Dismissed

Baby Mathew v. State of Kerala

Kerala HC7 Jun 2019Crl.MC/2946/2015

Case brief

AI extract

What is this about?

Crl.MC. challenging conviction in a private complaint case where two offenses were registered for the same incident. Court held no abuse of process as Section 210 Cr.P.C. stay did not arise and dismissed petition, directing Magistrate to follow procedure in Mani v. Swaminathan.

What did the court decide?

Petition dismissed; Magistrate directed to follow procedure of trying both cases simultaneously but separately.

Baby Mathew Vs State of Kerala — Civil Procedure and Limitation | Kerala HC (2019)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V

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FRIDAY, THE 07TH DAY OF JUNE 2019 / 17TH JYAISHTA, 1941

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Crl.MC.No. 2946 of 2015

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CC 34/2015 of JUDICIAL MAGISTRATE OF FIRST CLASS, ERATTUPETTA

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CC 100/2015 of JUDICIAL MAGISTRATE OF FIRST CLASS, ERATTUPETTA CRIME NO. 775/2014 OF ERATTUPETTA POLICE STATION, KOTTAYAM

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PETITIONERS/ACCUSED 1 TO 3:

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1 BABY MATHEW, AGED 44 YEARS, S/O.MATHEW, MUTHUPLAKKAL HOUSE, CHENNADU KARA, POONJAR VILLAGE, KOTTAYAM DISTRICT.

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2 ALAN BABY, AGED 21 YEARS, S/O.BABY MATHEW, MUTHUPLAKKAL HOUSE, CHENNADU KARA, POONJAR VILLAGE, KOTTAYAM DISTRICT.

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3 ARUN SEBASTIAN, AGED 21 YEARS, S/O.SEBASTIAN, PURAYDAM HOUSE, NEAR BSNL OFFICE, KOTTAMURI KARA, THRIKKODITHANAM VILLAGE, KOTAYAM DISTRICT.

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BY ADVS. SRI.K.RAMAKUMAR (SR.) SMT.AMMU CHARLES SMT.ASHA BABU SMT.JINNU SARA GEORGE SRI.C.DINESH SRI.G.RENJITH SRI.S.M.PRASANTH

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RESPONDENTS/STATE & COMPLAINANT:

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1 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031.

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2 THE SUB INSPECTOR OF POLICE, ERATTUPETTA POLICE STATION, ERATTUPETTA, KOTTAYAM DISTRICT.

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Crl.MC.No. 2946 of 2015

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3 MR.P.F.JOSEPH @ JOSEPH FRANCIS, AGED 45 YEARS, SON OF FRANCIS PORIYATH HOUSE, CHEMMALAMATTAM P.O., ERATTUPETTAH, KOTTAYAM DISTRICT.

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R1 & R2 BY SRI.AJITH MURALI, PUBLIC PROSECUTOR

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THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 07.06.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Crl.MC.No. 2946 of 2015 3

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ORDER

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The petitioners herein are the accused in C.C.No.100 of 2015 on the file of the Judicial Magistrate of the First Class, Erattupetta.

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The aforesaid case has been charge sheeted by the Police for offences under Sections 365, 342, 323 and 506(i) read with Section 34 of the IPC.

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The prosecution allegation is that on 17.06.2014 at 6 pm., the de facto complainant was kidnapped by the accused while he was standing in front of a medical shop. He was taken in a car to the residential home of the 1^st accused and was illegally confined there till 7.30 pm on 18.06.2014. It is also alleged that he was brutally assaulted by the accused while being confined there. Crime No.775 of 2014 was registered on 22.06.2014 under Sections 365, 342, 323, 506 (1) r/w Section 34 of the IPC. The investigation was conducted by the Sub Inspector of Police, Erattupetta and the final report was laid on 30.12.2014. As many as five persons were arrayed as the accused in the said case.

