IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 1ST JUNE 2009 / 11TH JYAISHTA 1931 Crl.MC.No. 2777 of 2007() ------------------------- AGAINST THE ORDER DATED 08/08/2007 IN CMP. 909 /2007 IN CC.35/2006 of JUDL. MAGISTRATE OF FIRST CLASS-II(MOBILE), KOTTAYAM .................... PETITIONER(S): ACCUSED NO.2: ------------------------------------------------- K.J.VINOD, S/O. K.C.JOSEPH, OFFICE SECRETARY,VAIDEEKA SABHA SAMRAKSHANA SADANAM, THUMPAMON P.O.,PATHANAMTHITTA DISTRICT, RESIDING AT KULANGARAYIL HOUSE,KOOTTIKAL KARA, KANJIRAPALLY, KOTTAYAM. BY ADV. MR.M.P.MADHAVANKUTTY RESPONDENT(S): COMPLAINANTS & STATE: ------------------------------------------------------------------- 1. ALMAYA VEDI,(LAYMENS FORUM),HAVING ITS REGISTERED OFFICE AT M.D.S.COMPOUND, KOTTAYM-1, REPRESENTED BY ITS SECRETARY, ADV. DR. P.C.MATHEW. 2. ADV. DR. P.C. MATHEW, ANCHERIL-PUTHUMANA, MALAM P.O., KOTTAYAM. 3. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.. R1 & R2 BY ADV. MR.M.J.THOMAS R3 BY PUBLIC PROSECUTOR MR. AMJAD ALI THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 01/06/2009,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss ORDER ON CRL.M.A.NO.5129/2007 IN CRMC.NO.2777/2007 DISMISSED 1/06/2009 SD/- M.SASIDHARAN NAMBIAR, JUDGE /TRUE COPY/ P.S.TO JUDGE Kss M.SASIDHARAN NAMBIAR,J. =========================== CRL.M.C.No.2777 OF 2007 =========================== Dated this the 1st day of June,2009 ORDER Petitioner is the second accused in C.C.35/2006 on the file of Judicial First Class Magistrate Court -II, Kottayam. The case was taken cognizance by the Magistrate on the basis of Annexure I complaint filed by the first complainant Almaya Vedi represented by its Secretary who is shown as the second complainant. When it was brought to their notice that a joint complaint by two persons is not maintainable, Annexure V application was filed with a prayer to remove numbers 1 and 2 shown in the cause title. That petition was filed under section 216 of Code of Criminal Procedure. Petitioner opposed the application contending that petition is not maintainable. Under Annexure V order learned Magistrate found that Section 216 of the Code of Criminal Procedure was wrongly quoted and still the application is to be considered on merit. It was found that when a joint complaint is filed by more than one complainant, for that reason alone the complaint cannot be dismissed and an opportunity is to be granted Crl.M.C.2777/2007 2 to cure the defect. But it was found that the mode adopted by the complainants is not correct and by removing numbers 1 and 2 from the cause title, the defect cannot be cured. Therefore the petition was dismissed. Thereafter second complainant filed Annexure VII petition to delete him from the array of the complainant and to permit him to be a witness in the complaint. It is also pointed out that the first complainant, who would be the sole complainant if the petition is allowed, is represented by its Secretary the second complainant. Petitioner filed Annexure VII objection contending that the petition would amount to review of the earlier order and when the earlier application was dismissed petitioner is not entitled to file another application for the same relief. Under Annexure IX order learned Magistrate allowed the application. It is challenged in this petition filed under section 482 of the Code of Criminal Procedure. 2. Learned counsel appearing for the petitioner and learned counsel appearing for the respondents were heard. 3. It is not disputed that a joint complaint filed by two persons is not maintainable. It is also not disputed that such a complaint cannot be dismissed for that sole reason and an opportunity is to be granted to cure the defect. How such a complaint could be cured is dealt by Crl.M.C.2777/2007 3 this court in Zain Sait v. Intex-Painter, Interior Decorators (1993 (1) KLT 532). Annexure VII application was filed consequent to Annexure VI order dismissing the earlier petition for the reason that the mode adopted by the complainant to cure the defect is not correct. By Annexure VII petition the complainant sought to cure the defect by permitting the first complainant to proceed with the complaint and the second complainant, who is none other then the Secretary of the first complainant, who represented by first complainant to be a witness. Learned Magistrate rightly allowed the petition under Annexure IX order. I cannot agree with the submission of the learned counsel that Annexure IX order would amount to review of Annexure VI order. If under Annexure VI order, the earlier petition was dismissed on the ground that complainants are not entitled to cure the defect by filing a joint complaint and under Annexure IX order the defect was not allowed on the ground that defect cannot be cured it could have been interpreted that the second order would amount to review of the first order. But that is not the case herein. Learned Magistrate himself found that the defect could be cured. Under Annexure VI order, permission sought for was not granted to cure the defect for the sole reason that the Crl.M.C.2777/2007 4 mode adopted is not correct. Therefore when a proper application is filed under Annexure IX order and it was allowed it cannot be termed as review of the earlier order. As per Annexure IX order the learned Magistrate allowed the prayer to treat the complaint as the one filed by first petitioner and second petitioner as one of the witnesses. I find no reason to interfere with the order. Petition is dismissed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006