High Court of KeralaSingle Judge2023-05-22Writ petition allowed to the extent stated: Ext...

T.A. Joseph v. State of Kerala and Others

Case / Petition Number:WP(Crl.) No.1194 of 2022

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Bechu Kurian Thomas
Judgment Date: 2023-05-22
Court Decision / Holding: Ext.P11 is set aside; the Judicial First Class Magistrate Court-I, Aluva, is directed to try C.C.No.973/2011 and C.C.No.1116/2018 separately and to take evidence separately but by the same presiding officer; the challenge to Exts. P2 and P10 is declined; the writ petition is allowed to that extent.
Final Disposition: Writ petition allowed to the extent stated: Ext.P11 quashed; CC Nos. 973/2011 and 1116/2018 to be tried separately with evidence taken separately but by the same presiding officer; challenge to Exts. P2 and P10 declined.

Parties to the Case

Appellants / Petitioners

T.A. Joseph, aged 59 years, S/O Late T.J. Alexander, Managing Director, M/S Confident Projects India Limited

Respondents

State of Kerala represented by Public Prosecutor, High Court of Kerala, Ernakulam
Deputy Superintendent of Police, District Crime Branch, Ernakulam Rural, Aluva Police Station
E. Subair, S/O Ibrahim, Korangattupparambu, Malaiakkapady, Edathala, Aluva East Village, Aluva

Legal Representation & Advocates

Counsels for Petitioners

• Abraham Mathew (Vettoor)
• Anil Abey Jose

Counsels for Respondents

• Sri. C.N. Prabhakaran, Public Prosecutor
• E. Subair (Party-In-Person)

Case Synopsis & Summary

This is a Kerala High Court writ petition (Criminal) filed by T.A. Joseph, an accused in two cases pending before the Judicial First Class Magistrate, Aluva (C.C. Nos. 973/2011 and 1116/2018). The petitioner sought to quash Exts. P2 (protest complaint) and P10 (final report) and to stay further proceedings in the two cases. The core issue was whether the trial of the two separate proceedings, one arising from a protest complaint (offences including 147, 148, 149, 427, 447, 450, 452 and 395 r/w 34 IPC) and the other from a police report (offences 447 and 427 r/w 34 IPC), could be consolidated under Section 210 Cr.P.C. Ext.P11 directed that both cases be tried together, “along with” merging evidence under a single trial before the same Judicial First Class Magistrate. The court examined precedents (Gireesh v. Rahim; Samuel Mathai v. State of Kerala) and Pal @ Palla v. State of Uttar Pradesh, concluding that consolidation is improper where the two proceedings contain additional or distinct offences. It held that, to avoid conflicting decisions, separate trials must be conducted, with evidence taken separately but by the same presiding officer. Accordingly, Ext.P11 was set aside, and the two cases were to be tried separately, while the challenge to Exts. P2 and P10 was declined. The petition was allowed to that limited extent.

Provisions of Law Cited

Section 210 Cr.P.C. (Code of Criminal Procedure, 1973)Section 147 IPCSection 148 IPCSection 149 IPCSection 427 IPCSection 447 IPCSection 450 IPCSection 452 IPCSection 395 r/w Section 34 IPCSection 34 IPCSection 91 Cr.P.C.

Legal Doctrines & Maxims

Two trials should be held separately and evidence taken separately but by the same Presiding Officer to avoid conflicting decisions (Pal @ Palla v. State of Uttar Pradesh, 2010 (10) SCC 123)
Clubbing/consolidation of two cases arising from the same incident is not permissible if one contains additional allegations (as discussed in Gireesh v. Rahim; Samuel Mathai v. State of Kerala)

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner’s counsel argued that Ext. P11, directing consolidation of CC No. 973/2011 (private complaint with multiple offences) and CC No. 1116/2018 (police report with distinct offences) for a joint trial under Sec. 210 Cr.P.C., is procedurally improper. Since the offences and accused differ between the two proceedings, clubbing would produce conflicting decisions and prejudice the defence. Citing Gireesh v. Rahim, Samuel Mathai v. State of Kerala, and Pal @ Palla v. State of Uttar Pradesh, the counsel urged that separate trials should be held for the two proceedings, with evidence taken separately but by the same presiding officer to avoid inconsistent outcomes. Ext. P11’s approach, he argued, undermines the distinct factual matrices of the complaint and police report and contravenes the principles laid down in the cited authorities. The petitioner requests quashing of Exts. P2 and P10 and a stay of proceedings until disposal of the writ petition, and in substance seeks to uphold the independence of each case’s record and evidentiary process.

