IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE [ENTITY] FRIDAY, THE 11TH DAY OF AUGUST 2017/20TH SRAVANA, 1939 [CASE NUMBER] () AGAINST THE ORDER/JUDGMENT IN [CASE NUMBER] of JUDICIAL MAJISTRATE OF FIRST CLASS-II,THRISSUR. PETITIONER(S)/ACCUSED : [ENTITY] 38 YEARS, S/O. [ENTITY], '[ENTITY]', PUTHOORKKARA, AYYANTHOLE, THRISSUR. BY ADVS.SRI.P.VIJAYA BHANU (SR.). [ENTITY]. [ENTITY]. RESPONDENT(S)/COMPLAINANT & STATE: 1. [ENTITY] 44 YEARS, S/O. FRANCIS, THATTIL CHEENIKKAL HOUSE, NEDUPUZHA PO., KANIMANGALAM, THRISUSR- 680 027. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SRI. [ENTITY]. R2 BY [ENTITY] (PUBLIC PROSECUTOR). THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 11-08-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: DXY [CASE NUMBER] () APPENDIX PETITIONER(S)' EXHIBITS ANNEXURE A : TRUE COPY OF THE PRIVATE COMPLAINT PREFERRED BY THE 1ST RESPONDENT BEFORE THE COURT BELOW AGAINST THE ACCUSED/PETITIONER DATED 20.02.2013. ANNEXURE B : TRUE COPY OF THE AGREEMENT OF CONSENSUS ENTERED BETWEEN [ENTITY] AND HIS MOTHER ON ONE SIDE AND THE PETITIONER ON THE OTHER. ANNEXURE C : COPY OF THE AFFIDAVIT SUBMITTED BY THE 1ST RESPONDENT ALONG WITH HIS NOMINATION AS CANDIDATE FOR THE LAST PARLIAMENT RELECTIONS. ANNEXURE D : TRUE COPY OF THE [ACT] PERTAINING TO THE PROPERTY OF THE 1ST RESPONDENT ANNEUXRE E : TRUE COPY OF THE PRIVATE COMPLAINT PREFERRED BY THE PETITIONER BEFORE THE COURT OF THE [ACT] AGAINST THE 1ST RESPONDENT HEREIN AND ANOTHER DATED 02.08.2014. ANNEXURE F : TRUE COPY OF THE [ACT] REGISTERED BY THRISSUR TOWN WEST POLICE STATION, THRISSUR DISTRICT. ANNEXURE G : TRUE COPY OF THE REPORT SUBMITTED BY THE ASSISTANT DIRECTOR (DOCUMENTS), REGIONAL FORENSIC LABORATORY, THRISSUR DATED 04.10.2016 IN [CASE NUMBER] OF THRISSUR TOWN WEST POLICE STATION BEFORE THE COURT OF THE [ACT]. ANNEXURE H : TRUE COPY OF THE ORDER DATED 24.11.2015 IN [CASE NUMBER] PASSED BY THIS HONOURABLE COURT. RESPONDENT(S)' EXHIBITS TRUE COPY PA TO JUDGE DXY [ENTITY], J [CASE NUMBER] Dated this the 11th day of August, 2017 O R D E R
The petitioner stands indicted for offence punishable under [SECTION] of the [ACT] in [CASE NUMBER] on the file on the Judicial First Class Magistrate Court, No.II, Thrissur, instituted on the basis of the complaint filed by the first respondent herein. Anx.A is the copy of the impugned complaint, which has led to the institution of [CASE NUMBER] on the file of the abovesaid Trial Court. The alleged dishonored cheque dated 24/12/2012 is for Rs. 26 lakhs. It is stated that as per Anx. A complaint, the allegation is that a huge sum of Rs.26 Lakhs was borrowed by [CASE NUMBER].
