008 4 ## **JUDGMENT** ## **Dated this the 8th day of June 2020** Crl.Appeal No.407 of 2008 is filed against the common judgment dated 6.2.2008 in Session Case No.666 of 2005 and 668 of 2005. Crl.R.P.No.2702 of 2008 is filed against the judgment dated 6.2.2008 in Sessions Case No.667 of 2005. Sessions Case Nos.666 of 2005 and 668 of 2005 are the main cases and Sessions Case No.667 of 2005 is the counter case relating to a same incident. Since the Criminal Appeal and revision are arising out of a case and counter case, I think this appeal and revision can be disposed of by a common judgment. 2. Firstly I will consider Crl.Appeal No.407 of 2008, which arises from Sessions Case No.666 of 2005 and Sessions Case No.668 of 2005. Crl.Appeal No.407 of 2008 : Sessions Case Nos.666 & 668 of 2005 :- The Sessions Case No.666 of 2005 is a private complaint filed by one Rehim, Son of Kunju Muhammed against four accused alleging offences punishable under Sections 120B, 201, Crl.A.No.407/2008 & Crl.R.P.No.2702/2008 5 341, 326, 323 and 307 read with Section 34 IPC. Sessions Case No. 668 of 2005 was a case charge sheeted by the Sub Inspector of Police, Mattancherry Police Station in Crime No.233 of 2001 alleging offences punishable under Sections 326 and 323 read with Section 34 IPC. In the police charge case, there are only three accused. In the cause title of the impugned judgment, it is mentioned that, there are four accused in Sessions Case No.666 of 2005 and Sessions Case No.668 of 2005. Actually in Sessions Case No.666 of 2005, there are four accused and in Sessions Case No.668 of 2005, there are only three accused. In the cause title of the impugned judgment, Murukesh, Son of Balakrishnan is arrayed as fourth accused in Sessions Case No.668 of 2005. This is factually incorrect. There are only three accused in this case. Here is a case, where, there is a final report submitted by the police and a private complaint filed by the injured in the same incident. In the police charge case, there are three accused, whereas in the private complaint there are four accused. In the police charge case, the offences alleged are under Sections 326, 323 and 34 IPC, whereas in the private complaint, the offences alleged are under Sections 120B, 201, 341, 326, 323 and 307 Crl.A.No.407/2008 & Crl.R.P.No.2702/2008 6 read with Section 34 IPC. 3. Therefore, it is clear that in the police charge case, there are only three accused and in the private complaint, there are four accused. The incident is the same, but there are different accused in both the cases and the offences alleged are also different. The learned Sessions Judge tried both these cases together jointly. Both the cases are disposed of by a common judgment. It is clearly stated that, both the cases are tried together jointly. 4. The learned counsel for the appellant in Crl.Appeal No.407 of 2008 raised a preliminary objection. According to the counsel, the course adopted by the learned Sessions Judge is in total violation of Section 210(3) Cr.P.C. The learned Sessions Judge erred in clubbing these cases together, especially when the police report is silent about one of the accused in the complaint case. It is also stated that, the offences alleged in the police report case and in the private complaint are different, even though there are common offences alleged. The counsel for the first respondent supported the judgment and observed that, even though, both the cases were tried together, the learned Sessions Crl.A.No.407/2008 & Crl.R.P.No.2702/2008 7 Judge considered, all the contentions in both the cases separately and therefore, there is no illegality in disposing the case together. The learned Public Prosecutor also supported the case of the first respondent. 5. After hearing both sides, I think this appeal can be disposed, based on the preliminary point raised by the counsel for the appellant, without going through the merits of the case. Section 210 Cr.P.C. says about the procedure to be followed when there is a complaint case and police investigation in respect of the same offence. Section 210 of the Cr.P.C. is extracted herein below : ## _“_ _**210. Procedure to be followed when there is a complaint case and police investigation in respect of the same offence** ”_ _(1) Where in a case instituted otherwise than on a police report (hereinafter referred to as a complaint case), it is made to appear to the Magistrate, during the course of the inquiry or trial held by him, that an investigation by the police is in progress in relation to the offence which is the subject-matter of the inquiry or trial held by him, the Magistrate shall stay the proceedings of such inquiry or trial and call for the report on the matter_ Crl.A.No.407/2008 & Crl.R.P.No.2702/2008 8 _from the police officer conducting the investigation._ _(2) If a report is made by the investigating police officer under Section 173 and on such report cognizance of any offence is taken by the Magistrate against any person who is an accused in the complaint case, the Magistrate shall inquire into or try together the complaint case and the case arising out of the police report as if both the cases were instituted on a police report._ _(3) If the police report does not relate to any accused in the complaint case or if the Magistrate does not take cognizance of any offence on the police report, he shall proceed with the inquiry or trial, which was stayed by him, in accordance with the provisions of this Code.”