Contentions of Respondents

The respondents contended that the two proceedings, though arising from the same incident, could be consolidated under Sec. 210 Cr.P.C. to avoid duplicate evidence and litigation inefficiency. They relied on the procedural framework of Sec. 210 and the factual overlap between the cases to argue that a joint trial with shared presiding over evidence is permissible. The 3rd respondent’s counsel indicated no objection to the Court examining Ext. P11’s validity. However, the Court ultimately found consolidation improper because one case had additional allegations beyond those in the other, and the two offences differed in scope, mandating separate trials (though before the same judge) to prevent conflicting findings. The respondents thereby faced a limited scope of relief, with Exts. P2 and P10 not being set aside, while Ext. P11 was invalidated to ensure separate trials.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Gireesh and Others v. Rahim and Another	2020 (4) KLT 77	Positive	Court relied on this decision to hold that clubbing of two cases arising from the same incident is improper when one contains additional allegations.
Samuel Mathai and Others v. State of Kerala and Another	2007 3 KHC 682	Positive	Cited to support the proposition that separate trials are required where there are multiple proceedings arising from the same incident.
Pal @ Palla v. State of Uttar Pradesh	[(2010) 10 SCC 123]	Positive	SC observed that when there is a complaint and police investigation arising from the same incident, two trials should be held separately and evidence taken separately by the same presiding officer to avoid conflicting decisions.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS MONDAY, THE 22[ND] DAY OF MAY 2023 / 1ST JYAISHTA, 1945** **WP(CRL.) NO. 1194 OF 2022** ## **PETITIONER :** **T.A.JOSEPH, AGED 59 YEARS, S/O LATE T.J. ALEXANDER, MANAGING DIRECTOR, M/S CONFIDENT PROJECTS INDIA LIMITED, 308/2, S.A.ROAD, VYTTILA, KOCHI-682 019.** **BY ADVS. ABRAHAM MATHEW (VETTOOR) ANIL ABEY JOSE** ## **RESPONDENTS :** |**1**|**STATE OF KERALA,**| |---|---| ||**REPRESENTED BY THE PUBLIC PROSECUTOR,**| ||**HIGH COURT OF KERALA, ERNAKULAM,**| ||**PIN - 682 031**| |**2**|**DEPUTY SUPERINTEND OF POLICE,**| ||**DISTRICT CRIME BRANCH, ERNAKULAM RURAL,**| ||**ALUVA POLICE STATION, PIN - 683 101.**| |**3**|**E.SUBAIR,**| ||**S/O IBRAHIM, KORANGATTUPARAMBU,**| ||**MALIAKKAPADY, EDATHALA, ALUVA EAST VILLAGE,**| ||**ALUVA, PIN – 683 101.**| ||**BY ADV E. SUBAIR, (Party-In-Person)**| **BY SRI.C.N.PRABHAKARAN, PUBLIC PROSECUTOR** **THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON 22.05.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(Crl.) No.1194 of 2022 2 ## **BECHU KURIAN THOMAS, J. -------------------------------W.P.(Crl.) No.1194 of 2023** ## **---------------------------------** Dated this the 22[nd] day of May, 2023 ## **JUDGMENT** Petitioner is one of the accused in C.C.No.973/2011 on the files of the Judicial First Class Magistrate's Court-I, Aluva. He is also an accused in C.C.No.1116/2018 before the same court. Both the above cases are initiated at the behest of the 3[rd] respondent. 2. The reliefs sought for in this writ petition are as follows :- (i) Issue a writ of certiorari or other appropriate writ or direction quashing Exhibits P2 and P10 further directing the Judicial First Class Magistrate Court-I, Aluva to drop the entire proceedings in C.C.No.973 of 2011 and C.C.No.1116 of 2018. (ii) To pass an order of stay with respect to all further proceedings in C.C.No.973 of 2011 and C.C.No.1116 of 2018 on the files of the Judicial First Class Magistrate Court-I, Aluva pending disposal of this writ petition. (iii) Pass such other orders which the petitioner may seek and this Hon'ble Court may deem fit to be granted in the interest of justice. 