Madras High Court
Muthuramalingam vs Thangachamy on 24 November, 2011
Author: S.Tamilvanan
Bench: S.Tamilvanan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 24/11/2011 CORAM THE HONOURABLE MR.JUSTICE S.TAMILVANAN Crl.R.C(MD)No.668 of 2011 and M.P.(MD)No.1 of 2011 Muthuramalingam ... Petitioner Vs. 1.Thangachamy 2.Vasuki 3.Thavamani ... Respondents PRAYER Criminal Revision Petition is filed under Section 397 read with 401 of the Code of Criminal Procedure, to call for the records from the Lower Court and to set aside the order dated 20.07.2011 passed in Cr.M.P.No.5535 of 2010 in C.C.No.135 of 2010, on the file of the Learned Judicial Magistrate, Aruppukkottai, Virudhunagar District. !For Petitioner ... Mr.V.Palani ^For Respondents... Mr.K.Kumaravel :ORDER
The Criminal Revision has been preferred by the petitioner under Section 397 read with 401 of Cr.P.C., challenging the order, dated 20.07.2011, made in Crl.M.P.No.5535 of 2010 in C.C.No.135 of 2010, on the file of the Learned Judicial Magistrate, Aruppukkottai.
2.Heard both the learned counsel appearing for the petitioner and the respondents.
3.It is seen that the Miscellaneous petition in Crl.M.P.No.5535 of 2010 had been filed before the Court below under Section 210(2) Cr.P.C. to pass an order clubbing together the cases in C.C.No.57 of 2010 and C.C.No.135 of 2010 pending on the file of the Court below. The learned Judicial Magistrate has dismissed the said petition. Aggrieved by which, the present revision has been preferred by the petitioner herein.
4.It is seen that the case in Crime No.68 of 2009 was taken on file, on the complaint given by the petitioner/de facto complaint viz., Thangachamy under Sections 294(b), 324 and 506(ii) I.P.C.,
5.Learned counsel appearing for the petitioner submits that the occurrence had taken place on the same day, same time and place and the offence was committed by the first respondent, Thanagachamy and the respondents 2 and 3 namely Vasuki, Thavamani. However, the case was dropped by the Court below against the respondents 2 and 3 and hence the petitioner herein filed a protest petition under Section 210(2) Cr.P.C., and it was treated as Private complaint under Section 200 Cr.P.C. and a case was taken on file as a case registered on a private complaint and both cases are pending before the Court below.
6.Similarly a counter case is also pending based on the complaint given by the first respondent herein against the revision petitioner in C.C.No.76 of 2009 on the file of the Court below.
7.Learned counsel appearing for the petitioner drew the attention of this Court to Sub-Section 2 of Section 210 of Cr.P.C., which stipulates the procedure to be followed, when there is complaint case and a case arising out of police investigation in respect of the same offence. Sub-Section 2 of the said Section reads as follows:
"(2) If a report is made by the investigating police officer under Section 173 and on such report cognizance of any offence is taken by the Magistrate against any person who is an accused in the complaint case, the Magistrate shall inquire into or try together the complaint case and the case arising out of the police report as if both the cases were instituted on a police report."
8.Learned counsel appearing for the petitioner also relied on the decision of the Hon'ble Supreme Court in Pal @ Palla V. State of Uttar Pradesh reported in (2011)2 MLJ (Crl) 487 (SC), wherein the Hon'ble Supreme Court has held as follows:
"Although, it will appear from the above that under Section 210 Cr.P.C., the Magistrate may try the two cases arising out of a police report and a private complaint together, the same, contemplates a situation where having taken cognizance of an offence in respect of an accused in a complaint case, in a separate police investigation such a person is again made an accused, then the Magistrate may inquire into or try together the complaint case and the case arising out of the police report as if both the cases were instituted on a police report. That, however, is not the fact situation in the instant case, since the accused are different in the two separate proceedings and the situation has, in fact, arisen where prejudice in all possibility is likely to be caused in a signle trial where a person is both an accused and a witness in view of the two separate proceedings out of which the trial arises".
