IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 2ND AUGUST 2011 / 11TH SRAVANA 1933 Crl.Rev.Pet.No. 1882 of 2011() ------------------------------ CMP.1884/2010 IN C.C.NO.2/2006 of JUDL. MAGISTRATE OF FIRST CLASS, MALAPPURAM .................... REVN. PETITIONER(S)/PETITIONERS/ACCUSED: ---------------------------- 1. MUJEEB ERAMBATH,S/O.ABDU HAJI, KIZHAKKEKULAMBA,VADAKANKARA AMSOM,DESOM, MAKKARAPARAMBA. 2. SHAREEF ERAMBATH, S/O.ABDU HAJI, KIZHAKKEKULAMBA,VADAKANKARA AMSOM,DESOM, MAKKARAPARAMBA. 3. RASHEED ERAMBATH S/O.ABDU HAJI, KIZHAKKEKULAMBA,VADAKANKARA AMSOM,DESOM, MAKKARAPARAMBA. BY ADV. SRI.T.A.UNNIKRISHNAN RESPONDENT(S)/RESPONDENTS/COMPLAINANT AND STATE: ------------------------------------ 1. THANKAYATHIL SAIDALAVI,S/O.MAMMUHAJI MAKKARAPARMBA AMSOM, DESOM, VADAKANKARA 676 125. 2. STATE OF KERALA REP.BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. SABU SREEDHARAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 02/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ------------------------------- Crl.R.P.NO.1882 OF 2011 ----------------------------------- Dated this the 2nd day of August, 2011 O R D E R The accused, three in number, in C.C.No.2 of 2006 on the file of the Judicial First Class Magistrate Court, Malappuram, have filed this revision challenging the legality and correctness of the order passed by the learned Magistrate declining their request for discharge, moved under a petition numbered as C.M.P.No.1884 of 2010. The aforesaid calender case was taken cognizance on a private complaint, wherein, the complainant, dissatisfied with the final report filed by the police, in which, one accused (A1) alone was implicated, alleged that the other accused A2 and A3 were also involved in the commission of the offences imputed. Admittedly, the 1st petitioner herein had challenged the cognizance taken on such private complaint on various grounds including one of double jeopardy; but, turning down the challenges, this Court by order dated 9.2.2010, Crl.R.P.NO.1882/2011 2 rendered in Crl.M.C.No.1961 of 2006, directed the court below to conduct the trial of the two cases in succession following the guidelines given in Samuel Mathai v. State of Kerala (2007 (4) KLT 736). From the submissions made by the counsel, the main grievance of the petitioners is that despite the specific direction given as aforesaid and also how two cases in which different versions over the same incident is presented, the procedure followed by the court below was erroneous causing prejudice to the accused. In such circumstances, the accused in the case are entitled to a discharge as under Section 245 (1) of the Cr.P.C. is the submission of the counsel. Going through the order passed by the learned Magistrate, declining the request of the petitioners for discharge, I find no impropriety, leave alone, any infirmity. This Court in Mani v. Swaminathan (1986 KLT 170) following the guidelines given Harijinder Singh v. State of Punjab and others (AIR 1985 SC 404) has spelt out the procedure to be followed when two cases are presented with divergent versions over the incident giving rise to the prosecution of some accused or more than one accused in the other case. The two cases, presenting such divergent versions, it Crl.R.P.NO.1882/2011 3 has been stated, should be tried together by the same court, but not consolidated. Evidence in such cases should be recorded one after the other. However, after completion of the evidence in one case, the judgment should be withheld and, then, the evidence in the other case will have to be recorded. Thereafter, both the cases should be simultaneously disposed of by two separate judgments taking care that the judgment in one case is not based on the evidence recorded in the other. Whatever be the challenges canvassed by the petitioners as to the procedural irregularity, if any, committed by the learned Magistrate in the trial of the case, that cannot be canvassed as a circumstance enuring in their favour to set up a plea of discharge. Plea of discharge in a case taken cognizance on a private complaint wherein offences imputed demand trial as in a warrant case, can be sustained only on the grounds covered by sub sections (1) or (2) of Section 245 of the Cr.P.C., as the case may be. If materials are available on the evidence let in by the complainant to inculpate the accused for the offences imputed, then, definitely, trial has to proceed in accordance with the procedure laid down by law. A discharge as canvassed by the petitioners would be Crl.R.P.NO.1882/2011 4 available to them only if they are able to show that no case on the materials has been made out against them. That not being the case presented, I am not impressed by the submissions made that there has been procedural irregularity in the trial of the case by the learned Magistrate. I am not expressing any opinion on such challenge made by the counsel, which the petitioners are at liberty to canvass in appropriate stages, if need be. Subject to the above observations, the revision is dismissed. S.S.SATHEESACHANDRAN JUDGE prp Crl.R.P.NO.1882/2011 5