3. Ext.P2 is a protest complaint filed by the 3[rd] respondent which is W.P.(Crl.) No.1194 of 2022 3 now pending as C.C.No.973 of 2011 before the earlier mentioned court while Ext.P10 is the final report filed in C.C.No.1116/2018 again before the court mentioned earlier. 4. Though the reliefs sought for in the writ petition are as noted earlier, during the course of hearing, the learned counsel for the petitioner confined his submissions against the procedural violation in Ext.P11 proceeding of the learned Magistrate. As per Ext.P11, the learned Magistrate had directed the trial in C.C.No.973/2011 to be conducted along with C.C.No.1116/2018 as per the provisions of Section 210 of the Code of Criminal Procedure, 1973. 5. According to Sri.Abraham Mathew Vettoor, the procedure contemplated under Section 210 of the Cr.P.C. cannot be adopted when the offences alleged in both cases are different and also the accused arrayed in both the cases are different. He fairly referred to the decisions of this Court in **Gireesh and Others v. Rahim and Another [2020 (4) KLT 77]** as well as **Samuel Mathai and Others v. State of Kerala and Another [2007 3 KHC 682]** . The learned counsel also relied upon the decision in **Pal @ Palla v. State of Utter Pradesh [(2010) 10 SCC 123]** and contended that when the versions in the complaint case and the police report are totally different, the trial should be held separately and the evidence ought to be taken separately but by the same presiding officer to avoid conflicting decisions. 6. Though the reliefs sought for in the writ petition do not include a W.P.(Crl.) No.1194 of 2022 4 challenge against Ext.P11, since the learned counsel for the petitioner confined his submissions to the procedural impropriety of clubbing C.C.No.973/2011 and C.C.No.1116/2018 both pending before the Judicial First Class Magistrate Court-I, Aluva, I deem it appropriate to consider the validity of the procedure directed to be adopted in Ext.P11 proceedings dated 20.06.2022. The learned counsel for the 3[rd] respondent also submitted that he has no objection in the challenge against Ext.P11 being considered by this Court despite the absence of such a challenge in the writ petition. 7. The complaint filed by the petitioner as M.P.No.3545/2008 was referred for investigation to the Aluva Police Station. Thereafter, a crime was registered as FIR No.2697/2008 before the Aluva Police Station. However, after investigation, a report was filed referring the case. Based upon a protest complaint filed by the 3[rd] respondent, the learned Magistrate took cognizance of the protest complaint as C.C.No.973/2011 for the offences under Sections 147, 148, 149, 427, 447, 450, 452 and 395 r/w Section 34 of the Indian Penal Code, 1860 against the petitioner and five others. 8. In the meantime, the 3[rd] respondent had approached various other authorities pointing out the failure of the police to investigate into his complaint. Based upon the repeated representations of the petitioner, a final report was filed arraying the petitioner and three other persons as accused alleging offences punishable under Sections 447 and 427 r/w W.P.(Crl.) No.1194 of 2022 5 Section 34 IPC. The said final report was taken cognizance as C.C.No.1116/2018 on the files of the Judicial First Class Magistrate Court-I, Aluva. 