the petitioner from the first respondent herein for his personal purposes. The specific plea taken up by the petitioner herein is that he had business transactions with one Sri. [ENTITY], and when the relationship between the petitioner and the said person had run into troubled waters, the instant prosecution has been launched by the first respondent herein, as a namelender of the said Sri. [ENTITY] by misusing the blank signed cheque leaf of the petitioner. It is a case of the petitioner that the petitioner and Sri.[ENTITY] were doing some business together and that he had access to the petitioner's cheque book and stealthily removed the said cheques of the petitioner without his knowledge as he was then abroad. That the petitioner was then in a Gulf Country and the petitioner came to know about the loss of the cheque only when the instant complaint was launched. Thereupon, the petitioner is said to have immediately preferred Anx.E complaint dated 02/08/2014 before the Chief Judicial Magistrate Court, Thrissur, against the first respondent herein and the abovesaid Sri. [ENTITY], stating that they had committed forgery and cheating, etc. in [CASE NUMBER].
relation with the above said cheque. Anx.F FIR dated 19/08/2014 in [CASE NUMBER] of Thrissur West Police Station was registered, whereby, offenses punishable under [SECTION], [SECTION], [SECTION], [SECTION], [SECTION] with [SECTION] of the [ACT] were registered against the first respondent herein and Sri.[ENTITY] as accused persons therein. After completion of the due process of the investigation the police had filed final report/charge sheet in [CASE NUMBER] indicting the first respondent herein and said Sri. [ENTITY] for the above said offenses and the learned Chief Judicial Magistrate, Thrissur has taken cognizance of the offenses therein, which has led to the institution of [CASE NUMBER] on the file of the Chief Judicial Magistrate Court, Thrissur, in respect of Anx.F crime. It is further stated that in the course of the investigation of Anx. F crime, the cheque in question involved in that crime (which is the same as the one involved in the present Anx.A complaint for [SECTION] offense), was sent for the expert opinion of handwriting analysis of the Forensic Science laboratory concerned and that Anx.G is the report submitted by the [CASE NUMBER].
Assistant Director (Documents), Regional Forensic Science Laboratory, Thrissur dated 04/10/2016 in [CASE NUMBER], of Thrissur Town West Police Station, wherein it has been stated that the sample handwritings of the petitioner along with the questioned document (Cheque in question), was sent for handwriting analysis and it is stated in Anx.G report of the Forensic Science laboratory, Thrissur as follows (see pages 38 and 39 of the present paper book).
The questioned signature in this case was carefully and thoroughly examined and compared with standard signature in all aspects of handwriting identification and detection of forgery with scientific aids in the Regional Forensic Science laboratory at Thrissur.
The result of examination is the following.
2. The person who wrote the blue enclosed standard signatures stamped and marked A1 and S1 to S30 did not write the red enclosed questioned signature similarly stamped and marked Q1.
The questioned document in this case was carefully and thoroughly examined and compared with standard documents in all aspects of handwriting identification and detection of forgery with scientific aids such as Han Magnifiers, Zoom Stereo Microscope, Video Spectral Comparator (VSC 5000) in the Regional Forensic Science laboratory at Thrissur.
The red enclosed questioned item marked Q1 consist of signature in a cheque bearing number '674970' dated 24/12/2012 pf Corporation Bank, branch Round North, Thrissur. This questioned signature is some what slowly written. The standard item supplied for comparison and stated to be written [CASE NUMBER].
by Sri. [ENTITY] consist of specimen signature in three sheets of paper obtained on 15/09/2014 marked SI to S30 and signatures written in the normal course in a cheque dated 14/07/2012, marked A1. These standard signature are freely written with natural variation and are found to be consistent among themselves.
On comparison, the questioned signature shows signs of forgery such as hesitating movement of strokes, pen halt and pen lifts at unnatural places, imitated letter formations, wrongful formation of characters etc. The questioned signature also shows, significant differences in writing characteristics from the standards. Some of the individual writing characteristics in which they differ are the following.