9.Learned counsel for the respondents also drew the attention of this Court to paragraph No.11 of the aforesaid Judgment, which reads as follows:
"11. The question, therefore, which arises for consideration in this appeal is whether a common trial can be held in respect of two cases, one on the basis of the charge-sheet filed by the police and the other on the basis of a protest petition which has been treated as a complaint having been committed to the Court of Sessions, although, none of the accused in the said two cases are common. In fact, as indicated hereinabove, the accused in one of the cases are the witnesses in the other and vice versa."
10. It is made clear that when the accused are not the same persons, common trial cannot be held. In the instant case, as contended by the learned counsel for the petitioner, both the cases in C.C.No.76 of 2009 and C.C.No.57 of 2010 are arising out of the same complaint given by the de facto complainant. The date of occurrence, time of occurrence and place of occurrence are one and the same and therefore, the witnesses are also same, hence, there is no need to treat any accused in one case as prosecution witness in the other case. Sub- Section (2) of Section 210 clearly stipulates that if a report is made by the investigating police officer under Section 173 Cr.P.C., and on such report cognizance of any offence is taken by the Magistrate against any person who is an accused in the complaint case, the Magistrate shall inquire into or try together the complaint case and the case arising out of the police report, as if both the cases were instituted on a police report.
11. The aforesaid provision of law is squarely applicable to the facts and circumstances of the case and further if both the cases are not tried together and the witnesses are examined separately in the cases, it would cause inconvenience to both parties, as the alleged occurrence is one and the same.
12. Learned Counsel for the respondents submitted that the prosecuting authority in one case is the State, being the complainant and the defacto- complainant in the other case is the complainant in other case, registered on private complainant. Sub-Section 2 of Section 210 Cr.P.C. would clearly contemplate the purpose of clubbing the cases, so as to avoid inconvenience to both the parties in facing trial. In so far as case and counter case are concerned, joint trial is not possible and hence, clubbing cases is also not possible, since accused in one case could be the prosecution witness in the other case.
13. In Chinnu Naicken vs. Rangasami (1983 Cri.L.J.494) this Court has held as follows:
"As the accused in both the cases were said to have committed the offences in the course of the same transaction, the cases were clubbed together for the purpose of trial and such a course was clearly permissible under Section 239 Cr.P.C."
14. In Perumal v. Chithanathan and Asokan v. Narayanan (1972 Mad L.J. (Crl) 680), this Court has held as follows:
"7. There is no dispute that the incident involved in S.C.Nos.59 and 60 of 1979 is one and the same. There is no doubt there are two new names found S.C.No.60 of 1979. It is permissible to hold a joint trial of the accused named in the police report and the accused name in the private complaint, amalgamating the two even though the accused in the police report may not all be the same as those in the complaint. It is better for the purpose of a proper appraisal if the two cases are clubbed together as the persons / accused are involved in the same offence arising in the course of the same transaction. The foundation for the charge is one and the same and it is only just that there should be one trial. Section 210 Cr.P.C. is a procedure beneficial to the accused as there need not be two separate trials of the same offence. In the instant case, the learned Additional Sessions Judge is justified in passing an order consolidating the two cases to try the accused at one trial as there is no prejudice caused to the accused. I see no reason to interfere with the order of the lower court and the petition stands dismissed."
15. In the light of the decisions of the Hon'ble Apex Court and this Court referred to and also considering the submissions made by both the learned counsel, I am of the view that when there is a case pending before the Magistrate based on a police report and another case based on the private complaint arising out of the same complaint, relating to the occurrence, considering the fact that the witnesses are one and the same and the allegations and the parties are one and the same, to meet the ends of justice, in view of Sub Section (2) of Section 210 Cr.P.C., the Court has to pass order to try both the cases, as if the said cases were instituted on a police report. In the aforesaid circumstances, it is clear that the order passed by the Court below is not in accordance with provisions of sub Section 2 of Section 210 Cr.P.C.
16. In the result, the criminal revision is allowed. Consequently, connected miscellaneous petition is also closed. The Court below is directed to dispose the cases, as contemplated under Section 210 (2) Cr.P.C., within four months from the date of receipt of a copy of this order, according to law, uninfluenced by the findings, if any by this Court, in this order.
am / tsvn To
1.The Judicial Magistrate, Aruppukkottai, Virudhunagar District.