ALI HAJI Vs. STATE OF KERALA

JUDGEMENT

(1.) Petitioner is the defacto complainant in C.C. No. 472/99 on the file of the Judicial First Class Magistrate's Court, Malappuram. According to the petitioner, while the F.I.R. was lodged, the Sub Inspector of Police, Kottakkal incorporated only S.143, 147, 323 and 324 I.P.C. read with S.149 thereof, without incorporating S.326 IPC, though there was specific case of loss of tooth and head injuries stated in the F.I. Statement. However, after due investigation, the Sub Inspector of Police filed a refer report. Aggrieved by the same, the petitioner, who was the defacto complainant, approached the District Superintendent of Police and filed a complaint and consequently, the Circle Inspector of Police, Tirur investigated into the matter and filed a final report for offences under S.143,147,323, 324 & 326 I.P.C. read with S.149 thereof. But, however, there was no reference in the final report of offence under S.379 I.P.C, despite specific allegation of theft of Rs. 60,000/- from the defacto complainant.

(2.) It is vehemently contended before me by the learned counsel for the petitioner that in as much as the matter complained of in Crl. M.P. No. 1898/01 is in relation to the same occurrence involved in C.C. No. 472/99 and against the same accused, but in relation to an additional offence under S.379 I.P.C., of which, there was statement given before the police on the basis of which the crime, which culminated in C.C. No. 472/99, was registered, it was incumbent on the Magistrate to stay the final disposal of C.C. No. 472/99 so as not to disable the petitioner in having the private complaint also prosecuted upto its culmination.

(3.) Learned counsel for the petitioner placed reliance on the decision of this Court in Mani v. Swaminathan, 1986 KHC 50 : 1986 KLT 170. On the other hand, the learned Public Prosecutor submits that the procedure prescribed by S.210 of the Cr.P.C. be followed in the instant case. The decision of this Court, which has been cited by the learned counsel for the petitioner, makes also reference to the decision of the Apex Court in Harjinder Singh v. State of Punjab, 1985 SCC (Crl.) 93, wherein the Apex Court has given guidelines to be followed in cases of such nature. It provides that evidence should be recorded in both the cases one after the other; that after recording prosecution evidence in one case, judgment should be withheld; that then evidence in the other case will have to be recorded and that thereafter both the cases should be simultaneously disposed of by two separate judgments, taking care that the judgment in one case is not based on the evidence recorded in the other, so that the right guaranteed under Art.20(2) of the Constitution of India against double jeopardy and the protection under S.300 of the Cr.P.C. will not be affected. I am of the view that the direction so issued by the Apex Court has to be followed in the instant case, as the occurrence in the case, charge sheeted by the police and in the private complaint are the same and the accused are also the same, though there is difference that in one the offence under S.379 IPC is not incorporated despite specific allegation in the F.I. Statement.