Mohanan v. Ajee K. John Thampi @ Ajith Thampi, John Thampi and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **THURSDAY, THE 11TH DAY OF AUGUST 2016/20TH SRAVANA, 1938** ## **Crl.MC.No. 5105 of 2013 ()** **--------------------------CMP.NO. 1021/2012 OF ADDL.CHIEF JUDICIAL MAGISTRATE COURT, ERNAKULAM --------------------** ## **PETITIONER/COMPLAINANT:-** **-------------------------------------------** **MOHANAN, S/O.KUNJAN,AGED 54 YEARS, THAIKKOTTATHIL, EAST TO STELLE MARY CONVENT, UDAYAMPEROOR, MANAKUNNAM VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT.** **BY ADVS.SRI.P.M.JOSHI SRI.K.T.SAJU SMT.SIJI K.PAUL SMT.ELIZABETH KOSHY** ## **RESPONDENTS/COMPLAINANT:-** **-------------------------------------------------** **1. AJEEV K.JOHN THAMPI @ AJITH THAMPI, S/O.JOHN THAMPI, AGED 30 YEARS, KIDANGETH HOUSE, UDAYAMPEROOR, MANAKUNNAM VILLAGE, ERNAKULAM DISTRICT.** **2. JOHN THAMPI, S/O.VARKEY,AGED 54 YEARS, KIDANGETH HOUSE, UDAYAMPEROOR,** **MANAKUNNAM VILLAGE, ERNAKULAM DISTRICT.** **3. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** **R2 BY ADVS. SRI.P.P.PRAVEEN SRI.JAISON JOSEPH** **R3 BY PUBLIC PROSECUTOR SRI.AMJAD ALI** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 11-08-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **sts** **Crl.MC.No. 5105 of 2013 () ---------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' ANNEXURES:** **---------------------------------------------** **ANNEX 1 THE COMPLAINT/CMP NO.1021/12 ON THE FILE ADDITIONAL CHIEF JUDICIAL MAGISTRATE COURT, ERNAKULAM. ANNEX 2. THE ORDER DT 20.04.13 IN CMP 1021/12 ON THE FILE ADDITINAL CHIEF JUDICIAL MAGISTRATE COURT, ERNAKULAM. ANNEX 3. CMP.NO.2989/13 IN CMP NO.1021/12 ON THE FILE ADDITIONAL CHIEF JUDICIAL MAGISTRATE COURT, ERNAKULAM. ANNEX 4. THE ORDER DT 18.10.13 IN CMP 2989/13 ON THE FILE ADDITIONAL CHIEF JUDICIAL MAGISTRATE COURT, ERNAKULAM.** **RESPONDENT(S)' ANNEXURES: NIL ------------------------------------------------** ## **/TRUE COPY/** **P.A.TO JUDGE** **sts** ## **RAJA VIJAYARAGHAVAN V., J. ---------------------------------Crl.M.C. No. 5105 of 2013 ---------------------------------------------Dated this the 11[th ] day of August, 2016** ## **O R D E R** 1.The petitioner, a member of the Scheduled Caste Community, is alleged to have been assaulted by the respondents 1 and 2, who are son and father respectively, on 21.4.2006 at 8 a.m. On the basis of the information furnished by the petitioner, Crime No. 237 of 2006 was registered by the sub Inspector of Police Udayamperoor Police Station. Investigation was conducted and final report was laid before the jurisdictional Magistrate against the respondents. - 2.On receipt of summons from the Court, the petitioner realized to his dismay that the offence under section 3 (1) - (x) of Act 33 of 1989 and section 341 of the IPC was not incorporated. The accused was charged only under section 323, 325 r/w section 34 of the IPC. - 3.Aggrieved by the same, the petitioner instituted a **Crl.M.C. No. 5105 of 2013** **2** complaint before the court below. The learned Magistrate conducted the requisite inquiry under section 202 of the Code and the statement of the petitioner and the witnesses produced by him were recorded . Thereafter, by Annexure A 2 order, the learned Magistrate took the view, that there is no ground to proceed under section 3 (1) (x) of Act 33 of 1989 or section 341 of the IPC . Taking note of the fact that CC No 777/06 which arose on the basis of the police report was also pending against the respondents 1 and 2 , the learned Magistrate came to the conclusion that the provisions of section 210 (2) of the Code has to be invoked and ordered that both the cases are to be tried together as if both the cases were instituted on a police report . - 4.Immediately thereafter the petitioner filed Annexure A3 praying that the case instituted on a complaint be numbered separately and to keep its identity separate. - 5.Annexure A3 was dismissed by the learned Magistrate by ## **Crl.M.C. No. 5105 of 