_ 6. Section 210(1) Cr.P.C. says that, where in a case instituted otherwise than on a police report, it is made to appear to the Magistrate, during the course of the inquiry or trial held by him, that an investigation by the police is in progress in relation to the offence which is the subject-matter of the inquiry or trial held by him, the Magistrate shall stay the proceedings of such inquiry or trial and call for the report on the matter from the police officer conducting the investigation. 7. Section 210(2) says that, if a report is made by the Crl.A.No.407/2008 & Crl.R.P.No.2702/2008 9 investigating police officer under Section 173 and on such report cognizance of any offence is taken by the Magistrate against any person who is an accused in the complaint case, the Magistrate shall inquire or try together the complaint case and the case arising out of the police report as if both the cases were instituted on a police report. 8. Thereafter, Section 210 (3) Cr.P.C. comes into the picture. In Section 210(3) Cr.P.C., it is stated that, if the police report does not relate to any accused in the complaint case or if the Magistrate does not take cognizance of any offence on the police report, he shall proceed with the inquiry or trial, which stayed by him, in accordance with the provisions of this Code. 9. The Apex Court in **Pal @ Palla v. State of Uttar Pradesh (2010 KHC 4710)** considered this point. The relevant paragraphs 22 and 23 are extracted herein below : _“22. S.210 Cr.P.C. provides the procedure to be followed when there is a complaint case and police investigation in respect of the same offence. Subsection (1) of S.210 provides that when in a case instituted otherwise than on a police report, namely, a complaint case, the Magistrate is informed during the course of inquiry or trial that an investigation by the_ Crl.A.No.407/2008 & Crl.R.P.No.2702/2008 10 _police is in progress in relation to the offence which is the subject matter of inquiry or trial held by him, the Magistrate is required to stay the proceedings of such inquiry or trial and to call for a report on the matter from the Police Officer conducting the investigation. Subsection (2) provides that if a report is made by the investigating Officer under S.173 and on such report cognizance of any offence is taken by the Magistrate against any person, who is an accused in a complaint case, the Magistrate shall inquire into or try the two cases together, as if both the cases had been instituted on a police report. Sub-section (3) provides that if the police report does not relate to any accused in the complaint case, or if the Magistrate does not take cognizance of any offence on a police report, she shall proceed with the inquiry or trial which was stayed by him, in accordance with the provisions of the Code._ _23. Although, it will appear from the above that under Section 210 Cr.P.C. the Magistrate may try the two cases arising out of a police report and a private complaint together, the same, in our view, contemplates a situation where having taken cognizance of an offence in respect of an accused in a complaint case, in a separate police investigation such a person is again made an accused, then the Magistrate may inquire into or try together the complaint case and the case arising out of the police report as if both the cases were instituted on a police report. That, however, is not the_ Crl.A.No.407/2008 & Crl.R.P.No.2702/2008 11 _fact situation in the instant case, since the accused are different in the two separate proceedings and the situation has, in fact, arisen where prejudice in all possibility is likely to be caused in a single trial where a person is both an accused and a witness in view of the two separate proceedings out of which the trial arises. In our view, this is a case where the decision in Harjinder Singh's case (supra) would be more apposite. In the said case, the question of Article 20(2) of the Constitution, as well as Section 300 Cr.P.C., relating to double jeopardy was considered. A similar situation has arisen in this case where the version in the complaint case and the police report are totally different, though, arising out of the same incident. In our view, this is a case where the two trials should be held simultaneously but not as a single trial.”_ The Apex Court clearly stated that, if the accused are different in the complaint case and the police report, the two trials should be held simultaneously, but not as a single trial. The Apex Court held that, if the version in the complaint case and the police report are totally different, though, arising out of the same incident, in such cases two trials should be held simultaneously, but not as a single trial . 10. This Court in **Samuel Mathai and others v. State of Kerala and another [2007 (3) KHC 682]** observed that even Crl.A.No.407/2008 & Crl.R.P.No.2702/2008 12 though both the private complaint as well as the police charge case arise out of the same occurrence, the private complaint contains additional allegations with regard to offences, which are offences in addition to those involved in the police charge case, in such cases, clubbing or consolidation is not permissible. Both the cases cannot be merged together for trying them as single case. _“3. I am afraid that I cannot agree with the above submissions. Even though both the private complaint as well as the police charge case arise out of the same occurrence, the private complaint contains additional allegations with regard to offences punishable under Sections 379 and 326 IPC which are offences in addition to those