RAMESH S/O AYYAPPAN; MURALEEDHARAN S/O AYYAPPAN; RAVEENDRAN S/O AYYAPPAN; SHAJI S/O BALAN; BABURAJAN S/O LATE CHATHANKUTTY; MANI S/O KARI; HANEEFA S/O SAIDALI; SURESH BABU S/O KUNJADI; JAYAN S/O KARTHIAYANI; SATHEESAN S/O GOVINDAN; MURALI S/O THAMI; PIYOOSH S/O KUNHIKILIYAN; BABU S/O KUNHAN; VIPIN S/O KARI; SUNI S/O KUNJADI; AJESH S/O KUNHAN; DINESHAN S/O KUNHAN; NARAYANANKUTTY S/O KUNHIPALAN; BALAKRISHNAN S/O KUNHIPALAN; SUDHAKARAN S/O NADI; SURESH S/O NADI v. THE STATE OF KERALA AND NJARAKKATTIL KRISHNAN

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT :** ## **THE HONOURABLE MR. JUSTICE V.K.MOHANAN** ## **WEDNESDAY, THE 9TH MARCH 2011 / 18TH PHALGUNA 1932** **Crl.Rev.Pet.No. 4181 of 2007()** **-----------------------------AGAINST THE ORDER DATED 19/10/2007 IN CRMP. 859/2007 IN S.C.NO. 384/2006 of ADDL.SESSIONS COURT (FAST TRACK-III), MANJERI** **....................** ## **REVISION PETITIONERS/ ACCUSED:-** **-------------------------------------------------------** **1. RAMESH, S/O.AYYAPPAN, NJARAKKATTIL HOUSE, MANKADA, MALAPPURAM DISTRICT.** **2. MURALEEDHARAN, S/O.AYYAPPAN, PANDIKKADAN HOUSE, MANKADA, MALAPPURAM DISTRICT.** **3. RAVEENDRAN, S/O.AYYAPPAN, MANKADA, MALAPPURAM DISTRICT.** **4. SHAJI, S/O. BALAN, MANKADA, MALAPPURAM DISTRICT.** **5. BABURAJAN, S/O.LATE CHATHANKUTTY, MANKADA, MALAPPURAM DISTRICT.** **6. MANI, S/O.KARI, MANKADA, MALAPPURAM DISTRICT.** **7. HANEEFA, S/O.SAIDALI, THOTTATHODIYIL HOUSE, MANKADA, MALAPPURAM DISTRICT.** **8. SURESH BABU, S/O.KUNJADI, NJARAKKATTIL HOUSE, MANKADA, MALAPPURAM DISTRICT.** **9. JAYAN, S/O.KARTHIAYANI, NJARAKKATTIL HOUSE, MANKADA, MALAPPURAM DISTRICT.** **10. SATHEESAN, S/O.GOVINDAN, NJARAKKATTIL HOUSE, MANKADA, MALAPPURAM DISTRICT.** **11. MURALI, S/O.THAMI, NJARAKKATTIL HOUSE, MANKADA, MALAPPURAM DISTRICT.** **12. PIYOOSH, S/O.KUNHIKILIYAN, NJARAKKATTIL HOUSE, MANKADA, MALAPPURAM DISTRICT.** **......2/-** Crl.Rev. Pet. No. 4181of 2007 --2-- **13. BABU, S/O.KUNHAN, NJARAKKATTIL HOUSE, MANKADA, MALAPPURAM DISTRICT.** **14. VIPIN, S/O.KARI, NJARAKKATTIL HOUSE, MANKADA, MALAPPURAM DISTRICT.** **15. SUNI, S/O.KUNJADI, NJARAKKATTIL HOUSE, MANKADA, MALAPPURAM DISTRICT.** **16. AJESH, S/O.KUNHAN, NJARAKKATTIL HOUSE, MANKADA, MALAPPURAM DISTRICT.** **17. DINESHAN, S/O.KUNHAN, NJARAKKATTIL HOUSE, MANKADA, MALAPPURAM DISTRICT.** **18. NARAYANANKUTTY, S/O.KUNHIPALAN, NJARAKKATTIL HOUSE, MANKADA, MALAPPURAM DISTRICT.** **19. BALAKRISHNAN, S/O.KUNHIPALAN, NJARAKKATTIL HOUSE, MANKADA, MALAPPURAM DISTRICT.** **20. SUDHAKARAN, S/O.NADI, NJARAKKATTIL HOUSE, MANKADA, MALAPPURAM DISTRICT.** **21. SURESH, S/O.NADI, NJARAKKATTIL HOUSE, MANKADA, MALAPPURAM DISTRICT.** - **BY ADV. SRI.BABU S. NAIR** ## **RESPONDENTS/ STATE & COMPLAINANT:** **-------------------------------------------------------------** **1. THE STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE, PERINTHALMANNA POLICE STATION - THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31.** **2. NJARAKKATTIL KRISHNAN, S/O.AYYAPPAN, NJARAKKATTIL HOUSE, MANKADA, MALAPPURAM DISTRICT.** - **R1 BY PUBLIC PROSECUTOR SHRI.V.TEKCHAND R2 BY ADV.SRI.P.VIJAYAKUMAR .** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 09/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** KRK ## **V.K.MOHANAN, J** ## **------------------------------Crl.R.P.NO.4181 OF 2007** ## **---------------------------------------------Dated this the 9[th] day of March, 2011.** ## **ORDER** The accused who are 21 in numbers in Sessions Case Nos.380/2006 and 384/2006 of the court of Addl. Sessions Judge (Fast Track-III), Manjeri are the revision petitioners. The challenge in this revision petition is against the order dated 19.10.2007 in Crl.M.P.No.859/2007 the above court by which the learned Sessions Judge allowed the above petition moved by the Public Prosecutor of that court for the joint trial of SC Nos.384/2006 and 380/2006, pending in the said court for trial. 2. I have heard Sri.Babu S. Nair learned counsel appearing for the revision petitioners and Sri.P.Vijayakumar learned counsel appearing for the second respondent and also Mr.V.Tekchand learned Public Prosecutor for the State. 