IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 30TH SEPTEMBER 2008 / 8TH ASWINA 1930 Crl.Rev.Pet.No. 3123 of 2008() ------------------------------ AGAINST THE ORDER DATED 17/01/2008 IN CMP 721/2007 IN CC.230/2006 of ADDL.CHIEF JUDICIAL MAGISTRATE COURT, THALASSERY .................... REVN. PETITIONER(S): REVISION PETITIONER ---------------------------------------- R.K.RAGHAVAN, S/O.ANDY, 52 YEARS, SCHOOL MANAGER, RESIDING AT PANUNDA P.O.PACHAPOIKA, KANNUR DISTRICT. BY ADV. SRI.K.P.HAREENDRAN RESPONDENT(S): --------------- 1. T.P.PAVITHRAN, S/O.DAMODHARAN, 52 YEARS, MEMBER, KUTHUPARAMBA EDUCATIONAL SOCIETY, P.O.MOORIYAD, KUTHUPARAMBA. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI P RAVEENDRA BABU SRI.M.RAMESH CHANDER FOR R1 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 30/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ........................................... CRL.R.P.NO. 3123 OF 2008 ............................................ DATED THIS THE 30th DAY OF SEPTEMBER, 2008 ORDER Petitioner is the accused in C.C.230 of 2006 on the file of Chief Judicial Magistrate, Thalassery. It was a private complaint filed by first respondent alleging that petitioner committed offences under Section 406 and 420 IPC. Petitioner filed CMP 721 of 2007 contending that in respect of the same matter, Vigilance has registered a case as V.C.3 of 2007, evidenced by Ext.P1 F.I.R and there is an allegation that petitioner committed an offence under Section 409 and 420 IPC also and therefore the private complaint is to be stayed under Section 210 of Code of Criminal Procedure and investigating officer is to be directed to file a report. 2. Learned Magistrate, under order dated 17.1.2008, dismissed the petition for the reason that Section 210 of Code of Criminal Procedure cannot be made applicable, as Ext.P1 F.I.R relate to an offence under Prevention of Corruption Act, which cannot be tried by the learned Magistrate and can only be tried by the special Judge notified under the Prevention of Corruption Act. This revision petition is filed under Section 397 and 401 of CRRP 3123/2008 2 Code of Criminal Procedure. 3. Learned counsel appearing for petitioner and first respondent were heard. The argument of learned counsel appearing for petitioner is that, as is clear from Ext.P1 F.I.R in Crime No.3 of 2007, registered by Vigilance and Anti Corruption Bureau, Kannur, allegation against petitioner is that he committed, in addition to the offence under Section 13(1)(c) and (d) read with Section 13(2) of Prevention of Corruption Act, offences under Section 409 and 420 IPC and the allegation in the private complaint is that he committed offence under Section 406 and 420 IPC and if petitioner is to be tried in the private complaint for the offence under Section 406 and 420 IPC and he is again to be tried on the basis of a final report that may be filed in Ext.P1 Crime No.3 of 2007 of VACB, Kannur, it would amount to double jeopardy, which is prohibited under Section 300 of Code of Criminal Procedure and therefore learned Magistrate should have invoked the power provided under Section 210 of Code of Criminal Procedure and directed Dy.S.P, Vigilance to file a report and the impugned order is to be quashed. 4. Learned counsel appearing for first respondent CRRP 3123/2008 3 submitted that as rightly found by learned Magistrate, even if a final report is to be filed in Crime No.3 of 2007 of VACB, Kannur petitioner can only be tried by Special Judge(Vigilance) in that case and as that case cannot be tried by learned Magistrate, who is trying the private complaint and Section 210 of Code of Criminal Procedure cannot be made applicable and therefore the petition was rightly dismissed. 5. The allegation against the petitioner is that he misappropriated funds of Koothuparamba Educational Society being the Secretary of the Society. The offences alleged in the private complaint are Section 406 and 420 IPC. Though Vigilance and Anti Corruption Bureau had registered a case, as against the petitioner with regard to offences committed by him, the offence alleged is mainly under Section 13(1)(c) and (d) read with Section 13(2) of Prevention of Corruption Act, though offences under Section 409 and 420 IPC also are alleged. Section 210 of Code of Criminal Procedure provides the procedure to be followed when there is a complaint case and a police investigation in respect of the same offence. Under sub- section (1) of Section 210 of Code of Criminal Procedure, when in a case instituted otherwise than on a police report, it is made CRRP 3123/2008 4 to appear to the Magistrate during the course of enquiry or trial held by him that an investigation by police is in progress in relation to the offence which is the subject matter of enquiry or trial held by him, the Magistrate shall stay the proceedings of such enquiry or trial and call for a report on the matter from the police officer conducting the investigation. Under sub-section (2), if a report is made by the police officer under Section 173 of Code of Criminal Procedure and on such final report, cognizance of any offence is taken by the Magistrate, against any person who is an accused in the complaint case, Magistrate shall enquire into or try together, the complaint case and the case arising out of police report as if both cases were instituted on a police report. Sub-section (3) provides that if the report does not relate to any accused in the complaint case or if Magistrate does not take cognizance of any offence on the police report, he shall proceed with the enquiry or trial, which was stayed by him in accordance with the provisions of the Code. Therefore purpose of Section 210 of Code of Criminal Procedure is to try the complaint case as well as private complaint together, if a final report is to be submitted by police after investigation in respect of the same offence for which complaint case was filed. When an CRRP 3123/2008 5 offence under Prevention of Corruption Act cannot be tried by the Magistrate, who is enquiring the complaint or trying a private complaint, it cannot be said that even if a report is called for by the Magistrate as provided under sub-section (1) of Section 210 of Code of Criminal Procedure, and ultimately a final report is filed under Section 173 of Code of Criminal Procedure in the case registered by Vigilance Police, both the cases could be tried together by the learned Magistrate. In such circumstances, learned Magistrate was justified in not calling for a report as provided under Section 210 of Code of Criminal Procedure. If grievance of the petitioner is that he cannot be tried for the same offence in the private complaint as well as before the Special Court, if ultimately a final report is to be filed by Vigilance alleging an offence under Section 406 and 420 IPC, also in addition to the offence under Prevention of Corruption Act, petitioner is entitled to take up the defence based on Section 300 of Code of Criminal Procedure at that stage. Revision petition is dismissed. M.SASIDHARAN NAMBIAR, JUDGE lgk/-