K. MOIDOTTY Vs. USMAN

JUDGEMENT

(1.) The question under challenge in this case is whether the conducting of 'case and counter case' by the same Asst. Public Prosecutor amounts to an illegality, when both cases arise out of police charge sheet? This revision petition is preferred against the judgment in C.C.No.369/1998 of the Judicial First Class Magistrate, Malappuram by the defacto complainant. The accused was charge sheeted by the Judicial First Class Magistrate for having committed an offence punishable under Section 326 IPC. The charge against the accused is that on 19.7.1998 at about 9.45 p.m, while PW1 was proceeding to his room in the lodge at Parambilangadi, accused voluntarily caused grievous hurt to him by beating with a torch on his left leg and left hand as a result, he sustained serious injuries on his elbow and tibia, thereby committed the offence. Kottakkal Police registered a Crime and after investigation laid charge before Judicial First Class Magistrate, Malappuram. During trial, prosecution examined PW1 to PW11 and marked Exts.P1 to P6. MO1 was admitted in evidence. The incriminating circumstances brought out in evidence were denied by the accused, while questioning him. He did not adduce any defence evidence and the learned Magistrate Court acquitted him. Being aggrieved by that, he preferred this revision petition.

(2.) Mr.C.Khalid, the learned counsel appearing for the revision petitioner submitted that there was serious illegality committed by the trial Court while disposing C.C. 369/98 and its counter case C.C.No.368/1999 and the procedure provided for disposing the case and counter case was not followed and he relied the decision reported in Re Boya Gajji Pedda Venkatanna alias Bodenna and others (AIR 1954 Madras 15) (1952) 1 MLJ 244]. Both cases were conducted by the same prosecutor, which amounts to an illegality. Hence, the revisional jurisdiction may be invoked to rectify that error.

(3.) Sri. P. Venugopal, the learned counsel appearing for the 1st respondent opposed the above argument and contended that there is no illegality in conducting case and counter case by the same Prosecutor. It rarely happens that both cases arise out of police charge sheet. The facts and circumstances in this case show that the incident happened at different places at different time, hence both cases were treated as two independent cases.