2013** ## **3** Annexure A4 order rejecting the prayer of the petitioner . According to the court below, cognizance was taken for the offence on the police report for the very same offence and against the very same accused and therefore cognizance cannot be taken on the basis of a private complaint. It was held that there is no necessary to allot a number to the private complaint and issue summons to the accused . - 6.The above orders are under challenge in this petition . - 7.Heard the learned counsel appearing for the petitioner, the learned counsel for the respondent nos. 1 and 2 and the learned Public Prosecutor. The learned counsel appearing for the petitioner confines his submissions and contends that the reasoning of the learned Magistrate that section 210 of the Code would apply to the facts of the Code is untenable.The learned counsel relies on the decision of this court in **Peter v. Kurian (** 1994 (1) KLT 17) and contends that in the instant case, the police ## **Crl.M.C. No. 5105 of 2013** **4** charge had been laid after completion of investigation and it was thereafter that the complaint was filed by the petitioner. No investigation was in progress when the complaint was laid in the instant case and therefore the said provision would not apply. It is finally contended that the petitioner would be satisfied if the procedure to be followed as narrated in Peter (supra) is followed by the learned Magistrate . - 8.Heard the learned counsel appearing for the respondents 1 and 2 and also the learned public prosecutor. - 9.At the outset itself it has to be stated that the finding of the learned Magistrate that he has to proceed in tune with section 210 of the Code cannot be justified. Under Section 210 of the Code, when a complaint case is pending while police investigation is in progress in relation to the offence which is subject matter of the complaint case, the Magistrate is to wait until final report is laid by the police. After the final report is laid "the Magistrate **Crl.M.C. No. 5105 of 2013 5** - 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. No doubt, the procedure envisaged in S.210 of the Code is consolidation of the two cases and not merely a joint trial. S.210(3) of the Code permits the Magistrate to make a departure if the police report does not relate to any accused in the complaint case in which event the Magistrate is free to proceed in accordance with the provisions of the Code. - 10.In the case on hand the accused and the complainant are the same . The offences alleged in both the cases are one and the same and both the cases relate to the same incident . The allegations are also substantially the same in both the cases. - 11.The practical method has been highlighted in para 5 of Peter ( supra ) which reads as follows. 5. _When S.223 says that such cases "may be charged and tried together" what is contemplated is joint trial of such cases. The_ **Crl.M.C. No. 5105 of 2013** **6** _practical method to achieve the same is the following: There need be only one trial for both cases. One of the cases can be treated as the main case. All witnesses can be examined and all documents can be marked in that case. Examination of all accused as provided in S.313 of the Code can also be held in that case. All such evidence can be treated as evidence adduced in the other case also. Both cases can be disposed of by a common judgment. If the aforesaid procedure is adopted there is no consolidation of the two cases together. If two cases are consolidated with each other identity of at lease one case would be lost. But in a joint trial, as indicated above, identity of both cases are kept alive though separate evidence is not collected in both cases._ 12. Annexures 2 and 4 in so far as it runs counter to the above cannot be sustained. The same is set aside. The learned Magistrate is therefore, is directed to follow the above procedure and proceed with the case in accordance with law. Sd/- **RAJA VIJAYARAGHAVAN V., JUDGE** SKS //TRUE COPY// P.A. TO JUDGE