IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT MONDAY, THE 30TH JUNE 2008 / 9TH ASHADHA 1930 Crl.MC.No. 2418 of 2008() ------------------------- AGAINST THE ORDER DATED 06/10/2007 IN CRMP 5400/07 IN CC.282/2005 of JUDL.MAGISTRATE OF FIRST CLASS-III, KOTTAYAM .................... PETITIONER: ------------- INDIRA, KUNNATHUKALATHIL HOUSE, KUMARAKOM VILLAGE, KOTTAYAM. BY ADV. SRI.K.GOPALAKRISHNA KURUP SRI.N.RAGHURAJ RESPONDENTS: ----------------- 1. PREMA, KALIYATTUVELIYIL (DILEEP SADANAM) ,MARARIKULAM NORTH VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT; 2. DHANESAN, KALIYATTUVELIYIL (DILEEP SADANAM)MARARIKULAM NORTH VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT; 3. SULOCHANA, KALIYATTUVELIYIL (DILEEP SADANAM,), MARARIKULAM NORTH VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT. 4. DILEEPKUMAR, DILEEP SADNAM, MARARIKULAM, NORTH VILLAGE, CHERTHAL TALUK, ALAPPUZHA DISTRICT, 5. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR, SRI.GIKKU JACOB FOR R5 THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 30/06/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ----------------------------------------------- Crl.M.C. No. 2418 OF 2008 ----------------------------------------------- Dated this the 30th day of June, 2008 O R D E R The petitioner is the defacto complainant in a prosecution for offences punishable under Sections 498, 323, 324 and 406(2) read with Section 34 IPC. Cognizance in that case has been taken on the basis of a final report submitted by police after due investigation. 2. While that prosecution was pending, the petitioner had filed a complaint before the Magistrate complaining about the inadequacy of investigation and further alleging that in addition to the offences referred above for which cognizance was taken in the police charged case, the accused persons have committed offences punishable under Sections 379 and 341 IPC also. Cognizance appears to have been taken by the learned Magistrate though the sections of law for which cognizance has been taken is not very clear from the documents presently placed before me. The Private complaint and the police charge case were numbered as CC 1266/04(police charge case) and CC Crl.M.C. No. 2418 OF 2008 2 No.282/05(the private complaint). 3. The accused in these cases are common. Substantially, the witnesses are also common. Accused 3 and 4 filed Crl.M.C No.5400 of 2007 in the private complaint requesting that there may be consolidation of charges and a common trial may be conducted. The section of law quoted was Section 210 Cr.P.C. The learned Magistrate after hearing both sides appears to have been passed Annexure A3 order under which joint trial has been directed to be held in these two cases. 4. Petitioner/defacto complainant claims to be aggrieved by the impugned order. First of all it is contended that the learned Magistrate has not considered the crucial question whether “the prosecution version in the police case and the private complaint case are materially different, contradictory and mutually exclusive”. Without and before deciding this crucial question, no consolidation of charges should have been directed under Section 223 Cr.P.C. The learned counsel for the petitioner submits that Section 210 Cr.P.C has no application whatsoever in the facts and circumstances of this case as the private complaint was filed long Crl.M.C. No. 2418 OF 2008 3 after the final report was filed and cognizance was taken on the basis of the final report. 5. I find merit in the submissions of the learned counsel for the petitioner. I am satisfied that the learned Magistrate should not have ordered consolidation of charges under Section 223 Cr.P.C in the private complaint and the police charge case. This is absolutely clear in the light of the pronouncement of the Supreme Court in Harjinder Singh v. State of Punjab [1985 SC 404], Mani v. Swaminathan [1986 KLT 170], Peter v. Kurian [1994 (1) KLT 17] and Samuel Mathai V. State of Kerala [2007(3) KHC 682]. It is certainly not the law that merely because some further offences are alleged to have been committed, a separate trial must be held in a private protest complaint. The crucial question is whether the allegations raised in the two cases “are materially different, contradictory and mutually exclusive” as to justify separate trial in the two cases. If they are the procedure prescribed in Mani v. Swaminathan(supra), will have to be followed. If they are not, consolidation of charges is perfectly Crl.M.C. No. 2418 OF 2008 4 justified. 6. In as much as the learned Magistrate has not considered this aspect in detail and there is nothing to indicate that mind has been applied by the learned Magistrate pointedly to this crucial aspect. I am of opinion that the impugned order can be set aside and the learned Magistrate can be directed to consider the prayer for consolidation, under Section 223 Cr.P.C (and not Section 210 Cr.P.C), afresh after giving the petitioner herein and the accused persons an opportunity to advance their respective contentions. 7. In the nature of the order which I propose to pass, I am satisfied that it is not necessary to wait for issue and return of notice to the accused/petitioner in Crl.M.C No.5400/07. 8. The learned counsel for the petitioner submits that the case now stands posted to 01.07.08 with non bailable warrant issued against the witnesses. I direct that warrant of arrest need not be executed, if witnesses do appear before the learned Magistrate on 01.07.08 and undertake to appear before court on the next date of posting to be fixed by the court, after disposal of Crl.M.C No.5400/07 afresh in accordance with law. Crl.M.C. No. 2418 OF 2008 5 9. This petition is, in these circumstances allowed to the above extent. Handover copy today itself. R. BASANT, JUDGE ttb Crl.M.C. No. 2418 OF 2008 6 Crl.M.C. No. 2418 OF 2008 7