1. The nature of commencement of the initial character and the manner of its combination with the subsequent character.
2. The nature of execution of the second character.
3. The nature of execution of the intermediate character appears like 'h'.
4. Nature and extent of under scoring.
In addition, the questioned signature also differ from the standards in general writing characteristics such as skill, movement, speed, slant etc. The differences found between the questioned and the standards are significant. They are beyond the range of natural variation and are not due to intended disguise. A collective consideration of the above mentioned differences coupled with signs of forgery led to the conclusion that the writer of the standard signatures marked A1 and S1 to S30 did not write of the questioned signature similarly stamped and marked Q1.
2. On the basis of the expert report of the Forensic Science laboratory, as disclosed in Anx. G, it is strongly contended by the petitioner that the petitioner could establish in clear and categorical terms that the signature in the [CASE NUMBER].
dishonoured cheque in question is not that of the petitioner and that thus indisputably, the cheque is a forged one and that compelling the petitioner to further undergo the precess of trial in respect of Anx. A complaint, would be nothing but great abuse of the process of the court, which results in miscarriage of justice, etc. It is pointed out that the petitioner who is made accused in Anx. A complaint, is the defacto complainant in the final report arising out of Anx.F crime, which has resulted in [CASE NUMBER] of the file of the Chief Judicial Magistrate, Thrissur, in which the first respondent herein is one of the accused and the petitioner is the defecto complainant in that Police charged sheeted case, etc.
3. Though notice has been duly served on R-1 (complainant), there is no appearance for that party.
4. Heard Sri. [ENTITY], learned Senior Counsel instructed by Smt. [ENTITY] learned counsel appear for the petitioner and Sri. [ENTITY], learned Prosecutor appearing R-2 State.
5. The main contention urged by the learned counsel appearing for the petitioner is that Anx. G report of the [CASE NUMBER].
Forensic Science laboratory, is a material of sterling and impeccable quality and therefore this Court can certainly hold on the basis of Anx. G report that the cheque in question is a forged one and that the signature in the said cheque is not that of the petitioner and that on this short ground alone, Anx. A complaint could be quashed, as otherwise it would amount to perpetration of grave abuse of the process of the court.
6. The petitioner would place reliance on the judgments of the Apex Court as in [PRECEDENT], State of Haryana and others v.
Bhajanlal and others reported in 1992 suppl. 1-SCC 335, [PRECEDENT], paras 36 and 37, [PRECEDENT], paras 25,26, [ENTITY] and others v. Madanlal Kapoor, reported (2013), 3 SCC 330, paras 25-30 etc. to contend that this court in appropriate cases can certainly look into materials of unimpeachable and sterling quality to examine [CASE NUMBER].
whether the initiation and continuation of the impugned criminal proceedings would amount to grave abuse of the process of court and that on the basis of such additional materials, High Courts have the jurisdiction under [SECTION] of [ACT] to issue necessary orders for quashment of the impugned criminal proceedings in such cases where the convincing materials would clearly show that the further continuation of the criminal proceedings would amount to abuse of the process of the Court etc. It will be profitable to refer para 28 to 30 of the decision of the Apex Court in [ENTITY] and others v. Madanlal Kapoor reported in (2013) 3 SCC 330, which reads as follows.
"28. The High Court, in exercise of its jurisdiction under [SECTION] [ACT], must make a just and rightful choice. This is not a stage of evaluating the truthfulness or otherwise of the allegations levelled by the prosecution/complainant against the accused. Likewise, it is not a stage for determining how weighty the defences raised on behalf of the accused are. Even if the accused is successful in showing some suspicion or doubt, in the allegations levelled by the prosecution/complainant, it would be impermissible to discharge the accused before trial. This is so because it would result in giving finality to the accusations levelled by the prosecution/complainant, without allowing the prosecution or the complainant to adduce evidence to substantiate the same. The converse is, however, not true, because even if trial is proceeded with, the accused is not subjected to any irreparable [CASE NUMBER].
consequences. The accused would still be in a position to succeed by establishing his defences by producing evidence in accordance with law. There is an endless list of judgments rendered by this Court declaring the legal position that in a case where the prosecution/complainant has levelled allegations bringing out all ingredients of the charge(s) levelled, and have placed material before the Court, prima facie evidencing the truthfulness of the allegations levelled, trial must be held.