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It appears that the de facto complaint was produced before the learned Magistrate on 18.06.2014 and based on his statement and that of his witness, the learned Magistrate proceeded

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Crl.MC.No. 2946 of 2015 4

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to take cognizance and the case was numbered as CC. No.34 of 2015. The 1^st petitioner herein is the sole accused. From AnnexureC, it appears that cognizance was taken on 04.02.2015, much after the submission of the final report in Crime No.775 of 2014.

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Sri. K. Ramakumar, the learned Senior Counsel appearing

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for the petitioners, submitted that two crimes have been registered in respect of the very same incident and hence, the proceeding as against the petitioners is an abuse of process. The learned Senior Counsel would further submit that the failure to follow the procedure stipulated in Section 210 of the Cr.P.C would render the entire procedure illegal.

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Per contra, it is submitted by the learned Public Prosecutor that the contention that two crimes have been registered in respect of the very same incident is an incorrect submission. CC.No.100 of 2015 is on the basis of a police report and CC.No.34 of 2015 on the strength of a private complaint. It is also submitted that the filing of the private complaint by the de facto complaint was never brought to the notice of the investigating officer.

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I have considered the submissions advanced. Only in those cases wherein, during the course of such inquiry or trial in the

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Crl.MC.No. 2946 of 2015

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complaint case it is made to appear to the learned Magistrate that an investigation by the police is in progress in relation to the offence which is the subject-matter of the inquiry or trial held by him in the complaint case that the learned Magistrate has to stay the proceedings in the inquiry or trial and call for a report from the police officer conducting the investigation. The contingency contemplated under Section 210(1) has not arisen in this case. Even otherwise, non-compliance of the provisions of Section 210 of the Cr.P.C. is not fatal to the prosecution unless, error, omission or irregularity has resulted in failure of justice. (See Dilawar Singh v. State of Delhi (AIR 2007 SC 3234).

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As has been held by this Court in Mani v. Swaminathan (1986 KLT 170), the learned Magistrate has to follow the procedure as laid down by the Apex Court in Harjinder Singh v. State of Punjab and Others [(1985) SCC Crl 93]. The cases are to be tried together by the same court, but not consolidated. The evidence should be recorded in both cases, one after the other. After recording prosecution evidence in one case, judgment should be withheld. The evidence in the other case will have to be recorded. Thereafter, both the cases should be simultaneously disposed of by

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Crl.MC.No. 2946 of 2015 6

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two separate judgments taking into account that the judgment in one case is not based on the evidence recorded in the other. The learned Magistrate will have to follow the aforesaid procedure.

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In view of the above, I find no reason to quash the proceedings. The learned Magistrate shall follow the procedure laid down in Mani (supra) and conclude the same.

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With the above directions, this petition is disposed of.

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Sd/-

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RAJA VIJAYARAGHAVAN V., JUDGE

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DSV/11.6.19

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Crl.MC.No. 2946 of 2015

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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ANNEXURE A TRUE COPY OF FIRST INFORMATION REPORT NO.775/2014 ON THE FILE OF THE JUDICIAL 1ST CLASS MAGISTRATE'S COURT, ERATTUPETTAH.

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ANNEXURE B TRUE COPY OF FINAL REPORT IN CC. NO.100/2015 ON THE FILE OF THE JUDICIAL 1ST CLASS MAGISTRATE COURT, ERATTUPETTAH

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ANNEXURE C TRUE COPY OF ORDER DT. 4/2/2015 IN CMP NO.1707/2014 ON THE FILE OF THE JUDICIAL 1ST CLASS MAGISTRATE'S COURT, ERATTUPETTAH.

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ANNEXURE-D TRUE COPY OF THE C.M.P. NO.1707 OF 2014 DATED 18.06.2014 FILED BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT, ERATTUPETTA.

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RESPONDENT'S/S EXHIBITS:

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NIL

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//TRUE COPY//

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P.A.TO JUDGE

Baby Mathew v. State of Kerala

Case brief

What is this about?

What did the court decide?

Baby Mathew v. State of Kerala

Case brief

What is this about?

What did the court decide?

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