Preethi Thomas v. P.A. Thomas and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH** **FRIDAY, THE 21ST JANUARY 2011 / 1ST MAGHA 1932** **Crl.MC.No. 4879 of 2010()** **------------------------------** **AGAINST THE ORDER DATED 03/08/2010 IN CMP.1410/2010 IN CC.1069/2009 of JUDL.MAGISTRATE OF FIRST CLASS-I, ERNAKULAM** **....................** ## **PETITIONER(S): COMPLAINANT** **-------------------------------------** **PREETHI THOMAS, D/O.M.G.THOMAS, AGED 42 YEARS, RESIDING AT 4C, FALCON HEIGHTS, SOUTH JANATHA ROAD, PALARIVATTOM, ERNAKULAM DISTRICT.** **BY ADVS. SRI.C.S.MANU SRI.S.K.PREMRAJ** **RESPONDENT(S): ACCUSED NO. 1 AND 5 TO 12 & STATE** **-----------------------------------------------------------------** **1. P.A.THOMAS, S/O.P.V.ABRAHAM, AGED 51 YEARS, RESIDING AT S-3-XXXV/1302, SANGAM COMPLEX, ST.MARTIN ROAD, PALARIVATTOM, ERNAKULAM DISTRICT.** **2. ALEYKUTTY ABRAHAM, S-3, SANGAM COMPLEX, ST.MARTIN ROAD, PALARIVATTOM, ERNAKULAM DISTRICT.** ## **3. P.M.JOHN,** **S-3, SANGAM COMPLEX, ST.MARTIN ROAD, PALARIVATTOM, ERNAKULAM DISTRICT.** **4. SHRI.M.J.CHERIAN(DIED), S/O.JOSEPH, THAYYIL MADATHIL HOUSE, PALA P.O., VELLAPPATUKARA, LALAM VILLAGE, MEENCHALIL TALUK, DISTRICT KOTTAYAM.** ## **5. P.V.ABRAHAM,** - **S-3, SANGAM COMPLEX, ST.MARTIN ROAD, PALARIVATTOM, ERNAKULAM DISTRICT.** **svs** **.......2/-...** **..2..** ## **Crl.MC.No. 4879/2010()** **6. M.S.ASOKAN, S/O.P.G.SANKARAN NAIR, PULPRAYIL HOUSE, PIDAVOOR, PALLARIMANGALAM, KOTHAMANGALAM.** **7. KUTTY MUHAMMED, KANNOKADA HOUSE, PONEKARA, ERNAKULAM DISTRICT.** ## **8. GOVINDANKUTTY MENON,** **S/O.GOPALA PILLAI, AGED ABOUT 63 YEARS, RESIDING AT ARAKKAPARAMBIL HOUSE, BTS MAMANGALAM CROSS ROAD, EDAPPALLY, ERNAKULAM DISTRICT.** **9. BINDU SIVAN, W/O.SIVAN, AGED ABOUT 37 YEARS, RESIDING AT KANIYATH HOUSE, VADAKODE KARA, THRIKKAKARA NORTH VILLAGE, ERNAKULAM DISTRICT.** ## **10. STATE OF KERALA,** **REP. BY THE S.I.OF POLICE, PALARIVATTOM POLICE STATION, ERNAKLAM DISTRICT (NOTICE TO WHOM MAY BE SERVED ON THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA).** **R10 BY PUBLIC PROSECUTOR SRI.K.J.MOHAMMED ANZAR** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 21/01/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **svs** ## **THOMAS P JOSEPH, J.** ## **----------------------------------------** ## **Crl.M.C.No.4879 of 2010** ## **---------------------------------------** ## **Dated this 21[st] 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 Crl.M.C.No.4879 of 2010 -: 2 :- 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 Crl.M.C.No.4879 of 2010 -: 3 :- 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. Crl.M.C.No.4879 of 2010 -: 4 :- 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 Crl.M.C.No.4879 of 2010 -: 5 :- 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 Crl.M.C.No.4879 of 2010 -: 6 :- 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/-