29. The issue being examined in the instant case is the jurisdiction of the High Court under [SECTION] [ACT], if it chooses to quash the initiation of the prosecution against an accused at the stage of issuing process, or at the stage of committal, or even at the stage of framing of charges. These are all stages before the commencement of the actual trial. The same parameters would naturally be available for later stages as well. The power vested in the High Court under [SECTION] [ACT], at the stages referred to hereinabove, would have far-reaching consequences inasmuch as it would negate the prosecution's/complainant's case without allowing the prosecution/complainant to lead evidence. Such a determination must always be rendered with caution, care and circumspection. To invoke its inherent jurisdiction under [SECTION] [ACT] the High Court has to be fully satisfied that the material produced by the accused is such that would lead to the conclusion that his/their defence is based on sound, reasonable, and indubitable facts; the material produced is such as would rule out and displace the assertions contained in the charges levelled against the accused; and the material produced is such as would clearly reject and overrule the veracity of the allegations contained in the accusations levelled by the prosecution/complainant. It should be sufficient to rule out, reject and discard the accusations levelled by the prosecution/ complainant, without the necessity of recording any evidence. For this the material relied upon by the defence should not have been refuted, or alternatively, cannot be justifiably refuted, being material of sterling and impeccable quality. The material relied upon by the accused should be such as would persuade a reasonable person to dismiss and condemn the actual basis of the accusations as false. In such a situation, the [CASE NUMBER].
judicial conscience of the High Court would persuade it to exercise its power under [SECTION] [ACT] to quash such criminal proceedings, for that would prevent abuse of process of the court, and secure the ends of justice.
30. Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps to determine the veracity of a prayer for quashment raised by an accused by invoking the power vested in the High Court under [SECTION] [ACT]:
30.1. Step one: whether the material relied upon by the accused is sound, reasonable, and indubitable i.e. the material is of sterling and impeccable quality?
30.2. Step two: whether the material relied upon by the accused would rule out the assertions contained in the charges levelled against the accused i.e. the material is sufficient to reject and overrule the factual assertions contained in the complaint i.e. the material is such as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false?
30.3. Step three: whether the material relied upon by the accused has not been refuted by the prosecution/complainant; and/or the material is such that it cannot be justifiably refuted by the prosecution/complainant?
30.4. Step four: whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice?
30.5. If the answer to all the steps is in the affirmative, the judicial conscience of the High Court should persuade it to quash such criminal proceedings in exercise of power vested in it under [SECTION] [ACT]. Such exercise of power, besides doing justice to the accused, would save precious court time, which would otherwise be wasted in holding such a trial (as well as proceedings arising therefrom) specially when it is clear that the same would not conclude in the conviction of the accused.
[CASE NUMBER].
7. It is also pointed out that the abovesaid decision of the Apex Court in [ENTITY]'s case reported in [PRECEDENT], has been subsequently followed in the case in [ENTITY] v/s State of U.P reported in AIR 2015 SC 3760 and further that the said decision in [ENTITY]'s case (Supra) has also been relied on by this court in A.V Thomas v/s State of Kerala and others reported in 2013(4) KLT
410. Further that [ENTITY]'s case (supra) and [ENTITY]'s case (supra) have been followed by this Court in [PRECEDENT] and in the order dated 21/06/2017 rendered by this court in [CASE NUMBER], etc.,
8. Having given anxious consideration of the above said pleas made by Sri. [ENTITY], learned Senior Counsel appearing for the petitioner, this Court is not in a position to countenance the said submission made on behalf of the petitioner. It is indisputable that the Regional Forensic Laboratory, Thrissur has already issued Anx. G report dated [CASE NUMBER].
04/10/2016 as mentioned herein above, which states that the signature in the present dishonoured cheque in question is not that of the petitioner, etc. But the said report forms part of the final report/charge sheet submitted by the police in Annexure F [CASE NUMBER] of Thrissur, Town West Police Station, which has now led to the institution of [CASE NUMBER] on the file of the Chief Judicial Magistrate Court, Thrissur, and in the said police charge sheeted case, the first respondent and the above said Sri.[ENTITY] are the two accused therein for aforementioned offences and the petitioner herein is defacto complainant. It is also true that the first respondent has not come forward to oppose the contentions and prayers made by the petitioner in this petition.