involved in the police charge case. Thus, the prosecution versions in the police case and private complaint are materially different. In such a case, clubbing or consolidation is not permissible. Both the cases cannot be merged together for trying them as one single case (See-Harijinder Singh v. State of Punjab, 1985(1) SCC 422 : 1985 SCC (Cri) 93: AIR 1985 SC 404 and Abdul Salam v. Inspector of Police, 1994 Cri LJ 578 (Madras). They can only be separately tried in quick succession and judgments pronounced in quick succession. In other words, evidence should be recorded in both the cases one after the other. The judgment in the case tried first_ Crl.A.No.407/2008 & Crl.R.P.No.2702/2008 13 _should be reserved until the trial of the second case is also over and then the judgments are to be pronounced one after the other. (See – Padmanabhan Mani v. Swaminathan, 1986 KHC 50 : 1986 KLT 170). When the trial of the police charge commenced, the petitioners were not able to convince the Magistrate that the prosecution version in both the police case and complaint case was substantially the same and that there was no reliable material to support the additional offences in the complaint case. The petitioners having stood trial in the police charge case without any demur and without any request to try the private complaint also along with the police charge case, they cannot now take exception to the separate trial of the complaint case by the Magistrate which is in accordance with the law laid down by the Supreme Court and this Court. I see no reason to interfere with the order framing charge against the revision petitioners. It is needless to caution the Magistrate that the judgment in the police charge case will have to be pronounced only after the conclusion of the trial in the complaint case.”_ 11. In **Harjinder Singh v. State of Punjab and others** **[AIR (1985) SC 404]** , the Supreme Court observed that police charge case and complaint case cannot be consolidated when there are materially different or contrary and mutually exclusive Crl.A.No.407/2008 & Crl.R.P.No.2702/2008 14 cases to be forwarded in the complaint case and in the police charge case. The relevant portion of the judgment is extracted herein below : _“9. We fail to comprehend the implications that would arise if the order passed by the learned Additional Sessions Judge as upheld by the High Court was to be implemented. The case presents a feature which is rather disturbing. In the special leave petition, there is a specific allegation made by the complainant that the accused are influential persons and they exerted pressure on the police as a result of which in the police challan case the complainant's party was shown to be the aggressors. It is further alleged that the police in order to achieve this object have presented a challan which is not supported by any of the witnesses of the occurrence and although the complainant Harjinder Singh received gunshot wounds, he has not even been cited as a witness for the prosecution. It is said that the case against the accused is sought to be supported by the testimony of Chanan Singh, Head Constable, Pawan Kumar, Constable and the doctors who performed the post mortem examinations. We have set out these allegations only for the purpose of showing the nature of the case against the accused in the police challan case. The complaint presents a_ Crl.A.No.407/2008 & Crl.R.P.No.2702/2008 15 _different picture altogether. The prosecution case as set out in the complaint is at complete variance with that in the police challan. In our judgment, it is not permissible for the Court under Section 223 of the Code to club and consolidate the case on a police challan and the case on a complaint where the prosecution versions in the police challan case and the complaint case are materially different, contradictory and mutually exclusive.”_ 12. Even though the incident alleged in a complaint case and police charge case are same, if there are difference about narration of the incident, and if the offences alleged in both the cases are different and some of the accused in private complaint are not there in the police charge case, the police charge case and the private complaint cannot be clubbed together. Therefore, the procedure adopted by the learned Sessions Judge in this case is illegal. In such situation, without going into the merits of the case, I think it is better to remand this matter to the lower court for fresh trial in accordance with law, based on the principles laid down by this Court and the Apex Court. – Crl.R.P.No.2702 of 2008 S.C.No.667 of 2005 13. This revision is filed against the acquittal order in S.C.No.667 of 2005 on the file of the Additional Sessions Judge Crl.A.No.407/2008 & Crl.R.P.No.2702/2008 16 (Adhoc-I), Ernakulam. This is the counter case to Sessions Case No.666 of 2005 and 668 of 2005. In this case also, when the case came up for consideration, the learned counsel appearing for the revision petitioner raised a preliminary objection. 