APPUKUTTAN Vs. Z THOMAS ZAKARIA

JUDGEMENT

(1.) The petitioner in this petition, has sought for an order for setting aside the order passed in Crl. M.P. No. 2697 of 2012, dated 31.10.2012, by the Principal District and Sessions Judge, Kanyakumari at Nagercoil and also to withdraw C.C. No. 397 of 2010 from the file of the Judicial Magistrate No. II, Nagercoil and transfer the same to the file of the Chief Judicial Magistrate, Nagercoil to be tried along with S.C. No. 62 of 2011. The case of the petitioner is that both the cases (i.e. C.C. No. 397 of 2010 and S.C. No. 62 of 2011) arise out of the same property and the police have registered both the cases and split up the offences under various provisions of Indian Penal Code and that gives rise to cause for two cases, which can be tried together. The petitioner stated that no prejudice is going to be caused, if two cases are tried together.

(2.) In reply, the respondent counsel appearing for the respondents 1 to 5 has stated that S.C. No. 62 of 2011 pertains to the offence of 'trespass' and C.C. No. 397 of 2010 pertains to the offence of 'fabrication of documents'. One has no relation to another. That apart, in the issue pertaining to fabrication of documents, trial is yet to be commenced. So far as trespass is concerned, the trial has already commenced and for want of appearance of the accused, the matter is pending. It is further submitted that a non-bailable warrant has been issued by the trial court to the witness. If the witness namely Appukuttan appears, the proceedings will come to an end on the date of his appearance. He has further submitted that as long as the trial is not commenced, both the cases can be clubbed together. But here in one case, the trial is commenced and in another, it is a still-born child. Hence, both the cases cannot be tried together. He referred to paragraph No. 13 of the order of the learned Principal District and Sessions Judge, Kanykumari District at Nagercoil, wherein, it has been held as follows.