9. The learned Prosecutor appearing for the second respondent State and the Police Investigation Agency in Annexure F crime would also state that the final report/ charge sheet has already been submitted by the police in that crime, on 14/10/2016 and that Annexure G is the true copy of the report given by the Assistant Director (Documents) of the Regional Forensic Laboratory, Thrissur in the above said crime [CASE NUMBER].
etc. But one thing that would stare at the face of this Court is that Annexure G report has been given in a police charge sheeted case in which the first respondent complainant herein is one of the accused therein. If this Court holds that impugned the Annexure A complaint herein is liable to be quashed mainly on the ground of Annexure G report of the Forensic Science Laboratory, it would certainly amount to short-circuiting the trial in the above said police charge sheeted case and it would certainly have the direct and inevitable effect of this Court condemning the first respondent herein and the other accused (who is not even a party in this petition), in the above said crime. The factual situation would have been somewhat different if the said F.S.L report had been submitted in Annexure A complaint and there was no police charge sheeted case as the one, which has arisen out of Annexure F crime. Therefore, while doing justice to one party, this Court in exercise of its extra ordinary powers conferred under [SECTION] of the [ACT], cannot pass any order which would have the direct and inevitable consequence of short circuiting the trial in the other case (which could be styled as a [CASE NUMBER].
counter case in relation to Annexure A complaint), and such exercise of jurisdiction would certainly be illegal and improper for reasons more than one. The above said findings made by this Court cannot in any manner be even remotely construed to mean that the petitioner contentions based on Annexure G report are not tenable. This Court would only venture to say that Annexure G filed in Annexure F crime (counter case) cannot be the basis for quashing the complaint in Annexure A which could be treated as the case in relation to Annexure F counter case. But that does not mean that it is the end of the road for the petitioner. This Court has the obligation to sensitively and conscientiously to ensure that justice is duly rendered to the petitioner as well.
10. This Court had observed that going by the nature of the allegations and counter allegations raised in Annexure A complaint and Annexure F crime, those cases could be considered as "cross cases". This Court had queried to the learned prosecutor as to the stand of the State in that aspect of the matter. The learned Prosecutor would also submit that on a perusal of the allegations and counter allegations raised in [CASE NUMBER].
Annexure A complaint in [CASE NUMBER] on the file of the Judicial First Class Magistrate Court-II Thrissur as well as that in Annexure F crime, which has led to the final report/charge sheet in respect of [CASE NUMBER] on the file of the Chief Judicial Magistrate Court, Thrissur, and that the said the views expressed by this Court are correct and proper. "Case and counter" or "cross case" has been evolved as judicial term to describe two cases arising out of the same incident representing antithetical versions of the event and since both cases are inextricably related to each other and the truth of one will reveal the falsity of its cross case, it is essential that both cases be tried and heard one after the other. A Division Bench (consisting of [ENTITY] and [ENTITY], J J.) of the Madras High Court in IN Re [ENTITY], [ENTITY]'s case reported in [CASE NUMBER] has held that 'a case and counter case arising out of the same affairs should always, if practicable, be tried by the same Court and each party would represent themselves as having been the innocent victims of the aggression of the other.' In the judgment in [PRECEDENT], rendered by Justice [ENTITY] of the [CASE NUMBER].
Madras High Court (AIR 1930 Madras 190), an exhortation was made to the Legislature to provide a mechanism as a statutory provision for trial of both case and counter case by same Court and it was observed therein by the learned Judges as follows
"There is no clear law as regards the procedure in counter cases, a defect which the legislature ought to remedy.
It is a generally recognized rule that such cases should be tried in quick succession by the same judge, who should not pronounce judgment till hearing of both cases is finished."