14. According to the counsel, since Sessions Case No.667 of 2005 is the counter case to Sessions Case Nos.666 and 668 of 2005, as per the settled position, the same Public Prosecutor should not conduct both cases. According to the learned counsel, Sessions Case No.667 of 2005, which is the counter case, and Sessions Case Nos.666 and 668 of 2005, which is the main case, is conducted by the same Public Prosecutor. The counsel submitted that in **Moidotty K. v. Usman and another (2016(2)KHC 564)** , this Court observed that, the same Public Prosecutor should not conduct the case and its counter case and he has to choose only one of the two cases and conduct the prosecution in it. The relevant paragraph 8 is extracted herein below : _“8. A close scrutiny of the procedure prescribed by the Apex Court and various High Courts in this regard it is clear that both the cases must be tried separately and independently by the same Judge_ Crl.A.No.407/2008 & Crl.R.P.No.2702/2008 17 _and decided on the basis of evidence in each case without being influenced by the materials and evidence in the other case. The procedure laid down is that first the evidence should be recorded in one case and both the parties must be heard but judgment should not be pronounced. Immediately after the trial of one case the other case should be taken up for recording of evidence. Once the hearing is complete in both cases the same should be decided simultaneously by separate judgments. The same Public Prosecutor should not conduct “ – ” both case and its counter case and that he has to choose only one of the two cases and conduct the prosecution in it. In Code of Criminal Procedure or in the Evidence Act there is no provision dealing with the trial of case and counter – case by different Public Prosecutors when investigation was conducted by one or different Investigating Officer. Though there is no clear cut guidelines in this regard, for transparency it would be desirable to conduct the trial by two Public Prosecutors or two Assistant Public Prosecutors. If the trial was conducted by the same Prosecutor, there is no illegality since no procedure prescribed in this regard. But fairness requires that the same Public Prosecutor should not conduct both “case and counter-case” and the Prosecutor has to choose one of the two cases and conduct the prosecution in it._ Crl.A.No.407/2008 & Crl.R.P.No.2702/2008 18 _A close look at the procedure and the object behind the trial would clearly suggest that the Judge should make up his mind regarding guilt or otherwise of the parties on the basis of the “entire case” and not on the basis of the case of the parties in each individual case. In order to avoid the chances of conflicting decisions, the “whole case” has to be taken and not as two independent cases.”(Emphasis supplied)_ 15. Similarly the counsel also produced a judgment of Karnataka High Court in **Mansoor and others v. State of Karnataka and another (2018 KHC 4707)** . The relevant paragraph of the judgment is extracted herein below : _“7. In this particular case, the argument of the learned counsel for the petitioners that, the investigation should have been conducted by the two investigating officers, is not acceptable. Therefore, the proceedings are not vitiated by the investigation done by the same Investigating Officer in the two cases i.e., in a case and counter case. However, the learned counsel is right in submitting that the learned trial Judge is erroneously proceeding with the the matter with the help of the same Public Prosecutor attached to the said court. In fact, the said aspect should be taken into consideration by the learned Session Judge and see that a separate prosecutor is appointed for the_ Crl.A.No.407/2008 & Crl.R.P.No.2702/2008 19 _purpose of conducting a counter case. If the Sessions Judge is of the opinion that the said case is a case and counter case, if for the purpose of framing charges in a counter case, the court has to hear arguments of the counsel for the accused and as well as the learned Public Prosecutor. In that context also, in my opinion before framing of charges and before recording the evidence of the witness, it is just and necessary for the Sessions Judge to see that a separate Public Prosecutor is appointed to proceed with the counter case. Otherwise, the trial may be vitiated and it may become an incurable defect later.”_ Based on these judgments, the learned counsel submitted that there is substantial prejudice to the revision petitioner because the same Public Prosecutor conducted the case and counter case. 16. Heard the learned counsel for the revision petitioner, the learned counsel for the respondents/accused and the learned Public Prosecutor. 17. After hearing both sides, and in the light of the decision of this Court in Moidotty K. v. Usman and another (2016 (2) KHC 564), I think this case also can be remanded to the lower court especially for the reason that I am remanding the main case to the lower court for fresh disposal. Crl.A.No.407/2008 & Crl.R.P.No.2702/2008 20 Hence the above Crl.Appeal and Crl.Revision are allowed. - (i) The common judgment dated 6.2.2008 in S.C.No.666 of 2005 and 668 of 2005 on the file of the Additional Sessions Judge, Adhoc – I, Ernakulam is set aside and the case is remanded to the trial court. - (ii) The trial court shall dispose of Sessions Case No.666 of 2005 and Sessions Case No.668 of 2005 in accordance with Section 210(3) Cr.P.C. and in the light of the observations made by this Court in this judgment. - (iii) Crl.R.P.No.2702 of 2008 is allowed. - (iv) The judgment in Sessions Case No.667 of 2005 dated 6.2.2008 on the file of the Additional Sessions Judge (Adhoc-I), Ernakulam is set aside and the case is remanded to the trial court. - (v) The learned Sessions Judge will see that Sessions Case No.667 of 2005, which is the counter case to S.C.Nos.666 and 668 of 2005, is conducted by a separate Public Prosecutor. With these observations, the appeal and revision are allowed and remanded. ## **Sd/P.V.KUNHIKRISHNAN JUDGE** csl