3. The short facts which led to the filing of the present revision petition are as follows: The Crime No.556/2002 for Perinthalmanna Police Station was registered in the said station on 14.7.2002 on the basis of the FI statement given by the ## **Crl.R.P.NO.4181 OF 2007 2** second respondent herein, who is the defacto complainant, for the offences punishable under Sections 143,147,148,341,324, 326,427, 120B, 307 r/w Section 149 of IPC. The incident in that case was taken place on 13.7.2002 at about 7.00 p.m. In the FI statement the defacto complainant had mentioned the names of 23 accused persons. When the Police filed the report under Section 173(2) of Cr.P.C they have arrayed only 11 persons as accused only and deleted the offences of Section 307 r/w Section 120B of IPC. According to the defacto complainant he lodged a complaint on 14.7.2002 against 30 persons and the allegation is that the accused numbering to 30, on 13.7.2002 at about 9 o'clock attacked from Mankada Market and thereby the complainant had sustained fracture to the left leg and sustained other injuries also. But as indicated earlier, when the Police preferred the report the number of accused shown as only 11 and the Section of Offence 307 r/w 120B deleted. However on the basis of the above Police report C.P.No.39/2005 was instituted in the Judicial First Class Magistrate Court -I, Perinthalmanna. The learned Magistrate by his proceedings in C.P.No.39/2005 committed the case to the Sessions Court, ## **Crl.R.P.NO.4181 OF 2007 3** Manjeri wherein the case is numbered as SC No.380/2006. 4. Since the number of accused arrayed in the police report limited to only 11 and Section 307 r/w 120B deleted, the defacto complainant in SC.No.380/2006 preferred a private complaint against 23 persons alleging all the offences for which the crime was originally registered. The learned Magistrate, after complying with the requisite procedure formalities, committed that case also to the Sessions case as per the proceedings in C.P.No.34/2005 and the said case is numbered as SC 384/2006 in the Sessions Court. It is the above two sessions case are now ordered to be tried jointly as per the impugned order. 5. The learned counsel Sri.Babu. S. Nair appearing for the revision petitioners vehemently submitted that the above order of the learned Sessions Judge is not sustainable either on law or on the facts involved in the present case. According to the learned counsel if the above two cases are tried jointly the petitioners who are accused will be prejudiced which is impermissible in law and the irreparable injuries that may sustain by the accused cannot be compensated in any way. It is ## **Crl.R.P.NO.4181 OF 2007 4** also the submission of the learned counsel that before the present petition and the impugned order, the second respondent herein had preferred Crl.M.P.No.833/2007 with similar prayer for joint trial of the above two cases and the very same learned Sessions Judge by his order dated 10-08-2007 dismissed the said petition and thereby rejected the prayer. According to the learned counsel it is thereafter the Public Prosecutor preferred the present petition for the same relief which was allowed by the learned Sessions Judge inspite of the fact that the very same judge declined identical prayer in an earlier occasion. The learned counsel it is further submitted that in SC.No.380/2006 there are only 11 accused whereas in SC No.384/2006 altogether there are 21 accused at present, including the persons those were accused in SC No.380/2006 and if the trial is permitted to go on as ordered by the learned Sessions Judge, it will create great hardship and prejudice and inconvenient to the accused and they may not be able to shape their defence properly and effectively. According to the learned counsel for the petitioner the learned Sessions Judge ought to have ordered to try both the sessions case together instead of joint trial, in ## **Crl.R.P.NO.4181 OF 2007 5** the manner as prescribed by Section 210 of Cr.P.C. In support of the above contention the learned counsel has placed much reliance on the decision of the Hon'ble Apex Court in **Harjindar** ## **Singh v. State of Punjab and others (AIR 1985 SC 404).