Kadiresan vs Kasim and Others

This is a revision petition by a complainant against the order of acquittal. The respondents, who are the accused, are the inhabitants of the same

locality. On 11-12-1979, the complainant gave a first information report to the Iluppur police station that on that day at 6 p.m. in Iluppur village

when the complainant was the Headmaster of the Government High School, Iluppur, the accused persons became guilty of offences under Ss.

147, 341, and 355 and 323, IPC. Not satisfied with that step, the complainant went before the Chief Judicial Magistrate, Pudukottai, and filed a

complaint on 14-2-1980. After return a representation (sic), the sworn statement of the complainant was recorded and the case was taken to file

by the Chief Judicial Magistrate on 18-4-1980 for offences under Ss. 147, 332 and 355, IPC. The case was numbered as C.C. 113 of 1980 by

the Chief Judicial Magistrate, Pudukottai. The complainant in his complaint before the Chief Judicial Magistrate has mentioned about his first

information report before the police, but the Magistrate instead of following the procedure under S. 210, Cr.P.C. that is to say, to stay the

proceedings and call for a report from the concerned police station, rested content with sending an intimation to the Sub-Inspector of Police.

Iluppur, which intimation sent on 18-4-1980 is said to have been received by the Police Station on 21-4-1980.

The Sub-Inspector of Police, notwithstanding the information which he has received from the Chief Judicial Magistrate, Pudukottai, filed his final

report in the routine course before the Judicial II Class Magistrate, Keeranur, stating that offences under Ss. 147, 341 and 323, IPC appeared to

have been committed by the accused. Upon the receipt of that report, D/- 30-4-1980 and received by that Magistrate on 5-9-1980 the latter took

it on file on 15-5-1980 and that case was numbered as C.C. 124 of 1980. The complainant, learning about the first information report being filed

before the Judicial II Class Magistrate Keeranur, approached the Sessions Court, Pudukottai, for having the case C.C. 124 of 1980 transferred

from the file of the Judicial II Class Magistrate, Keeranur to the file of the Chief Judicial Magistrate. Pudukottai through Cr. M.P. 551 of 1980. An

order was passed by the the Sessions Court on 4-9-1980 transferring the above said case to the file of the Chief Judicial Magistrate, Pudukottai.

The latter received the papers in C.C. 124 of 1980 on 19-9-1980. That case was renumbered as C.C. 339 of 1980 on his file.

On 23-9-1980 the Magistrate passed an order clubbing the case pending already on his file upon the private complaint namely C.C. 113 of

1980 with C.C. 339 of 1980. He framed charges against the accused on 27-9-1980 for offences under Ss. 147, 332 and 335, I.P.C. During the

course of the trial, the complainant revision petitioner filed three petitions. The first one, Cr. M.P. 375 of 1981 dt/- 21-2-1981, was for the

purpose of examining the witnesses 3 and 9 cited in the complaint who were present on that day when the other witnesses were being examined.

The second petition Cr. M.P. 383 of 1981 dt/- 23-2-1981 was for the purpose of examining one witness Susai Rayar, whose name was quoted in

the complaint and to permit the counsel for the complainant to conduct the chief examination. The third petition Cr. M.P. 446 of 1980 dt/- 5-3-

1981 was to keep the identity of each case apart and to record evidence separately in each case. Though all these petitions were filed before the

prosecution closed its case, the trial court did not pass any orders then and there and passed orders only along with the judgment on 24-7-1981

rejecting all the petitions.

The Public Prosecutor has examined in his case 9 witnesses, marked 10 exhibits and produced 2 material objects. After perusing the entirety of

the evidence produced by the Public Prosecutor, after shutting the evidence proposed to be adduced by the complainant and after hearing the

Public Prosecutor and the defence counsel, the trial court namely, the Chief Judicial Magistrate, Pudukottai, by judgment dt/- 24-7-1981 acquitted

all the accused of all the charges framed against them. The State has not preferred any appeal against the judgment of the Magistrate. The

complainant has approached this court by way of revision petition.

