IMPORTANT POINTS
The private complaint as well as the police charge case arise out of the same occurrence, the private complaint contains additional allegations with regard to offences, which are offences in addition to those involved in the police charge case, in such cases, clubbing or consolidation is not permissible. Both the cases cannot be merged together for trying them as single case.

JUDGMENT :

Crl.Appeal No.407 of 2008 is filed against the common judgment dated 6.2.2008 in Session Case No.666 of 2005 and 668 of 2005. Crl.R.P.No.2702 of 2008 is filed against the judgment dated 6.2.2008 in Sessions Case No.667 of 2005. Sessions Case Nos.666 of 2005 and 668 of 2005 are the main cases and Sessions Case No.667 of 2005 is the counter case relating to a same incident. Since the Criminal Appeal and revision are arising out of a case and counter case, I think this appeal and revision can be disposed of by a common judgment.

2. Firstly I will consider Crl.Appeal No.407 of 2008, which arises from Sessions Case No.666 of 2005 and Sessions Case No.668 of 2005.

Crl.Appeal No.407 of 2008 : Sessions Case Nos.666 & 668 of 2005 :

The Sessions Case No.666 of 2005 is a private complaint filed by one Rehim, Son of Kunju Muhammed against four accused alleging offences punishable under Sections 120B, 201, 341, 326, 323 and 307 read with Section 34 IPC. Sessions Case No. 668 of 2005 was a case charge sheeted by the Sub Inspector of Police, Mattancherry Police Station in Crime No.233 of 2001 alleging offences punishable under Sections 326 and 323 read with Section 34 IPC. In the police charge case, there are only three accused. In the cause title of the impugned judgment, it is mentioned that, there are four accused in Sessions Case No.666 of 2005 and Sessions Case No.668 of 2005. Actually in Sessions Case No.666 of 2005, there are four accused and in Sessions Case No.668 of 2005, there are only three accused. In the cause title of the impugned judgment, Murukesh, Son of Balakrishnan is arrayed as fourth accused in Sessions Case No.668 of 2005. This is factually incorrect. There are only three accused in this case. Here is a case, where, there is a final report submitted by the police and a private complaint filed by the injured in the same incident. In the police charge case, there are three accused, whereas in the private complaint there are four accused. In the police charge case, the offences alleged are under Sections 326, 323 and 34 IPC, whereas in the private complaint, the offences alleged are under Sections 120B, 201, 341, 326, 323 and 307 read with Section 34 IPC.

3. Therefore, it is clear that in the police charge case, there are only three accused and in the private complaint, there are four accused. The incident is the same, but there are different accused in both the cases and the offences alleged are also different. The learned Sessions Judge tried both these cases together jointly. Both the cases are disposed of by a common judgment. It is clearly stated that, both the cases are tried together jointly.

4. The learned counsel for the appellant in Crl.Appeal No.407 of 2008 raised a preliminary objection. According to the counsel, the course adopted by the learned Sessions Judge is in total violation of Section 210(3) Cr.P.C. The learned Sessions Judge erred in clubbing these cases together, especially when the police report is silent about one of the accused in the complaint case. It is also stated that, the offences alleged in the police report case and in the private complaint are different, even though there are common offences alleged. The counsel for the first respondent supported the judgment and observed that, even though, both the cases were tried together, the learned Sessions Judge considered, all the contentions in both the cases separately and therefore, there is no illegality in disposing the case together. The learned Public Prosecutor also supported the case of the first respondent.

5. After hearing both sides, I think this appeal can be disposed, based on the preliminary point raised by the counsel for the appellant, without going through the merits of the case. Section 210 Cr.P.C. says about the procedure to be followed when there is a complaint case and police investigation in respect of the same offence. Section 210 of the Cr.P.C. is extracted herein below :

“210. Procedure to be followed when there is a