** 6. Mr. P.Vijayakumar, learned counsel appearing for the second respondent submitted that as evident from the impugned order itself, though the defacto complainant, the second respondent had attributed allegation against 23 persons and their names were given at the time of launching FI Statement in Crime No.556/2002 of Perinthalmanna police Station, the Police with oblique motive deleted the names of 12 persons from the array of accused and deleted the offence under Section 307 r/w Section 120B of IPC, when they filed the report. The learned counsel further submitted that it was under the above circumstances the second respondent constrained to file the private complaint upon which also the learned Magistrate took cognizance and committed the case to the Sessions Court. According to the learned counsel though there are variations in number of accused and Section of offences involved in the above two sessions case, in both the cases the incident is one and ## **Crl.R.P.NO.4181 OF 2007 6** same. Therefore, according to the learned counsel no prejudice will be caused to the revision petitioners and therefore, the order of the learned Sessions Judge free of any irregularities, improprieties and illegalities. 7. Mr.V.Tekchand, the learned public Prosecutor resisting the contention raised by the counsel for the revision petitioners and supporting the order impugned, submitted that as the above two sessions case are arising out of with respect to the same incident and the allegation against the accused revision petitioners are same, there is no material difference between the two cases and the evidence including oral as well as documentary to be adduced by the prosecution in both the sessions case are one and same and hence there is no legal bar in trying the above two cases jointly and no prejudice will be caused to the accused. The learned Public prosecutor also pointed out that the facts and circumstances involved in the decision reported in AIR 1985 SC 404 are entirely different from the facts involved in the present case and therefore, guideline laid down by the Apex Court in that decision is not applicable to the present case. By inviting my attention to Section 223(d) of ## **Crl.R.P.NO.4181 OF 2007 7** Cr.P.C. Learned Public Prosecutor has also submitted that there is no legal bar for a joint trial of the two sessions case. The learned public Prosecutor on the basis of the decision of the Apex Court in **Pal Alias Palla v State of Uttar Pradesh (2010) 10 SCC page 123** submitted that the present two sessions cases not in the nature of case and counter. Therefore, the order of the learned sessions judge is perfectly correct, proper and legal. 8. I have carefully considered the arguments advanced by the learned counsel for the petitioners and the respondent as well as the learned Public Prosecutor. I have also perused the order impugned. I have gone through the authorities cited by the parties. From the facts and circumstances involved in the case it can be seen that, it is beyond dispute that, the persons those who are figured as accused in SC No.384/2006 are also initially arrayed as accused in Crime No.556/2002 of Perinthalmanna Police Station. Otherwise the name all 12 persons omitted from the original FIR and not included in the police report find a place in SC No.384/2006. The allegations and the incident in both the sessions case is one and same, ## **Crl.R.P.NO.4181 OF 2007 8** though there is variations with respect to the number of persons shown as assailants and the section of offences. The allegation of the second respondent and the contention of the counsel for the 2[nd] respondent that the Police had deliberately reduced the number of assailants and Section of offence cannot be ignored as baseless and out of context in the light of the findings of the learned Sessions Judge that contained in paragraph 7 of the impugned order, in which it is observed that: “ on careful scrutiny, I found that while I was passing orders I found that the incident alleged in SC 384/2006 is happened on 9 o'clock in the night on 1607-2002. It is a mistake. This mistake was brought out by the counsel and, according to him, the mistake was occurred because of the fact that such a mistake was crept in final charge submitted by the Sub Inspector of Police, Perinthalmanna. Both sides conceded that as per the allegations, the case was happened on 13.07.2002. Since that is a mistake I feel that, that has to be corrected”. So the necessity in filing private complaint