VARKEY JOSEPH Vs. STATE

JUDGEMENT

(1.) The petitioner is one of 17 accused persons in P.E. No. 23 of 1124 on the file of the 1st Class Magistrate of Moovattupuzha. These accused were charged by the Police for various offences on the basis of information furnished by PW 1 in the case. After the charge was laid PW 1 put in a complaint before the Magistrate against 18 persons including the 17 already charge sheeted and alleged that they committed other offences also besides those covered by the Police charge. The Magistrate, after recording the statement of PW 1 ordered amalgamation of the complaint with P.E. 23 of 1124. When the case came up for evidence and the Public Prosecutor examined PW 1 in chief the Counsel engaged by PW 1 sought to examine him further on the basis of his complaint before the cross examination by the defence. The objection raised by the defence against this procedure was overruled by the Magistrate. Hence this revision petition.

(2.) There is no provision of law allowing or justifying the amalgamation of a Crown prosecution with a private complaint at the stage of preliminary enquiry. In cases charge sheeted by the Police or other authorised agent of the Government, the complainant is the State and not the private individual at whose instance the case was taken up. In such cases the Public Prosecutor alone is entitled to conduct the prosecution, though it is open to him to take instructions from the complainant or his Counsel whenever needed (Yohannan v. Oommen) 27 TLJ 713 .

(3.) In the present case, what the complainant PW 1 seeks is to supplement the Police charge by adding one more accused and alleging that certain other offences, besides those mentioned in the Police charge were also committed by the accused. It is open to the Magistrate to take up a separate case on the basis of the complaint and proceed with the enquiry. But the amalgamation of the complaint with P.E. 23 will create several difficulties. When the interests of the State and private parties are not the same, it is highly undesirable to allow the latter to interfere in prosecution under the charge of Public Prosecutors. When the prosecution is conducted by the Public Prosecutor, there is very little scope for private passions and prejudices to creep into the conduct of the case. When Police charge and private complaint are amalgamated into one case, prosecution will be under the charge of two sets of persons with several conflicting interests and inconsistent cases. This will be as much embarrassing to the prosecution as to the defence. It is extremely unfair to call upon the accused to answer two sets of charges in the same prosecution. It is held in Emperor v. Janke Gopal Koli AIR 1936 Bom. 35 that when there is an officer entitled to conduct the prosecution, it cannot be open to the Magistrate to give permission to some other person to conduct the prosecution, either, instead of, or along with him without his consent. Kartikram v. Emperor AIR 1937 Nag. 123 is another case in which a similar question came up for decision. Three persons were prosecuted for an offence under S.498 I.P.C., for enticing the wife of the complainant. The Trial Court acquitted one of the accused and convicted the other two. The appellate court upheld the conviction against one and acquitted the other. In the appeal before the Sessions Court, Crown was represented by the Public Prosecutor. The complainant took the matter in revision to the High Court and contended that as he had no notice of the appeal the decision of the Sessions Judge was illegal. Overruling this contention, the High Court held that when the Public Prosecutor appears on behalf of the Crown, it is undesirable to allow a complainant also to appear. The relevant portion of the judgment, applicable to the present case is as follows: