Crl.MC.No.5259 of 2015

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **FRIDAY, THE 08TH DAY OF JANUARY 2021 / 18TH POUSHA, 1942** **Crl.MC.No.5259 OF 2015** **AGAINST THE ORDER/JUDGMENT IN SC 322/2013 DATED 29-10-2014 OF II ADDITIONAL DISTRICT & SESSIONS COURT,THODUPUZHA** **AGAINST THE ORDER/JUDGMENT IN CP 12/2013 OF JUDICIAL MAGISTRATE OF FIRST CLASS - I, IDUKKI** **CRIME NO.95/2013 OF IDUKKI POLICE STATION , IDUKKI** ## **PETITIONERS/ACCUSED NO.1 TO 5:** - **1 SURENDRAN AGED 44 YEARS S/O.THANKAPPAN, KULATHOOR VEEDU, VIMALAGIRIKARA, UPPUTHODU VILLAGE, IDUKKI** - **2 ANEESH AGED 24 YEARS S/O.SURENDRAN, KULATHOOR VEEDU, VIMALAGIRIKARA, UPPUTHODU VILLAGE, IDUKKI** - **3 BINDU AGED 40 YEARS W/O.SURENDRAN, KULATHOOR VEEDU, VIMALAGIRIKARA, UPPUTHODU VILLAGE, IDUKKI** - **4 SURENDRAN AGED 50 YEARS, S/O CHELLAPPAN,KAVUNKAL VEEDU VALIYAKAVUMPURAM BHAGOM, BHARANANGANAM VILLAGE, MEENACHIL TALUK,IDUKKI** **5 TOMY AGED 43 YEARS S/O.THOMAS, VALLANAMATTATH VEEDU, KOCHUKARIMBANKARA, UPPUTHODU VILLAGE, IDUKKI** **BY ADVS. SRI.S.RAJEEV SRI.K.K.DHEERENDRAKRISHNAN SRI.V.VINAY** ## **RESPONDENTS/COMPLAINANT/STATE:** Crl.MC.No.5259 OF 2015 2 **1 STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA,ERNAKULAM, (CRIME NO 115/2013 OF IDUKKI POLICE STATION, IDUKKI DISTRICT)** **2 SAJITHA AGED 36 YEARS W/O.BIJU, KANATHIL VEEDU, VIMALAGIRIKARA, UPPUTHODU VILLAGE, IDUKKI DISTRICT 685602** **R1-2 BY ADV. SRI.DEEPAK MOHAN R1 BY ADV. SRI.JOMY GEORGE R1 BY ADV. SMT.A.MINI JOSEPH R1 BY ADV. SRI.P.REJINARK R1 BY ADV. SRI.SEBASTIAN THOMAS R1 BY ADV. SMT.K.B.SONY** **SRI.SANTOSH PETER, SR.PP** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 08.01.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.MC.No.5259 OF 2015 3 ## **ORDER** **Dated this the 8[th] day of January 2021** **Petitioners are accused numbers 1 to 5 in a private complaint filed by the 2[nd] respondent before the Judicial First Class Magistrate court, Idukki. Annexure III is the private complaint filed by the 2[nd] respondent. Annexure IV is the order taking cognizance of the offence.** **2. The case of the 2[nd] respondent is that due to some previous enmity, on 14.02.2013, the 1[st] accused along with other accused wrongfuly restrained the defacto complainant while he was travelling in a Tipper Lorry and assaulted the husband of the complainant. In connection with the above incident Crime No.115/2013 was registered by Idukki Police alleging offences punishable under Sections 341, 323, 324, 430** **506(i) read with Section 34 of the IPC. The offence under Section 3 (1)(X) of the SC/ST (Prevention of Atrocities) Act was also alleged.** Crl.MC.No.5259 OF 2015 4 **After conducting a full fledged investigation, the Police referred the case as per Annexure I refer report. Thereafter, Annexure III complaint was filed and the learned Magistrate taken on file the same as C.P.No.12/2015 for the offences** _**interalia**_ **under Section 3(1)(X) of the SC/ST (PA) Act.** **3. This Crl.M.C. is filed to quash the entire proceedings in C.P.No.12/2015 on the file of the Judicial First Class Magistrate court, Idukki.** **4. Heard the learned counsel for the petitioner and the 2[nd] respondent. Heard the learned Public Prosecutor also.** **5. The learned counsel for the petitioners submitted that the continuatin of Annexure III based on Annexure IV proceedings is an abuse of process of court. According to the learned counsel, the husband of the 2[nd] respondent was an accused in Crime No.95/2013 of Idukki Police Station. That is the main case and the present case is the counter case to that case. The husband of the 2[nd] respondent faced trial before** Crl.MC.No.5259 OF 2015 5 **the Second Additional Sessions Judge in S.C.No.322/2013. He was convicted by the trial court as per judgment dated 29.10.2014 in S.C.No.322/2013. Annexur II is the judgment. The learned counsel submitted that after the acquittal, the present counter case is filed by the 2[nd] respondent on 12.05.2015. According to the counsel, the place of occurrence and time are same in Crime No.95/2013 and in Annexure III private complaint. Therefore, it is a case and counter case. The learned counsel submitted that Annexure III private complaint is time barred. It is also contended that the principles laid down by the Apex Court in** _**Sudir.v. State of M.P.2001(1)KLT 682**_ **is flouted in this case. More over, the learned counsel also submitted that while taking cognizance of the offence by the learned Magistrate as per Annexure IV order, Annexure I refer report is not considered. The learned counsel relied the judgments of this Court in** _**Kader v. State of Kerala 1999(3)KLT 55**_ **and** Crl.MC.No.5259 OF 2015 6 ## _**Parameswaran Nair v. Surendran 2009 (1) KLT 794**_ **.** **The learned counsel also submitted that the learned Magistrate taken on file the case as per Annexure IV order under Section 3(1)(X) SC/ST(PA) Act also. The learned counsel submitted that this is an offence exclusively triable by the Special Court. Therefore, according to the counsel, the learned Magistrate ought to have examined all the witnesses cited in the complaint as per proviso to Section 202 Cr.P.C. The learned counsel submitted that Annexure III and IV proceedings are abuse of process of court and the continuation of the same is unnecessary in the facts and circumstances of the case.** **6. The learned counsel for the 2[nd] respondent submitted that this is not a case in which this Court has to invoke the powers under Section 482 Cr.P.C. According to the learned counsel, the protest complaint was filed immediately after the refer report was filed before the court. The learned counsel submitted that there is absolutely** Crl.MC.No.5259 OF 2015 7 **no delay in filing the protest complaint. The learned counsel submitted that he may be given an opportunity to adduce evidence before the lower court.** **7. The learned Public Prosecutor submitted that the Police after investigation submitted a refer report.** **8. It is an admitted fact that the Crime Number 95/2013 and Crime Number 115/2013 of Idukki Police Station are case and counter case. The husband of the 2[nd] respondent is the accused in Crime No.95/2013. The witnesses in Crime No.95/2013 are the close relatives of the petitioners. It is a settled position that the case and the counter case should be tried simultaneously one after another. This point is considered by the Apex Court in** _**Sudir.v. State of M.P.2001(1)KLT 682**_ **. The relevant paragraph in the above case is extracted here under:** > _“9. It is a salutary practice, when two criminal cases relate to the same incident, they are tried and disposed of by the same court by pronouncing judgments on the same day. Such two different versions of the same incident resulting in two_ Crl.MC.No.5259 OF 2015 8 _criminal cases are compendiously called "case and counter case" by some High Courts and "cross cases" by some other High Courts. Way back in nineteen hundred and twenties a Division Bench of the Madras High Court (Waller, and Cornish, JJ) made a suggestion (In Re Goriparthi Krishtamma - 1929 Madras Weekly Notes 881) that "a case and counter case arising out of the same affair should always, if practicable, be tried by the same court; and each party would represent themselves as having been the innocent victims of the aggression of the other."_ _10. Close to its heels Jackson, J, made an exhortation to the then Legislature to provide a mechanism as a statutory provision for trial of both cases by the same court (vide Krishna Pannadi vs. Emperor AIR 1930 Mad.190). The learned judge said thus:_ _"There is no clear law as regards the procedure in counter cases, a defect which the Legislature ought to remedy. It is a generally recognized rule that such cases should be tried in quick succession by the same Judge, who should not pronounce judgment till the hearing of both cases is finished."_ _11. We are unable to understand why the Legislature is still parrying to incorporate such a salubrious practice as a statutory requirement in the Code. The practical reasons for adopting a procedure that such cross cases shall be tried by the same court, can be summarised thus: (1) It staves off the danger of an accused being convicted before his whole case is before the court. (2) It deters conflicting judgments being delivered upon similar facts; and (3) In reality the case and the counter case are, to all intents and purposes, different or conflicting versions of one incident._ _12. In fact, many High Courts have reiterated the need to follow the said practice as a necessary legal requirement for preventing conflicting decisions regarding one incident. This court has given its approval to the said practice in Nathi Lal & ors. vs. State of U.P. & anr. [1990 (Supp) SCC 145]. The procedure to be followed in such a situation has been succinctly delineated in the said decision and it can be extracted here:_ _"We think that the fair procedure to adopt in a matter like the present where there are cross cases, is to direct that the same learned Judge must try both cross cases one after the other. After the recording of evidence in one case is completed, he_ Crl.MC.No.5259 OF 2015 9 _must hear the arguments but he must reserve the judgment. Thereafter he must proceed to hear the cross case and after recording all the evidence he must hear the arguments but reserve the judgment in that case. The same learned Judge must thereafter dispose of the matters by two separate judgments. In deciding each of the cases, he can rely only on the evidence recorded in that particular case. The evidence recorded in the cross cannot be looked into. Nor can the judge be influenced by whatever is argued in the cross case. Each case must be decided on the basis of the evidence which has been placed on record in that particular case without being influenced in any manner by the evidence or arguments urged in the cross case. But both the judgments must be pronounced by the same learned Judge one after the other."