VALLIKKADAN MAYINKUTTY, Vs. THE STATE OF KERALA AND

JUDGEMENT

(1.) THE petitioner herein is the accused in S.T. No. 4379/2003 on the file of the Judicial First Class Magistrate, Malappuram which was taken into the file based on a private complaint by the 2nd respondent herein. To contend that the discontinuance of the said proceedings pursuant to Annexure -B complaint will result in abuse of process of the court, the petitioner has raised several legal contentions which in their very nature invite serious consideration by this Court. The first petitioner herein was the de facto complainant in crime No. 124/2000 of Vengara Police Station registered under Sections 447 and 324 IPC against the 2nd respondent herein. Annexure -A is the F.I.R. in the said crime. It would reveal that it is registered based on an incident which had taken place on 28.6.2000. After conducting investigation, a final report in the said crime was filed before the Judicial First Class Magistrate, Malappuram and the said court had taken its cognizance and numbered the case as C.C. No. 356/2000. Long later, when the said case was posted for trial and the evidence of the main witnesses were over, the 2nd respondent herein, who was the accused in C.C. No. 356/2000, filed Annexure -B complaint against the petitioners herein alleging commission of offences punishable under Sections 441, 425, 427 and 447 read with Section 34 IPC. Annexure -B private complaint was filed on 6.11.2002. However, the 2nd respondent did not take any earnest efforts to pursue with the same. Subsequently, the learned Magistrate has taken cognizance on Annexure -B complaint and numbered it as S.T. No. 4379/2003 only on 4.7.2003 which is after a period of more than three years. It is also pertinent to note that the said case was evidently, taken up for summary trial. The petitioners challenge Annexure -B and the continuance of proceedings based on the same on various legal and factual grounds. Though notice was served on the 2nd respondent herein, he did not enter appearance in this proceedings.

(2.) IT is a fact that the 2nd respondent/de facto complainant in S.T. No. 4379/2003, who is the accused in C.C. No. 356/2000, wherein the first petitioner herein is the de facto complainant, allowed the proceedings in the latter case to go on against him without filing any proper petition for a joint trial, and ultimately, C.C. No. 356/2000 culminated in Annexure -C judgment. As per the same, the 2nd respondent herein was found guilty for offence punishable under Section 447 IPC and was sentenced to undergo rigorous imprisonment for six months for the offence punishable under Section 324 IPC. Though the said judgment was taken up in appeal, the conviction and sentence against the 2nd respondent herein was confirmed by the Sessions court. Annexure -C would reveal that the trial court had formulated whether the accused voluntarily caused hurt on CWs 1 and 2 with dangerous weapon as alleged and whether the accused is guilty for the offence and if so, what is the sentence or order, as points for consideration in C.C. No. 356/2000. After considering the documentary and oral evidence adduced in the case, the trial court, vide Annexure -C judgment, found that the accused (2nd respondent herein) had caused hurt to PW 1 with MO1, which is a dangerous weapon. It was considering the said fact that the accused (2nd respondent herein) had caused hurt to PWs 1 and 2 (petitioners 1 and 2 herein) with a dangerous weapon, he was convicted and sentenced to undergo the punishment mentioned earlier. It is to be noted that Annexure -C judgment is dated 13.6.2003. Though Annexure -B private complaint was filed as early as 6.11.2002, the second accused herein, who was then facing trial in C.C. No. 356/2000, did not take any prompt and appropriate steps by filing a proper application. Admittedly, cognizance on Annexure -B private complaint was taken only on 4.7.2003 which is after the pronouncement of Annexure -C judgment. That apart, the conviction and sentence made against the 2nd respondent in Annexure -C was confirmed in appeal by the Sessions court. It is true that on appropriate action taken by the 2nd respondent at the appropriate time, as is expected to be taken in situation of cross -cases, C.C. No. 356/2000 and S.T. No. 4379/2003 could have been and would have been tried together as case and counter case. As obvious from Annexure -B complaint, the complaint of the 2nd respondent herein is that on account of the action on the part of the accused/petitioners herein he had suffered a loss of about Rs. 5,000/ -. Annexure -B would reveal that, according to him, the alleged incident occurred on 27.6.2000 at about 5 pm. Going by Annexure -B complaint itself, the date of occurrence of the incident is 27.6.2000 at about 5 pm and the cognizance thereof was taken only on 4.7.2003. The contention of the petitioners is that in respect of the same incident, the 2nd respondent herein was arrayed as an accused in crime No. 124/2000 of Vengara police station and by Annexure -C judgment he was convicted and sentenced to undergo rigorous imprisonment for six months. However, a close scrutiny on Annexure -B complaint and Annexure -C judgment would reveal that the date of occurrence of the alleged incident as per Annexure -B is 27.6.2000 at about 5 pm whereas the 2nd respondent was found guilty and convicted and sentenced in respect of an incident occurred on 28.6.2000 at about 6.30 pm. Therefore, without proper materials on record, prima facie, it will not be possible to enter into a conclusion that the incidents referred to in Annexure -B complaint and Annexure -C judgment are one and the same. Therefore, I am unable to uphold of the contention of the petitioners that by virtue of Annexure -C judgment the proceedings in Annexure -B complaint are liable to be interfered with. At the same time, it is true that, the 2nd respondent who filed Annexure -B complaint long later to the institution of the proceedings based on crime No. 124/2000, cannot seek for a joint trial of C.C. No. 356/2000 and S.T. No. 4379/2003 as case and counter case. How is it possible for the trial court to retrieve the entire steps and to reach the position to try jointly the said cases as case and counter case? As stated earlier, the second accused himself allowed the trial in C.C. No. 356/2000 to proceed further and it culminated in his conviction and sentence and further the said conviction and sentence, as per Annexure -C, was confirmed in appeal by the Sessions court. Therefore, any consideration of C.C. No. 356/2000 by the trial court now will be as good as sitting over the judgment in appeal of the Sessions court in C.C. No. 356/2000 for which the trial court is legally incompetent. Therefore, there is absolutely no question of joint trial of C.C. No. 356/2000 and S.T. No. 4379/2003 now. Moreover, C.C. No. 356/2000 seems to have attained finality and it is not clear as to whether the judgment in appeal preferred against C.C. No. 356/2000 was taken up further by the 2nd respondent. As stated earlier, despite the receipt of notice, he did not appear in these proceedings. Therefore, no relevant information is available in this regard. Hence, this Court can only hold that considering the situation as borne out from records it will not, now, be possible for a joint trial of C.C. No. 356/2000 and S.T. No. 4379/2003.

(3.) SECTION 468(1) of the Code of Criminal Procedure reads thus: