JOSEPH Vs. JOSEPH

JUDGEMENT

(1.) THE Sessions Judge has given two reasons for interfering with the order for clubbing the two cases passed by the Magistrate. THEy are: (1) For the application of S. 210 it is absolutely necessary that in the first instance there should be a private complaint before the Court during the pendency of which it is brought to the notice of the Court that Police investigation is pending in respect of the same offence. It is only after the filing of the Police report that the complaint in this case was filed. To such a situation S. 210 cannot be applied; and (2) THE offences in respect of which investigation was carried on by the Police are not identical with the offences alleged by the 2nd respondent in his private complaint. Unless they are identical, S. 210 will not have any application and an order for clubbing both the cases under s. 210 (2) is not permissible at all.

(2.) THE first of the above two reasons given by the learned Sessions Judge is based on a mistake of fact. THE private complaint was filed on 7-2-1978 and the Magistrate took cognizance of the same on 7-2-1978 itself. THE charge sheet though dated 30-1-1978 was filed in Court only on 31-3-1978 by the Police. So, it goes without saying that the private complaint was pending when the report was made to the Court by the Police after investigation. So, for the reason given by the Sessions Judge, clubbing of the two cases for trial cannot be denied.

(3.) IN the order impugned, reliance has been made by the learned Sessions Judge on Annama v. Chacko (1976 KLT 503 ). As has been rightly held by the learned judge, the Code (1973 Code) had no application to the two cases involved there because those cases were already pending at the time when the Code came into force. IN that case, all that has been said in the judgment about S. 210 can only be obiter dicta.