REJI Vs. STATE OF KERALA

JUDGEMENT

(1.) THE petitioners who are accused Nos. 4, 5,7, 10 and 38 in s. C. 187/99 pending before the Addl. Sessions Court , Kottayam filed this petition for staying the above proceedings till the final disposal of Crl. A. 418/2000 pending before the Supreme Court.

(2.) S. C. 187/99 is popularly known as the Suryanelli rape case. It was registered as Crime 6/96 on 17. 1. 1996 on the basis of the F. I. Statement given by the father of the girl for woman missing. The girl was a boarding student in the Little Flower Girls High School, Nallathanni. She was missing from 16. 1. 1996 onwards and the F. I. Statement was given on 17. 1. 1996. On 26. 2. 1996 the girl returned home and narrated the story of her being raped by various persons at various places. The police investigated the case and filed chargesheet against 42 persons including the petitioners. One of the accused in the above case died and two absconded and the remaining 39 were facing trial. They were alleged to have committed offences under S. 120b, 363, 365, 366a, 368, 372, 373, 376, 376 (g) 392 and 109 r/w. 34 IPC. For the trial of the above case a special court was constituted. 97 witnesses were examined and various documents were proved. The prosecution evidence was closed and the accused were being questioned under S. 313 Cr. P. C.

(3.) THE main argument advanced by the learned counsel for the petitioners was that both the police charge and the private complaint arise in the course of the same transaction and as such both the cases are to be consolidated and there should be a single trial. It was further argued that c. P. 21/99 pending before the Magistrate's Court also has to be committed and both the cases are to be clubbed or consolidated and there should be a single trial of both the cases. According to the learned counsel for the petitioners the prosecutrix had been raped by a number of persons at different places and she had been raped by different persons at the Guest House, Kumali and the accused in the private complaint also was one among them who raped the prosecutrix on a particular day ie. on 19. 6. 1996. It was further argued that the girl had been raped at the same place by other persons prior to 19. 6. 1996 as well as thereafter, and the offence alleged to have been committed by Kurian also in the course of the same transaction and thereby both the cases are to be consolidated and jointly tried in accordance with S. 223 Cr. P. C. He was placing reliance on a Full Bench decision of this court in Kesavan Natesan v. Madhavan peethambaran (1984 KLN 36 ). That was a case where police laid a charge against one person for the commission of the offence under S. 302 IPC and the Magistrate committed the case to the Sessions court. THEreafter a private complaint was filed against two persons viz. the accused in the police charge and another person alleging the commission of offence under S. 302 and 323 r/w 114 IPC. THE magistrate committed the above case also to the Sessions Court. THE Sessions judge clubbed both cases and a single trial was held. THE procedure adopted by the Magistrate committing both the cases was challenged before this Court. THE main question raised before this court was whether the Magistrate can take cognizance of the private complaint and commit the case as he had already taken cognizance of the same offence and had committed the case before the Sessions court. THEre it was held that where the commission of the offence was again brought to his notice by another agency or person with a contention that the offence involves certain more acts and more persons than as alleged in the case originally brought to him, it is his duty to look into those allegations and decide if he is to issue process and conduct an enquiry or trial, as the case may be. Further it was held that the procedure. .