In view of the embargo embodied in S. 401(3), Cr.P.C. this court cannot convert a finding of acquittal into one of conviction. What this court

can do in the circumstances of the case is to remit back the case to the trial Court. The Supreme Court had occasion to consider in depth the

jurisdiction of this Court while dealing with a revision petition against an order of acquittal. In those decisions reported in K. Chinnaswamy Reddy

Vs. State of Andhra Pradesh, , Mahendra Pratap Singh v. Sarju Singh, 1968 MLJ (Cri) 399 : 1968 Cri LJ 865 and Akalu Ahir and Others Vs.

Ramdeo Ram, , the Supreme Court has indicated that only in cases of gross miscarriage of justice, this Court would be justified in sending back the

matter to the trial Court.

The learned counsel for the revision petitioner would contend that in the present case, there has been a miscarriage of justice in as much as the

evidence he wanted to adduce in support of the private complaint filed by him was not accepted by the trial Court. He contended that when there

is a complaint case and police case in respect of the same offence, as per S. 210, Cr.P.C. though it is imperative. On the Magistrate to enquire into

or try together the complaint case and the case arising out of the police report and the procedure to be followed by him in the one prescribed for

the case instituted on police report, the two cases remain separate and the Magistrate cannot prevent the complainant from adducing his evidence

in respect of the complaint case. In support of his stand, he produced three judgments. The first judgment is by the High Court of Kerala in

Annamma v. Antony Chacko, 1976 MLJ (Cri) 529 where it was observed that assuming that S. 210, Cr.P.C. applies to the case, the refusal of

the Magistrate to examine the witnesses mentioned in the complaint is not justified.

The second one is by the same High Court in Mani v. Swainatha, 1985 MLJ (Cri) 596, where it was observed that the two cases under S. 210

P.C. should be tried together by the same Court, but not consolidated. In support of that decision the Kerala High Court placed reliance on the

decision of the Supreme Court in Harjinder Singh Vs. State of Punjab and Others, , which is the third decision cited by the learned counsel for the

revision petitioner. In that case, the Supreme Court has observed that in case of joint trial, the cases should not be consolidated and that the

evidence should be recorded separately in each case and after the other except to the extent that the witness for the prosecution who was common

to both the cases be examined in one case and his evidence be availed as evidence in the other. It is this ratio which has been applied by the

Kerala High Court in the decision second quoted, in instances contemplated in S. 210, Cr.P.C.

The learned counsel appearing for the accused-respondents contended that when the case was clubbed on 23-9-1980, the complainant did not

raise any objection. He further placed reliance on a decision of this Court in Chinnu Naicken Vs. Rangasami, , in which, according to him it would

have been held that in the circumstances contemplated under S. 210, Cr.P.C. the complainant has no right to examine any witness.

In the present case, the Magistrate did not act at the beginning strictly in accordance with S. 210, Cr.P.C. by way of staying the proceedings

and calling for a report. But after the case filed by the police has been transferred to his Court, the Magistrate has become aware that the cases

were covered by S. 210, Cr.P.C. and he purported to act under that section. As per that section, the merging of the cases is not contemplated.

What is contemplated is only that the cases be tried together. The clubbing of the cases was operated on 23-9-1980, the date on which the

complainant was absent and his absence was excused by the Court. The complaint has then filed before the end of the trial and before the

pronouncement of judgment on 5-3-1981, a petition, namely Cr. M.P. 446 of 1981, drawing the attention of the Magistrate about the necessity to

keep the identity of each case separately. Therefore, the fact that the Magistrate has recorded that C.C. 113 of 1980 is clubbed with C.C. 339 of

1980 does not amalgamate the cases and reduce them only to one case.

As per S. 210, Cr.P.C. the two cases continued to exist separately. But the cases should be tried as if both of then have been instituted on a

police report, from the time the Magistrate has taken cognisance of an offence under the police report. It is to be noted that this is contingency may

happen at any stage of the private complaint case because the Magistrate would have stayed that case only when it has been made to appear to

him that an investigation by the police is in progress in relation to the same subject matter.

