The statutory procedure for joint trial under S. 210 does not divest the parties of their substantive rights of appeal or revision against the order passed after the conclusion of the trial or enquiry.

Scope of the remedy that is available to a party against a combined order, after a joint trial as contemplated under S. 210, Criminal P.C. arises for determination.

2. A police complaint, C.C. No. 23/78 was made by the Circle Inspector of Police, Kunnamkulam, against three persons while there was a private complaint C.C. No. 84/77 in respect of the very same offence, but against four persons. The two cases were clubbed together as provided under S. 210 of the Code and all the accused were acquitted.

3. The private complainant happened to the P.W. 1 in the police complaint. He filed a revision before the Sessions Court, Trichur, for setting aside the acquittal in the police case.

4. The lower court found that the complainant had a right of appeal even in respect of the police complaint as both cases were disposed of by a common judgment and under S. 210 both the cases should be deemed to have been instituted on a police report.

5. Section 210 provides the procedure to be followed when there is a complaint case and a police investigation in respect of the same offence and provides in sub-clause (2) thus :-

"If a report is made by the investigating police officer under S. 173 and on such report cognizance of any offence is taken by the Magistrate against any person who is an accused in the complaint case, the Magistrate shall inquire into or try together the complaint case and the case arising out of the police report as if both the cases were instituted on a police report."

6. The procedure prescribed under S. 210, therefore, relates to the enquiry or trial of the two cases, one instituted by a private complainant and the other based on a police report and the statutory fiction that both cases should be deemed to be instituted as if they were instituted on a police report is intended to enable a clubbing of the two cases and a joint enquiry or trial. It is meant to provide statutorily the procedure for trial and not to divest the parties of their substantive rights of appeal or revision against the order passed after the conclusion of the trial or enquiry. The two cases do not lose their separate identity. Thus in cases where complaint case and the case arising out of police investigation in respect of the same offence are tried together, and the accused are acquitted, the State alone can file an appeal from the acquittal in the case on the police report. P.W. 1 the de facto complainant can have no right of appeal; for none is provided under the Code and his remedy can only be to file a revision. As far as the private complaint is concerned, disposed of by the same judgment, the complainant aggrieved by the acquittal, will have his remedy of filing an appeal subject, of course, to leave under S. 378 of the Code. It cannot be said that there is no right of appeal merely because he has to obtain leave of court before filing the appeal; leave to appeal is only another procedural hurdle (vide Krishanlal Oberio v. Corpn. of Cochin 1979 Ker LT 75 : (1979 Cri LJ NOC 117) and E.S.I. Corporation v. Ramanarayanan 1980 Ker LT 772).

7. I am fortified in view of two decisions of the Supreme Court. In Khetra Basi v. Orissa State AIR 1970 SC 272 : (1970 Cri LJ 369), the Supreme Court was considering about the right of appeal where two cases were jointly tried under the old Code, which was even then permissible in spite of the absence of S. 210 now inserted for the first time in the new Code of 1973. The Supreme Court observed thus :-

"There were two separate cases of which cognizance was taken separately. One was started on the basis of a police report while the other was on the complaint of Jagabandhu Behera. As the accused in both the cases were said to have committed the offences in the course of the same transaction, the cases were clubbed together for the purpose of trial and such a course was clearly permissible under S. 239, Cr.P.C. That did not however alter the nature of the cases so as to affect their appealability under