was justified, because of the above mistake that crept that in the Police report. It goes without saying that if the witnesses during their ## **Crl.R.P.NO.4181 OF 2007 9** examination if stated anything against what shown in the Police report or little improvement from the Police version the same would certainly go in favour of the accused by which the defacto complainant will be prejudiced. So by clubbing of two cases together no prejudice will be caused to the accused unless they have got a case that the incident in the above two cases taken place entirely different, on time, place and place of occurrence and the above two cases are contrary in nature. Regarding the incident which is the subject matter of two sessions case, there is no counter version or counter allegation regarding the same incident. Therefore, the question to be considered is whether the learned Sessions Judge is justified in his order clubbing SC No.384/2006 along with the SC No.380/2006 and for a joint trial. 9. As I indicated earlier, the learned counsel for the petitioners have no contention that there any material difference between the above two cases except with the number of persons involved as well as the section of offence namely Section 307 r/w Section 120B of IPC. In the above two Sessions Case regarding the incident there is no counter version or material difference. The evidence including oral as well as documentary are similar ## **Crl.R.P.NO.4181 OF 2007 10** and identical in nature. If that be so, the further question to be considered is whether the guideline laid down by the Hon'ble Apex Court in the decision reported in AIR 1985 SC 404 is attracted in the present case. As rightly pointed out by the learned Public Prosecutor, in paragraph 9 of the above decision the Apex court has observed that “the complainant present a different picture altogether. The prosecution case as set out in the complaint is at complete variance with that in the Police chellan. 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 chellan and the case on a complaint where the prosecution version in the Police chellan case and the complainant case are material different, controvert and mutually exclusive” ] (Emphasis supplied ). It is because of those factual peculiarity of those case, the Apex Court has laid down the guideline to be followed in trying those two cases in that decision, as evident from paragraph 8 of the said decision. In view of the facts and circumstances involved in the present case which I indicated earlier, which is far away from the facts and circumstances involved in the case considered by the Hon'ble ## **Crl.R.P.NO.4181 OF 2007 11** Apex Court, according to me, the guideline stressed upon by the learned counsel for the revision petitioners that contain in the above Supreme Court decision, is not applicable in the present case and because of the clubbing of the above two cases no prejudice will be caused to the accused in the light of the facts and circumstances involved in the case. In this juncture it is relevant to note that in the decision of the Apex Court in Pal Alias Palla's case (cited supra), clearly indicates on what ground cases cannot be clubbed or tried jointly. 10. The learned Public Prosecutor has also submitted on the basis of Section 223(d) of Cr.P.C, the order of the learned Sessions Judge is perfectly legal and valid. As per Section 223 (d) of Cr.P.C, it is crystal clear that the persons are accused of different offences committed in the course of the same transaction can be charged jointly. On a reading of the above Section it is crystal clear that if the persons are involved in the same transaction, though the offences are different those persons can be charged and tried together. Therefore, it cannot be said that the clubbing of the above two cases the accused are prejudice and the same is against Section 223 of Cr.P.C. In the ## **Crl.R.P.NO.4181 OF 2007 12** light of the above discussion and settled legal position, I am of the view that the order of the learned Sessions judge dated 1910-2007 in Crl.M.P.No.859/2007 in SC No.384/2006 is perfectly legal, regular and proper and no interference is warranted. Thus, I find no merit in the revision petition and accordingly, the same is dismissed. V.K.MOHANAN, JUDGE pm