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Judges : PADMANABHAN
MANI - Appellant
Versus
SWAMINATHAN - Respondent
Case No : Crl.A. No. 256, Crl.R.P. No. 179 of 1982
Decided On : 12/20/1985
Advocates Appeared :
N.K. Sreedharan; For Appellant M.N. Sukumaran Nayar; B. Raman Pillai; For Respondent
Clubbing of Cases - Criminal Procedure Code - S.326, S.447, S.324, S.506(2), S.34 of the Indian Penal Code - The court discussed the clubbing and consolidation of cases on a police challan and complaint case, the procedure for trial of warrant cases by magistrates, and the right of appeal against acquittal. The judgment emphasized the need for separate trials and judgments when the prosecution versions in the police challan and the complaint case are materially different, contradictory, and mutually exclusive.
Fact of the Case:
The appellant, who was attacked and seriously injured, filed a private complaint and a police charge against three accused. The cases were clubbed and tried together, resulting in the acquittal of all accused. The appellant appealed against the acquittal on the private complaint and filed a revision against the acquittal on the police charge.
Finding of the Court:
The court found that the clubbing of the cases and the procedure adopted by the magistrate were illegal. It set aside the acquittal and ordered retrial and disposal of the cases separately, emphasizing the need for separate trials and judgments.
Issues: The issues included the legality of clubbing and consolidating cases, the procedure for trial of warrant cases by magistrates, and the right of appeal against acquittal.
Ratio Decidendi: The court held that when the prosecution versions in the police challan and the complaint case are materially different, contradictory, and mutually exclusive, separate trials and judgments are necessary. It emphasized the need for following the prescribed procedures for trial of warrant cases by magistrates and affirmed the right of appeal against acquittal.
Final Decision: The appeal and the revision were allowed, the order of acquittal was set aside, and the cases were sent back for retrial and disposal. The order of clubbing the cases together was also set aside, and the court emphasized the need for separate trials and judgments.
Key Points: - The judgment emphasizes the need for separate trials and judgments when prosecution versions in police challan and private complaint are materially different, contradictory, and mutually exclusive. (!) (!) - It holds that clubbing the two cases together or treating them as instituted on police report is illegal; cases should be tried separately with evidence recorded in each case in sequence and two separate judgments. (!) (!) - It discusses that the proper procedure is to retry and dispose of the cases separately, and that the right of appeal against acquittal remains, with potential for appeal against acquittal in the appropriate case. (!) (!) - The decision sets aside the acquittals and remands for retrial, invalidating the clubbing order and clarifying that cases should not be consolidated. (!) - It references that the trial must follow the procedure for warrant cases and distinguish between proceedings instituted on police report and otherwise, without improperly invoking section 210 and related provisions. (!) (!) - The judgment confirms that the two cases may be heard separately but be disposed of in a coordinated manner with two separate judgments. (!) - It notes the court’s stance on the responsibility of the State and the proper pursuit of appeals against acquittal. (!) (!)
1. In relation to an incident that took place at 6 a. m. on 13-11-1976 there was a police report and a private complaint filed by pw.1 who is the appellant and revision petitioner. The allegation is that while carrying milk to the tea shop of pw. 2 pw.1 was attacked with spade handles on the way on account of previous enmity resulting in serious injuries. In the private complaint which was C. C. 250 of 1977 on the file of the Additional Judicial First Class Magistrate, Palghat there were three accused. Accused 1 and 2 are brothers and third accused is their father. In the police charge which was C. C. 81 of 1977 of the same court there was only one accused who is the first accused in C. C. 250. C. C. 81 of 1977 was charge-sheeted for an offence punishable under S.326, of the Indian Penal Code and the private complaint was for offences punishable under S.447,324 and 506(2) read with S.34 of the Indian Penal Code. On the report of the A. P. P. under S.319 of the Code of Criminal Procedure C. C. No. 250 was clubbed with C.C. No. 81 and tried as a single case for an offence under S.326 of the Indian Penal Code against the three accused as if it was on a police report. After the trial started pw.1 moved the Court under S.302 Cr. P. C. for permission to engage a counsel to conduct the prosecution. Though the prayer was disallowed by the Magistrate, in Crl. R. P 146 of 1979 this Court allowed the prayer. Accordingly a counsel of the choice of pw. ! conducted the prosecution. The Magistrate ultimately acquitted all the accused. The appeal was filed by pw.1 against the acquittal on the private complaint and the revision against the acquittal on the police charge. Both the case were heard together.
2. The prosecution examined 14 witnesses and proved Exts. P-1 to P-18. Exts D-1 to D-4 are the defence documents. No defence witness was examined. pws. I to 3 are the occurrence witnesses. Among them pw. 1 is the injured. pw, 2 is the owner of the tea shop to which pw.1 was carrying milk and pw. 3 is a neighbour. pws. 8 and 11 are the medical witnesses. pws. 4 to 7 and 9 are mahazar witnesses. pws. 10 and 12 to 14 are police officers.
3. The counsel on behalf of pw.1 ventilated very strong protest against the attitude adopted by the investigating agency, the Magistrate and the State. There seems, to be much force in the contention that the investigation was not only shabby but mala fide also. The attitude of the State in not preferring an appeal against the acquittal has really to be deprecated. Though permission was given to pw.1 under S.302 Cr.P.C. to engage a counsel, the State cannot shirk responsibility. Even after permission the Assistant Public Prosecutor was also appearing as the judgment of the trial court shows. As the medical evidence shows pw.1 was brutally manhandled by somebody. He has practically become disabled and survived only by the grace of God. Every crime is considered to be an offence against society and State is considered to be the prosecutor in all crimes. More than the injured or the relations of the deceased the State should be the aggrieved party when offenders are not brought to justice. Simply because the injured also took interest in bringing the offenders to justice, the State will not be justified in washing its hands off and keeping aloof as a silent spectator. Such an attitude could only help offenders escaping from the clutches of law. It is worth probing how in this case the State has not chosen to file an appeal. I hope that this aspect will be duly considered. This aspect becomes more relevant from the way in which investigation was conducted and the circumstances which prompted pw.1 in having a lawyer of his choice to conduct the prosecution.
4. The way in which the Magistrate has appreciated the evidence for the purpose of acquitting the accused was also the subject of serious comments at the hands of the counsel. According to him pws. I to 3 were disbelieved on flimsy, trivial and irrelevant
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