11. The procedure in that regard has been subsequently dealt with by the Apex Court judgment in [ENTITY] and Ors. v. State of U.P and Anr. in 1990 Supp. SCC 145 = 1990 SCC (Cri. 638) wherein it has been held that the fair procedure to be adopted in case and counter case is that the same judge must try both the cases one after the other and after recording of evidence in one case is completed, he must hear the arguments, but he must reserve the judgment and thereafter he must proceed to hear the cross case and after recording all evidence, he must here the [CASE NUMBER].
arguments but reserve the judgment in that case and the same learned Judge must thereafter dispose of the matter by two separate the judgments. In deciding each of the cases, he can rely only on the evidence recorded in that particular case and the evidence recorded in the cross case cannot be looked into in the other case and nor can the judge be influenced by whatever is argued in the cross case and each case must be decided on the basis of the evidence, which has been placed on record in that particular case without being influenced in any manner by the evidence or arguments urged in the cross case. But that both judgments must be pronounced by the same learned Judge one after the other. The said judgment reentered by Apex Court in [ENTITY] case's supra is quite short and the same is extracted for profitable reference.
1. Special leave granted. Heard both the sides.
2. We think that the fair procedure to adopt in a matter like the present where there are cross cases, is to direct that the same learned Judge must try both the cross cases one after the other. After the recording of evidence in one case is completed, he must hear the arguments but he must reserve the judgment. Thereafter he must proceed to hear the cross case and after recording all the evidence he must hear the arguments but reserve the judgment in that [CASE NUMBER].
case. The same learned Judge must thereafter dispose of the matters by two separate judgments. In deciding each of the cases, he can rely only on the evidence recorded in that particular case. The evidence recorded in the cross case cannot be looked into. Nor can the judge be influenced by whatever is argued in the cross case. Each case must be decided on the basis of the evidence which has been placed on record in that particular case without being influenced in any manner by the evidence or arguments urged in the cross case. But both the judgments must be pronounced by the same learned Judge one after the other.
3. We allow this appeal partly to the aforesaid extent and direct the learned Judge to proceed with the police case and the cross case instituted by the respondent- complainant by way of a private complaint and hold the trial in both the matters in the light of the directions given herein above. Learned Judge will accord priority to these cross cases and dispose of both the cases expeditiously.
12. The aspects relating to case and counter case have been dealt with by a Full Bench of this Court in [PRECEDENT], etc. The Apex Court in the judgment in [ENTITY] and others v. State of M.P reported in 2001 (2)SCC 688 paras 8-11 has also dealt with the said issue and it will be profitable to refer to para 8-11 of said decision on [ENTITY]'s case (supra) which [CASE NUMBER].
reads as follows.
8. It is a salutary practice, when two criminal cases relate to the same incident, they are tried and disposed of by the same court by pronouncing judgments on the same day. Such two different versions of the same incident resulting in two criminal cases are compendiously called "case and counter-case" by some High Courts and "cross-cases" by some other High Courts. Way back in the nineteen hundred and twenties a Division Bench of the Madras High Court ([ENTITY] and [ENTITY], JJ.) made a suggestion ([ENTITY], In that "a case and counter-case arising out of the same affair should always, if practicable, be tried by the same court; and each party would represent themselves as having been the innocent victims of the aggression of the other".
9. Close to its heels [ENTITY], J., made an exhortation to the then legislature to provide a mechanism as a statutory provision for trial of both cases by the same court (vide [PRECEDENT]). The learned Judge said thus:
"There is no clear law as regards the procedure in counter-cases, a defect which the legislature ought to remedy. It is a generally recognized rule that such cases should be tried in quick succession by the same Judge, who should not pronounce judgment till the hearing of both cases is finished."
10. We are unable to understand why the legislature is still parrying to incorporate such a salubrious practice as a statutory requirement in the Code. The practical reasons for adopting a procedure that such cross-cases shall be tried by the same court, can be summarised thus: (1) It staves off the danger of an accused being convicted before his whole case is before the court. (2) It deters conflicting judgments being delivered upon similar facts. (3) In reality the case and the counter-case are, to all intents and purposes, different or conflicting versions of one incident.
11. In fact, many High Courts have reiterated the need to follow the said practice as a necessary legal requirement [CASE NUMBER].
for preventing conflicting decisions regarding one incident. This Court has given its approval to the said practice in [PRECEDENT] The procedure to be followed in such a situation has been succinctly delineated in the said decision and it can be extracted here: (SCC pp. 145-46, para 2) "2. We think that the fair procedure to adopt in a matter like the present where there are cross-cases, is to direct that the same learned Judge must try both the cross- cases one after the other. After the recording of evidence in one case is completed, he must hear the arguments but he must reserve the judgment. Thereafter he must proceed to hear the cross-case and after recording all the evidence he must hear the arguments but reserve the judgment in that case. The same learned Judge must thereafter dispose of the matters by two separate judgments. In deciding each of the cases, he can rely only on the evidence recorded in that particular case. The evidence recorded in the cross-case cannot be looked into. Nor can the Judge be influenced by whatever is argued in the cross-case. Each case must be decided on the basis of the evidence which has been placed on record in that particular case without being influenced in any manner by the evidence or arguments urged in the cross-case. But both the judgments must be pronounced by the same learned Judge one after the other."
13. In the light of the above said legal principles laid down by the Apex Court and by this Court in the aforecited judgments, this Court is of the considered opinion that the matter in Annexure A complaint and the case in Annexure F crime, could be treated as cross cases and should be tried by the same Court one after the other as envisaged by the Apex Court in [ENTITY]'s case supra reported in [PRECEDENT].
[CASE NUMBER].
14. Based on the directions issued by this Court, the Chief Judicial Magistrate Court, Thrissur has given a report dated 03/08/2017 about the current status of [CASE NUMBER] on the file of that Court, in which the first respondent herein is one of the accused. It is stated that the said case is a charge sheeted by the Sub Inspector of Police, Thrissur Town West Police Station, alleging commission of offenses punishable under [SECTION], [SECTION], [SECTION], [SECTION], [SECTION] of [ACT] against Sri. [ENTITY] and Sri. [ENTITY] (R1 herein) and that the Court had taken cognizance of the case on 25/10/2016 and summons was issued to both the accused for appearance on 08/12/2016 , and on 08/12/2016 both the accused were absent and they applied through the counsel and sought time for appearance. The said application was allowed and the case was posted to 23/03/2017 and on that day, there was no sitting enhance the office re-posted the case to 09/05/2017 and on 09/05/2017 also, both the accused were absent and defense counsel filed an application for excusing their absence and then the case was adjourned to 07/07/2017 for the appearance of the accused. On 07/07/2017 also, the [CASE NUMBER].
defense counsel filed application and submitted that he will produce both the accused by the end of that month and therefore time was granted and the case was posted on 28/07/2017, but on 28/07/2017 also both the accused were absent and therefore application filed on behalf of the accused was rejected and non bailable warrant was issued against both the accused canceling the bail granted to them during the trial stage and notice to the sureties have also been ordered on 28.6.2017 and the case is now posted to 22/09/2017. It is further stated by the CJM that several old cases are pending before that Court. It is also brought to notice that the charges could not be framed against the accused in [CASE NUMBER], only on account of the repeated non-appearance of the accused and that the steps in that regards will be taken after procuring their presence. Further it is stated that in view of the pendancy of old matters, the said court will require at least 6 months' time for disposal of [CASE NUMBER] after framing of charges against the accused.
15. As regards the matter in Annexure A complaint, a report by the Judicial First class Magistrate Court, No.II, [CASE NUMBER].
Thrissur, has been furnished to the Registry of this Court stating that the complainant in [CASE NUMBER] on the file of the said court, has not appeared before that court in person, but has been represented through counsel and that the accused in that case had not appeared before this Court so far and that bail was also not granted, prior to the interim stay order granted by this Court in the present [ACT]., and that the accused has filed vakalath in this case on 01/08/2014 and the case now stands posted to 01/11/2017 , etc.