The manner in which a complainant may appear before the court is not a matter which is governed by S. 210(2), Cr.P.C. If the Public

Prosecutor enters appearance, than the provisions of S. 301(2), Cr.P.C. would apply and the complainant can intervene only by way a instructing

his pleader and sub pleader would have to act under the directions of the Public Prosecutor in the conduct of the case. The complainant would not

have any right to produce his own evidence. Otherwise, under S. 302, Cr.P.C. any person conducting the prosecution would have the right to do

so personally or by a pleader and would have, once he has been permitted by the Magistrate, the possibility of adducing his own evidence. From

the reading of Ss. 301 and 302, Cr.P.C. it is clear that the prosecution is not done exclusively by the Public Prosecutor. ''Public Prosecutor'' as per

definition under S. 2(u), Cr. P.C. means any person appointed under S. 24, Cr.P.C. and includer any person acting under the directions of the

Public Prosecutor. S. 24, Cr.P.C. provides that the Government may appoint Public Prosecutors for conducting any prosecution, appeal or other

proceedings on behalf of the Government. In fact, there are certain Government agencies which file private complaints and which are represented

by the Special Public Prosecutors. In that way there may be Prosecutors or Assistant Public Prosecutors, for private complaint cases as well as for

cases on police report. Conversely, the prosecution may be conducted by persons other than Public Prosecutors in cases filed on police report as

well as in private complaint cases.

As pointed out the Magistrate had before him two cases, one way of private complaint and another by way of police report. Admittedly, the

Assistant Public Prosecutor entered appearance only in respect of the case taken on file on the police report. The complainant could not adduce

any evidence in respect of that case except under the directions of the Assistant Public Prosecutor as provided under S. 301, Cr.P.C. But as far as

the case filed by way of private complaint is concerned, it was not only the right but also the duty of the complainant to adduce his evidence and

the Magistrate was wrong in not accepting the evidence the complainant wanted to adduce. Further, in respect of the occurrence, two charge, out

of the three framed namely, those for offences under Ss. 332 and 355 arose from the private complaint and not out of police report. The error of

the Magistrate arose from, the fact that he made a confusion between joint trial and complete amalgamation of cases. As held by the Supreme

Court in the decision supra, there cannot be amalamation of cases when joint trial is permitted.

In rhw decision relied on by the learned counsel for the accuse-respondents, it was not held that in case of joint trial complainant would be

debarred from adducing his own evidence, the matter before Court at that time was whether there could be a joint trial or not. The Court

answered in the affirmative and said that since the foundation for the charge was one and the same and it was one just that there should be one and

the same and it was only just that there should be on trial and S. 210, Cr.P.C. is a procedure beneficial to the accused and that there need not be

two separate trials of the same offence, therefore, those observations of this Court in Chinnu Naicken Vs. Rangasami, is no manner contrary to the

views taken by the Kerala High Court. At any rate, now that the decision of the Supreme Court is available on that point, there may be any

controversy whatsoever. When using a loses language, two cases are said to be clubbed, that means that they are being tried together but that

cannot make any one of those cases to lose its identity. Once in a matter summons has been issued by the Magistrate, unless the accused is

discharged, the case continues to exist, and, therefore, judgment should indicate what is the fate of the accused in each case.

The Court, while ordering that both the cases would be clubbed in respect of this that occurrence has practically merged them which it had no

jurisdiction to do. Since it is clear from the language of S. 21, Cr.P.C. that both the cases exist side by side and continue to have their specific

identities and the Court has no jurisdiction to merge them it is always better to avoid terms like ''clubbing'' and to use the language of the Code

itself, that is to say ''trying together''. Since the court below has committed a gross error which has affected the interest of justice in both the cases,

the revision petition has to be allowed and the trial court while dealing with the matter should follow the guidelines indicated by the Supreme Court

in Harjinder Singh Vs. State of Punjab and Others, already quoted.

In the result, the revision petition is allowed, the judgment of the trial court is set aside and both the cases are remitted back to the trial court

for completing the trial expeditiously in accordance with law.

Petition allowed.