PREETHI THOMAS Vs. P A THOMAS

JUDGEMENT

(1.) PETITIONER alleged that accused No.1, making use of a forged power of attorney as if it is executed by him transferred properties belonging to his relatives and thereby committed various offences. Since there were more than one transaction based on the allegedly forged power of attorney the police registered two cases and submitted final reports in those cases. Based on the final reports, learned Judicial First Class Magistrate-I, Ernakulam took cognizance and filed C.C.Nos.3418 of 2005 and 4190 of 2006. In C.C.No.3418 of 2005 offences punishable under Secs.419, 420, 465, 468 and 201 r/w Sec.34 of the Indian Penal Code (for short, "the IPC") are involved. In C.C.No.4190 of 2006 offences punishable under Secs.420, 465, 468, 201 r/w Sec.34 of the IPC are involved. Respondent Nos.1, 2 and 5 are the accused in those cases. Dissatisfied with the manner in which police investigated and chargesheeted those cases, petitioner filed a private complaint and it was taken on file as C.C.No.1069 of 2009 against 12 accused including the accused in the police cases. Of them, one expired and the case against accused No.2 was quashed as per the order of this court in Crl.M.C.No.48 of 2010. Accused Nos.3 and 4 in C.C.No.1069 of 2009 being public servants, summons was not issued to them. In C.C.No.1069 of 2009 offences involved are under Secs.109, 120, 120B, 201, 414, 423, 424, 427, 465, 467, 468, 471, 472, 477 and 506 of the IPC. While so, petitioner filed C.M.P.No.1410 of 2010 before the learned Magistrate to order joint trial of the police cases with the complaint case invoking Sec.210 of the Code of Criminal Procedure (for short, "the Code"). That application was dismissed by Annexure-A2, order dated August 3, 2010 holding that the complaint case has to be tried separately. That order is under challenge. Learned counsel submitted that observations and findings made by the learned Magistrate in the impugned order are not correct, these cases are not mutually exclusive or destructive, nor materially different so that there could be no joint trial. According to the learned counsel sub section (2) of Sec.210 of the Code has to be read disjunctively from sub section (1). Learned counsel submitted that if all the cases are not jointly tried, evidence which some of the accused in C.C.No.1069 of 2009 (private complaint) may give as prosecution witness in the police case cannot be used by petitioner in view of Sec.132 of the Evidence Act. It is also pointed out by learned counsel that after examining those persons as witnesses in the prosecution cases, there is no point in proceeding against them as accused in C.C.No.1069 of 2009.

(2.) SEC.210(1) of the Code obviously has no application since that provision applies only in cases where in a case instituted otherwise than on a police report (ie. a complaint case), it is made to appear to the Magistrate during the course of the inquiry or trial (of the complaint case), that an investigation by the police is in progress in relation to the offence which is the subject matter of inquiry or trial in the complaint case, the Magistrate shall stay the proceedings of such inquiry or trial and call for a report on the matter from the police officer conducting investigation. Argument is that sub section (2) of SEC.210 of the Code has to be read independently from sub section (1). I am afraid I cannot give my assent to that argument. Sub section (2) of SEC.210 relates to the procedure to be followed in the case of trial of cases falling under subsec. (1) of SEC.210 of the Code. Sub section (2) has no application to the factual situation emerging in the case.