16. The learned Prosecutor appearing for the respondent State would also submit, on the basis of instructions of the Investigating Officer in Annexure F crime that all reasonable and earnest efforts would be taken by the Police authorities concerned to ensure the execution of the non-bailable warrant issued by CJM, Thrisur, in [CASE NUMBER] and to ensure that the accused are made available before the said court for trial and that the assistance of the District Police Chief, Thrissur, as well as other higher competent Police officials will also be sought by the Investigating Officer to ensure that the non bailable warrant [CASE NUMBER].
issued by the CJM, Thrisur is executed without any further delay. The said submissions made on behalf of the respondent State are recorded.
17. Therefore in order to render a justice to both parties, it is ordered that the main prayer made by the petitioner for quashment of the impugned Annexure A complaint, cannot be granted by this Court in this petition. However, it is ordered that the matters in Annexure A and in Annexure F should be treated as cross cases and, to facilitate that both case and counter case are tried by the same court, one after the other, it is ordered that [CASE NUMBER] on the file of the Judicial First Class Magistrate Court, No.II, Thrisur (which arises out of the impugned Annexure A complaint) will stand forthwith transferred to the file of the Chief Judicial Magistrate Court, Thrisur, who is dealing with [CASE NUMBER]. The petitioner will produce certified copy of this order before both the Magistrates. Upon receipt of a copy of this order, the Judicial First Class Magistrate Court, No.II, Thrisur, will take immediate steps to ensure that all the case papers in relation to [CASE NUMBER] are transmitted to the [CASE NUMBER].
CJM, Thrissur, who is dealing with [CASE NUMBER]. After receipt of the said case papers in Annexure A complaint, the CJM, Thrisur will take steps to issue summons to the petitioner, upon which, the petitioner will personally appear before the said court and may make necessary application for grant of bail. The learned Senior Counsel appearing for the petitioner would also submit that, this Court may pass necessary orders directing the Chief Judicial Magistrate Court, Thrisur, who is dealing with the matter to grant personal exemption to the petitioner in the matter in Annexure A complaint, by virtue of the enabling powers conferred under [SECTION] of [ACT]. It is ordered that after securing of bail, it will be open to the petitioner to file an appropriate application through his counsel seeking personal exemption by virtue of the enabling powers under the [SECTION] of [ACT]. in which case, the learned Magistrate shall consider that application favorably taking into account the special facts and circumstances of this case as mentioned herein above. It is also made clear that the petitioner will also be at liberty to file a proper application at the approximate stage seeking personal [CASE NUMBER].
exemption at the stage of [SECTION] [ACT] questioning process and such application may be considered by the trial Court, subject to the fulfillment of the necessary condition as envisaged in the dictum laid down by the Apex Court in [PRECEDENT].
18. The Chief Judicial Magistrate Court, Thrissur, will also ensure that unnecessary delays are avoided to ensure charges are framed against the accused in [CASE NUMBER] without any other further delay. Both these cases should be tried one after the other in the light of the legal principles laid down by the Apex Court in [ENTITY]'s case (supra) and the trial in [CASE NUMBER] should commence first and thereafter the trial Anexure A complaint should commence. It is for the petitioner to produce a certified copy of the Anx.G FSL report in Anx.A complaint and to ensure that, if necessary, that the expert person from FSL is examined as defence witness etc. It will be open to the petitioner to raise all other contentions before the court in relation to both these matters. All efforts may be taken to ensure that the trial in both the matters is [CASE NUMBER].
completed in consonance with the directions issued in the aforecited judgment in [ENTITY]'s case supra, within a period of 6-8 months after charges are framed against the accused in [CASE NUMBER]. None of the findings and observations of this Court made in this order shall be construed as an expression of merits on any of the issues involved in the controversies in both these cases and all those matters are best left to the realm and domain of the trial court concerned. The Registry will forward copies of this order to the Judicial First Class Magistrate Court - II, Thrissur and the chief Judicial Magistrate Court, Thrissur.
With these observations and directions, the aforecaptioned Criminal Miscellaneous Case stands finally disposed of.
[ENTITY], JUDGE Dxy