9. It is evident that C.C.No.973/2011 is a proceeding initiated under various Sections against six accused while C.C.No.1116/2018 is a proceeding initiated for offences under Sections 447 and 427 r/w Section 34 of the IPC as against four accused. As held by this Court in **Girish** 's case (supra) and in **Samuel Mathai** 's case (supra) 'even if a private complaint and a police charge arises out of the same occurrence clubbing or consolidation of the two cases is not permissible if one contains additional allegations'. By Ext.P11 order of the learned Magistrate dated 20.06.2022, it has been directed that the trial in C.C.No.973/2011 has to be conducted along with C.C.No.1116 of 2018 under Section 210 of the Cr.P.C. and both cases arise out of the same incident and one is initiated on a protest complaint while the other on a police report. Apparently, the conclusion of the learned Magistrate regarding clubbing of the two cases is without bearing in mind the legal aspects mentioned above. Though the alleged crimes arise out of the same incident, additional allegations are levelled in C.C.No.973/2011 and also contain several offences apart from Sections 447 and 427. Thus, clubbing and consolidation of the two cases is legally improper. 10. In the decision in **Pal @ Palla v. State of Utter Pradesh [(2010) 10 SCC 123]** , the Supreme Court had observed that the W.P.(Crl.) No.1194 of 2022 6 procedure to be followed when there is a complaint case and police investigation in respect of the same incident, two trials should be held separately and evidence must be taken separately but by the same Presiding Officer to avoid conflicting decisions. Since the factual aspect of the two cases falls squarely within the legal proposition noted above, I am of the view that C.C.No.973/2011 and C.C.No.1116 must be tried separately after adducing evidence separately. However, to avoid conflicting decisions, the same Presiding Officer must take the evidence in both the cases. In the result, Ext.P11 is set aside and the learned Judicial First Class Magistrate Court-I is directed to try C.C.No.973/2011 and C.C.No. 1116/2018 separately and the evidence also be taken separately but by the same presiding officer. It is clarified that the challenge against Ext.P2 and Ext.P10 is declined. The writ petition is allowed to the above extent. Sd/- **BECHU KURIAN THOMAS, JUDGE** RKM W.P.(Crl.) No.1194 of 2022 7 ## **APPENDIX OF WP(CRL.) NO.1194/2022** ## **PETITIONER'S EXHIBITS :** **Exhibit P1** **A TRUE COPY OF AGREEMENT EXECUTED BETWEEN THE GENERAL MANAGER OF M/S CONFIDENT PROJECTS INDIA LTD AND THE 3RD RESPONDENT DATED 28-11-2007.** **Exhibit P2 A TRUE COPY OF THE PROTEST COMPLAINT REGISTERED AS CC NO. 973/2011 BEFORE J.F.M.C. ALUVA DATED 23-04-2010.** **Exhibit P3 A TRUE OF THE JUDGMENT IN WPC NO. 15787/2010 DATED 15-06-2010.** **Exhibit P4 A TRUE COPY OF THE LETTER ISSUED BY THE PRINCIPAL SECRETARY TO GOVERNMENT TO THE HEAD OF STATE POLICE DATED 04-08-2012.** - **Exhibit P5 A TRUE COPY OF THE LETTER ISSUED BY THE DIRECTOR (CS-I), MHA DATED 18-01-2013.** - **Exhibit P6 A TRUE COPY OF THE AGREEMENT BETWEEN THE 3RD RESPONDENT AND THE REPRESENTATIVE OF THE PETITIONERS COMPANY DATED 13-08-2015.** - **Exhibit P7 A TRUE COPY OF NOTICE U/S. 91 CR.P.C. ISSUED BY THE 2ND RESPONDENT DATED 07-10-2015.** - **Exhibit P8 A TRUE COPY OF THE RESOLUTION NO.2 OF THE EDATHALA GRAMA PANCHAYATH DATED 06-03-2009.** **Exhibit P9 A TRUE COPY OF THE JUDGMENT IN WPC NO. 30936 OF 2015 BEFORE THIS HON'BLE COURT DATED 23-06-2016.** **Exhibit P10 A TRUE COPY OF A FINAL REPORT IN CRIME NO. 2697 OF 2008 DATED 17-05-2018.** **Exhibit P11 A TRUE COPY OF THE CASE STATUS TO THE JFCM COURT -1, ALUVA DATED 20-06-2022.** W.P.(Crl.) No.1194 of 2022 8 ## **RESPONDENT'S EXHIBITS :** **EXHIBIT R-3(A)** **TRUE COPY OF THE INTREM ORDER IN I.A NO 1231 OF 2014 IN RSA NO 490 OF 2014 DATED 26-05-2014** **EXHIBIT R-3(B) TRUE COPY OF THE DEPOSITION GIVEN BY THE GRAMA PANCHAYATH SECRETARY ON 05-05-2018 TO THE DEPUTY SUPT . OF POLICE** **EXHIBIT R-3(C)** **TRUE COPY OF THE REPORT ISSUED FROM THE DISTRICT POLICE OFFICE, CRIME DETACHMENT ALUVA**