Chinnadurai vs State and Pandia Nadar alias Ramasamy Nadar

Bhaskaran, J.—Crl.M.P No 8907 of 1988 has been filed by the complainant to direct the First Additional Sessions Judge, Tirunelveli to try

Sessions Case No. 9 of 1988 along with the private complaint filed by the Petitioner in P.R.C. No. 27 of 1988 on the file of the Judicial Second

Class Magistrate, Srivaikuntam, after the same is committed to Sessions. Crl.M.P. No. 9568 of 1988 has been filed by the 5th accused in

Sessions Case No. 9 of 1988 to implead him as 2nd Respondent in Crl.M.P. No. 8907 of 1988.

According to the Petitioner in Crl.M.P. No. 8907 of 1988, his brother R.S. Pandian was murdered on 19-5-1987 at 10:30 P.M. while he was

returning from Eral to his house. With respect to that incident, the Petitioner has lodged a complaint to the Head Constable, Eral Police Station but

the latter did not record the complaint properly and did not include all the accused named by the Petitioner in the complaint. Though the Petitioner

had made allegations against 18 persons, the Respondent/Inspector of Police, Srivaikuntam did not investigate properly and filed the charge-sheet

only against seven persons viz., accused 1 to 7 in P.R.C. No. 25 of 1987 on the file of the Judicial Second Class Magistrate, Srivaikuntam. The

case has been committed to the Court of Sessions, Tirunelveli Division and posted for trial before the first Additional Sessions Judge, Tirunelveli in

Sessions Case No. 9 of 1988.

The case of the Petitioner is that there is a conspiracy on 12-5-1987 and 13-5-1987 to murder his brother R.S. Pandian and pursuant to that,

some of the accused murdered his brother. The police, without properly investigating the matter filed the charge-sheet only against accused 1 to 7.

Thereafter, the Petitioner preferred a private complaint against 18 persons for offences under Ss. 147 , 148 and 302 read with 120-B of the Indian

Penal Code before the Judicial Second Class Magistrate, Srivaikundam and the same will be committed to the Court of Sessions, Tirunelveli

Division. Thus, there are two complaints in respect of the same occurrence viz., murder of R.S. Pandian, one on police case in Sessions case No.

9 of 1988 and another on a private complaint which is pending as P.R.C. No. 27 of 1988. The Petitioner seeks that both cases should be tried by

one and the same Judge or they should be clubbed together and tried as one case. For that purpose, the Petitioner has filed Crl.M.P. No. 8907 of

1988.

The 5th accused in Sessions Case No. 9 of 1988 has filed Crl.M.P. No. 9568 of 1988 seeking to implead himself as 2nd Respondent in

Crl.M.P. No. 8907 of 1988 and also to vacate the interim stay granted in Crl.M.P. No. 8908 of 1988 stating that he has been impleaded as an

accused in the case at the instigation of the complainant that the private complaint is a vexatious one and that if the trial of Sessions Case No. 9 of

1988 is stayed pending the committal of the private complaint filed by the complainant, he will be put to indefinite annoyance and hardship facing

trial in a false case.

It is seen that the police case and the private complaint arise out of the same occurrence viz., murder of one R.S. Pandian. The only objection

raised by the 5th accused, who filed Crl.M.P. No. 9568 of 1988 to implead himself as 2nd Respondent in the other petition and also to vacate the

interim stay is, that keeping the Sessions Case pending till the committal of the private complaint will keep the proceedings pending indefinitely and

that he has to unnecessarily face trial in the Criminal Court. In this case, it is seen, with reference to the same occurrence, in the police case seven

persons are facing trial and in the private complaint 18 persons are facing trial. It is well settled that no per son should be prosecuted or punished

more than once for the same offence. Therefore if the Sessions Case is allowed to go on first on the Police complaint, the accused who are

convicted or acquitted for such offence and such conviction or acquittal remaining in force, cannot be tried again for the same offence nor of the

same set of facts for any other offence for which a different charge is made from the one made in the earlier case. After the disposal of the Sessions

Case, the private complaint cannot be proceeded with. Therefore, as held in the decision reported in Kewal Krishan Vs. Suraj Bhan and Another,

if the private complaint is committed to some other Sessions Court, there is the risk of two Courts coming to conflict in findings. It is, therefore,

desirable that the same Court should try both the cases viz., case on police report and the case on private complaint. Learned Counsel for the 5th

accused has no objection if the committal proceedings in P.R.C. No. 27 of 1988 are expedited and both the cases are tried together.

In the circumstances, I direct the Judicial Second Class Magistrate, Srivaikuntam to expedite the committal proceedings in P.R.C. No. 27 of

1938 and commit the case to the Court of Session, Tirunelveli Division, to be made over to the First Additional Sessions Judge, Tirunelveli. Till the

committal of the private complaint, the trial of, Sessions case No. 9 of 1988 is stayed. After the committal, the Learned First Additional Sessions

Judge, Tirunelveli is directed to try both the cases together expeditiously after taking evidence in both the cases and deliver judgment in both the

cases on the same day. Both the petitions ordered accordingly.