_ _13. How to implement the said scheme in a situation where one of the two cases (relating to the same incident) is charge-sheeted or complained of, involves offences or offence exclusively triable by a Court of Sessions, but none of the offences involved in the other case is exclusively triable by the Sessions Court. The magistrate before whom the former case reaches has no escape from committing the case to the Sessions Court as provided in Section 209 of the Code. Once the said case is committed to the Sessions Court, thereafter it is governed by the provisions submitted in Chapter XVIII of the Code. Though, the next case cannot be committed in accordance with Section 209 of the Code, the magistrate has, nevertheless, power to commit the case to the court of Sessions, albeit none of the offences involved therein is exclusively triable by the Sessions Court. Section 323 is incorporated in the Code to meet similar cases also. That section reads thus:_ _"If, in any inquiry into an offence or a trial before a Magistrate, it appears to him at any stage of the proceedings before signing judgment that the case is one which ought to be tried by the Court of Session, he shall commit it to that Court under the provisions hereinbefore contained and thereupon the provisions of chapter XVIII shall apply to the commitment so made."_ _14. The above section does not make an inroad into Section 209 because the former is intended to cover cases to which Section 209 does not apply. When a magistrate has committed a case on account of his legislative compulsion by Section 209, its cross case, having no offence exclusively triable by the Sessions Court, must appear to the magistrate as one_ Crl.MC.No.5259 OF 2015 10 _which ought to be tried by the same Court of Sessions. We have already adverted to the sturdy reasons as to why it should be so. Hence, the magistrate can exercise the special power conferred on him by virtue of Section 323 of the Code when he commits the cross case also to the Court of Sessions. Commitment under Section 209 and 323 might be through two different channels, but once they are committed their subsequent flow could only be through the stream channelised by the provisions contained in Chapter XVIII.”_ **9. Admittedly, the main case which is Crime** **No.95/2013 concluded as per Annexure II judgment in which the husband of the 2nd respondent is already convicted and sentenced. Therefore, there is no chance for a simulteneous trial of Annexure III complaint and Crime No.95/2013. Hence the continuation of Annexure III will definitely prejudice the interest of the petitioners/accused.** **10. Annexure IV is the order by which learned Magistrate taken on file as C.P.No.12/2015. Annexure IV order is extracted hereunder:** _“Heard. Perused the records and statement of witness u/s 202, I am of the opinion that this is sufficient to proceed against the accused. Hence the complaint is taken on file as C.P.No.12/15 for the offence punishable u/s 323, 324, 308, 506(i) r/w 34 IPC 3(1)(X) of SC/ST (Prevention of Atrocities)Act 1989. Take steps to issue summons. Return of summons – 30.6.15.”_ Crl.MC.No.5259 OF 2015 11 # **11. A perusal of the above order will show** **that there is nothing to show that the learned Magistrate considered Annexure I refer report while taking cognizance of the above offences. This Court in** _**Kader v. State of Kerala 1999(3)KLT 55**_ **observed like this:** _“7. The Court noted that the scope of enquiry under S.202 is the ascertainment of the truth or falsity of the allegations made in the complaint on the materials placed by the complainant before the Court for the limited purpose of finding out whether the prima facie case for issue of process has been made out and for deciding the question purely from the point of view of the complainant without at all adverting to any defence that the accused may have. Nevertheless, the Court has a duty to protect the interest of the absent accused also because at the particular stage, the accused has no say in the matter and the matter is decided without notice to him. It is, therefore, open to the Magistrate to scrutinise carefully the allegations made in the complaint with a view to prevent the accused therein from being called upon to face obviously frivolous complaint and to find what material there is to support