IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 16TH DAY OF DECEMBER 2011/25TH AGRAHAYANA 1933 CRRP.No. 2847 of 2011 (A) [C.C. NO.362/2002 OF THE ADDITIONAL CHIEF JUDICIAL MAGISTRATE'S COURT, THIRUVANANTHAPURAM DTD. 23/09/2011] .......... PETITIONER/1ST ACCUSED: DR.C.SREEVARDHANAN, NHRA NO.74, V.V.ROAD, PATTOOR, THIRUVANANTHAPURAM. BY ADV.SRI.PIRAPPANCODE V.S.SUDHIR. RESPONDENT/COMPLAINANT & STATE: 1 LEELABHAI, SREESIODHI HOUSE, PULIKKAL LANE, KUDAVOOR, ANAYARA, THIRUVANANTHAPURAM - 695 142. 2 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, OFFICE OF THE ADVOCATE GENERAL, HIGH COURT BUILDING, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SRI. T.R. RAJESH. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 16-12-2011 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: CRL.R.P.NO.2847/2011-A: APPENDIX PETITIONER'S ANNEXURES:- ANNEXURE I: COPY OF THE COMPLAINT FILED BY THE R.1. ANNEXURE II: COPY OF THE FIRST INFORMATION REPORT IN CRIME NO.65/2000 OF PETTAH POLICE STATION. ANNEXURE III: COPY OF THE ADDITIONAL CHIEF JUDICIAL MAGISTRATE, THIRUVANANTHAPURAM BY JUDGMENT DTD. 20/05/2008. ANNEXURE IV: COPY OF THE ORDER DTD. 09/05/2007 OF THE LEARNED ADDITIONAL CHIEF JUDICIAL MAGISTRATE'S COURT IN C.C. NO. 362/2002. ANNEXURE V: COPY OF THE ORDER DTD. 11/07/2008 OF THIS HONOURABLE COURT IN CRL.R.P.NO.842/2008. ANNEXURE VI: COPY OF THE EVIDENCE GIVEN BY PW1 IN THE FIRST OCCASION ON 10/04/2007. ANNEXURE VI(A): COPY OF THE EVIDENCE GIVEN BY PW1 IN THE FIRST OCCASION ON 07/02/2010. RESPONDENTS' ANNEXURES:- NIL. //TRUE COPY// P.A. TO JUDGE Prv. S.S.SATHEESACHANDRAN, J -------------------------------------- Crl.R.P No.2847 OF 2011 ----------------------------------------- Dated this the 16th day of December 2011 ORDER Petitioner is the 1st accused in C.C No.362/2002 on the file of the Additional Chief Judicial Magistrate, Thiruvananthapuram. The above case arose on a complaint filed by the 1st respondent imputing offences under Sections 109, 120B, 143, 147, 148, 447, 427, 453 r/w Section 149 IPC and Section 25 of the Indian Telegraphs Act. She had filed, previously, a complaint before the magistrate in respect of the very same incident alleged in the present case, and that complaint was referred to police for investigation and report under Section 156(3) of the Code of Criminal Procedure. Pursuant to the investigation, the police laid a report against the accused, thirty in number. In the report filed by the police, the petitioner herein, who, according to the complainant, was also culpable for the offences committed, was not included as one among the accused. She thereupon filed a protest complaint naming the petitioner as the 1st accused, and four others also, who have been already arrayed as among the accused in the report of the police. That protest complaint, after recording her evidence, was turned down by the magistrate passing an order of discharge of the Crl.R.P No.2847 OF 2011 2 accused. Thereupon, she approached this court challenging the order of discharge passed in favour of the accused including the present petitioner, filing Crl.R.P No.842/2008. The order passed in that revision has been produced by the petitioner as Annexure A5. This court, holding that the magistrate has acted illegally in discharging the accused and opining that this was a case which should have gone for trial, remitted the matter for fresh consideration. Pursuant to Annexure A5 order, when the case came up for consideration before the magistrate, the petitioner and the other accused again pressed for their discharge. Meanwhile, the police charge sheeted case against the accused, who included the accused Nos. 2 to 5 in the protest complaint of the 1st respondent/complainant, after trial, had ended in their acquittal. So much so, in view of the order of acquittal rendered in favour of accused Nos.2 to 5, a fresh trial against them on account of the principles of double jeopardy, as covered under Section 300 of the Code of Criminal Procedure, was found impermissible by the magistrate, and, accordingly, an order of discharge was passed in their favour. As against the petitioner, the first accused in the protest complaint, the magistrate found that his plea for discharge was not entertainable. Impeaching the propriety, legality and correctness of that order, the petitioner has filed this revision. Crl.R.P No.2847 OF 2011 3 2. Notice was issued to the 1st respondent/complainant. After acceptance of notice, she has not appeared. 3. I heard the learned counsel for the petitioner and also the Public Prosecutor. The allegations imputed in the complaint proceed on the basis that the petitioner is an abettor and also a conspirator with the other accused in the crime committed, and as such when the other accused have already been acquitted after a full pledged trial, the trial against the petitioner is vitiated and he is therefore entitled to an order of discharge, is the submission of the counsel. I do not find any merit in the submission so made to assail the order of the magistrate. Perusing the impugned order passed by the magistrate, I find that on the materials placed, the magistrate found that the trial as against the petitioner has to proceed. That conclusion formed has also to be taken note in the light of Annexure A5 order quashing the earlier order passed by the magistrate discharging the accused. In A5 order this court has quashed the previous order of discharge expressing the view that the magistrate had acted illegally in discharging the accused and this is a case which should have gone for trial. A fresh trial against some of the accused (A2 to A5) is barred as they have been once tried for the same offence on the police charge sheeted cases and acquitted by the court, cannot be canvassed by the petitioner/1st accused to seek his discharge Crl.R.P No.2847 OF 2011 4 who has not so far faced any trial. When previous order of discharge rendered in his favour had been quashed by the court expressing the view that the case should have gone for trial, the circumstances which arose on account of previous trial and acquittal A2 to A3 would apply to such accused only, and not in any way in favour of the petitioner/ the 1st accused. Whatever defences available to the petitioner can be canvassed by him in trial. There is no merit in the revision, and it is dismissed. Sd/- vdv S.S.SATHEESACHANDRAN, JUDGE //True Copy// P.A to Judge