the allegations made in the complaint. The Magistrate has a duty not only to bring to book a person or persons against whom grave allegations are made in the complaint but also to protect the interest of the absent accused in such matters. What all should take cognizance of the offence, will depend upon the facts and circumstances of each case. He has necessarily to consider the allegations made in the complaint and the statement of the complainant recorded under S.200 Cr.P.C as also of the witnesses examined under S.202 of the Cr.P.C. Along with that, he has also to consider the result of enquiry or investigation, if any, held by the police. It cannot be said that the said data is not an essential factor. The consideration of the materials under S.202 of the Cr.P.C. is not an empty formality and cannot be done in a perfunctory or mechanical manner or by adopting a superficial approach.”_ Crl.MC.No.5259 OF 2015 12 ## **12. Similarly in** _**Parameswaran Nair v.**_ _**Surendran 2009 (1) KLT 794**_ **, this Court observed** ## **like this:** “12. _If the original complaint stood dismissed by the acceptance of the refer report submitted after investigation the protest complaint if any filed can only be treated as a second complaint. If so, the protest complaint will lie only if there was a manifest error or manifest miscarriage of justice in the earlier order or new facts which the complainant had no knowledge of or with reasonable diligence could not have brought forward in the previous proceedings is adduced. When this is the legal position, it is not lawful to the Magistrate to ignore the final report submitted by the Police under Section 173(2) of the Code. Magistrate is bound to consider the final report and decide which of the options available to him is to be exercised.”_ **13. In the light of the above decisions, according to me Annexure IV order is** **unsustainable. As I said earlier there is nothing to show in Annexure IV order to the effect that the learned Magistrate considered Annexure I refer report while passing that order. Therefore, Annexure IV order is unsustainable.** **14. Then the next question is what is the purpose in remanding this matter to the lower court. Admittely, the main case is already disposed by the learned Sessions Judge as per** Crl.MC.No.5259 OF 2015 13 **Annexure II judgment. Therefore, there cannot be a simultaneous trial as held by the Apex Court in** _**Sudir's**_ **case (** _**Supra**_ **). Hence, there is no purpose in remanding this matter to the learned Magistrate. Moreover, the petitioners will be prejudiced if Annexure III is proceeded because the main case is already disposed as evident by Annexure II judgment. Moreover, proviso to Section 202 Cr.P.C. says that if it appears to the Magistrate that the offence committed is triable exclusively by the court of Sessions, he shall call up on the complainant to produce all his witnesses and examine them. Admittedly, there are five witnesses mentioned in Annexure III complaint. It is an admitted fact that only four witnesses were examined before the learned Magistrate in Section 202 Cr.P.C. enquiry. On that ground also the order is unsustainable.** **15. The alleged incident in this case happened on 14.02.2013. The Police after investigation submitted Annexure I refer report on 14.05.2015.** Crl.MC.No.5259 OF 2015 14 **Thereafter, the main case was disposed by the learned Sessions Judge on 29.10.2014. Thereafter Annexure III complaint was filed on 12.05.2015. According to me the continuation of Annexures III and IV proceedings is an abuse of process of court in the light of the facts and circumstances of this case and also for the reasons mentioned above.** **Therefore, this Crl.M.C. is allowed and all further proceedings in C.P.No.12/2015 on the file of the Judicial First Class Magistrate court, Idukki are quashed.** **Sd/P.V.KUNHIKRISHNAN JUDGE** DM Crl.MC.No.5259 OF 2015 15 ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** **ANNEXURE -I** **TRUE COPY OF THE FINAL REPORT IN CRIME NO. 115/2013 OF IDUKKI POLICE STATION** **ANNEXURE -II** **TRUE COPY OF THE JUDGMENT DTD 29/10/2014 IN SC NO 322/2013 DISPOSED BY THE II ADDL.SESSIONS JUDGE,THODUPUZHA** **ANNEXURE -III** **CERTIFIED COPY OF THE PRIVATE COMPLAINT FILED BY THE 2ND RESPONDENT ON 12/5/2015 BEFORE THE JFCM, IDUKKI** **ANNEXURE -IV** **CERTIFIED COPY OF THE ORDER TAKING COGNIZANCE DATED 20.05.2015 AS C.P.NO.12/2015 BY JFCM, IDUKKI** ## **RESPONDENTS' EXHIBITS:** **ANNEXURE R2(A):** **TRUE COPY OF THE DISCHARGE CARD DATED 18/02/2013 ISSUED FROM THE MEDICAL COLLEGE HOSPITAL, KOTTAYAM.** **ANNEXURE R2(B): TRUE COPY OF THE REPLY DATED 19/09/2014 ISSUED BY THE PUBLIC INFORMATION OFFICER, JUDICIAL FIRST CLASS MAGISTRATE COURT, IDUKKI.** **//TRUE COPY//** **PA TO JUDGE**