Judgment: 1. In relation to an incident that took place at 6.00 a.m. on 13.11.1976 there was a police report and a private complaint filed by P.W.1 who is the appellant and revision petitioner. The allegation is that while carrying milk to the tea shop of P.W.2, P.W.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.No.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.No.81 of 1977 of the same Court there was only one accused who is the first accused in C.C.No. 250 of 1977. C.C.No.81 of 1977 was charge-sheeted for an offence punishable under section 326 , of the Indian Penal Code and the private complaint was for offences punishable under sections 447 , 324 and 506(2) read with section 34 of the Indian Penal Code. On the report of the A.P.P. under section 319 of the Code of Criminal Procedure C.C.No. 250 of 1977 was clubbed with C.C.No.81 of 1977 and tried as a single case for an offence under section 326 of the Indian Penal Code against the three accused as if it was on a police report. After the trial started P.W.1 moved the Court under section 302, Criminal Procedure Code, for permission to engage a Counsel to conduct the prosecution. Though the prayer was disallowed by the Magistrate, in Crl.R.P.No.146 of 1979 this Court allowed the prayer. Accordingly a Counsel of the choice of P.W.1 conducted the prosecution. The Magistrate ultimately acquitted all the accused. The appeal was filed by P.W.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. P.Ws.1 to 3 are the occurrence witnesses. Among them P.W.1 is the injured. P.W.2 is the owner of the tea shoo to which P.W.1 was carrying milk and P.W.3 is a neighbour. P.Ws.8 and 11 are the medical witnesses. P.Ws.4 to 7 and 9 are mahazar witnesses. P.Ws.10 and 12 to 14 are police officers. 3. P.Ws.1 to 3 are the occurrence witnesses. Among them P.W.1 is the injured. P.W.2 is the owner of the tea shoo to which P.W.1 was carrying milk and P.W.3 is a neighbour. P.Ws.8 and 11 are the medical witnesses. P.Ws.4 to 7 and 9 are mahazar witnesses. P.Ws.10 and 12 to 14 are police officers. 3. The Counsel on behalf of P.W.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 malafide also. The attitude of the State in not preferring an appeal against the acquittal has really to be depricated. Though permission was given to P.W.1 under section 302, Criminal Procedure Code, 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 P.W.1 was brutally manhandled by some body. 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 hand 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 P.W.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 P.Ws.1 to 3 were disbelieved on flimsy, trivial and irrelevant grounds. 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 P.Ws.1 to 3 were disbelieved on flimsy, trivial and irrelevant grounds. In the way in which I am going to dispose of these cases I feel that it is better for me to avoid discussing those arguments and expressing my views on them, because such a course is likely to prejudice the Magistrate when disposing of the case again. Therefore, I am not at all considering the evidence or expressing any opinion on the appreciation of the evidence by the Magistrate. 5. In this case the incident was on 13.11.76. Though on the basis of the First Information Statement given by P.W.1 from the hospital Crime No.456 of 1976 was registered against the three accused for an offence under section 324 read with section 34 of the Indian Penal Code, after investigation charge was laid on 17.3.1977 only against the first accused for an offence under section 326, Indian Penal Code. It was taken to file as C.C.No. 81 of 1977 on 12.4.1977. P.W.1 was aggrieved by the investigation and final report. Therefore, he filed the private complaint against the three accused on 10.10.1977 and it was taken to file as C.C.No.250 of 1977 for offences under sections 447 , 324 and 506(2) read with section 34 of the Indian Penal Code. Except that the two cases related to the same incident there is practically not much in common between the allegations in the two. Probably the accusations in the two cases against the first accused are almost identical. Accused 2 and 3 in the complaint case are not at all accused in the police report and hence the police report does not contain any overt acts against them. Common intention and the offences under sections 447 and 506(2) of the Indian Penal Code are not there in the police report. Details of the incident are also not the same in both the cases. Common intention and the offences under sections 447 and 506(2) of the Indian Penal Code are not there in the police report. Details of the incident are also not the same in both the cases. In such a case the Supreme Court held in Harjinder Singh v. State of Punjab and others Harjinder Singh v. State of Punjab and others (1985) S.C.C. (Crl.) 93, that clubbing and consolidation of cases on a police challan and complaint case where the prosecution version in the police challan and the complaint case are materially different, contradictory and mutually exclusive is not permissible even under section 223 of the Code of Criminal Procedure. The Supreme Court has given the guidelines to be followed in such cases. The two cases should be tried together by the same Court but not consolidated. Evidence should be recorded in both the cases one after the other. After recording prosecution evidence in one case judgment should be withheld. Then evidence in the other case will have to be recorded. Thereafter both the cases should be simultaneously disposed of by two separate judgments taking care that the judgment in one case is not based on the evidence recorded in the other. The right guaranteed by Article 20(2) of the Constitution against double jeopardy and the protection under section 300 of the Code of Criminal Procedure will not be disturbed by such a procedure because if there is no punishment for the offence twice as a result of the prosecution both the provisions are not violated. 6. As I have earlier stated the Magistrate has clubbed the two cases together and tried as a single case for an offence under section 326 of the Indian Penal Code against the three accused as if it was on a police report. This is a case in which section 210 of the Code of Criminal Procedure is not applicable. In order to attract section 210(1) there must be a complaint case pending inquiry or trial. During the course of such inquiry or trial in the complaint case it must be made to appear to the 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. During the course of such inquiry or trial in the complaint case it must be made to appear to the 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. It is under these circumstances that the Magistrate has to stay the proceedings in the inquiry or trial and call for a report from the police officer conducting the investigation. What section 210(2) provides is that if a report is made by the investigating officer under section 173, Criminal Procedure Code, and the Magistrate takes cognizance of any offence against any person who is an accused in the complaint case, he will have to inquire or try together both the cases as if they were instituted on a police report. In the case in hand the police report was made and on that report cognizance was taken long before the [filing of the private complaint. The contingency contemplated under section 210(1) has not arisen in this case. Therefore the procedure provided under section 210(2) also did not arise. The complaint case was filed subsequently with materially different allegations and with two additional accused also. There is no question of investigation in the police case being in progress when inquiry or trial in the complaint case was going on. Therefore there is no question of calling for a report also. This is not a case where the procedure prescribed in section 210(2) is applicable. Such situations were considered in Satish Kumar v. The State Satish Kumar v. The State (1980) Crl.L.J. (N.O.C.) 25, Kartar Singh v. The State Kartar Singh v. The State (1981) Crl.L.J. (N.O.C.) 49 and Annamma v. Chacko and others Annamma v. Chacko and others (1976) K.L.T. 503. Some other decisions also were cited at the Bar, but they relate to offences exclusively triable by the Court of Session and committal proceedings in such cases and as such not relevant for our purpose. (1976) K.L.T. 503, was concerning cases to be tried under the old Code. 7. The learned Counsel for the respondents stated that the only course open to the Magistrate was to retain the identity of the two cases and to have joint trial as held in (1985) S.C.C. (Crl.) 93, which was considered by me earlier. (1976) K.L.T. 503, was concerning cases to be tried under the old Code. 7. The learned Counsel for the respondents stated that the only course open to the Magistrate was to retain the identity of the two cases and to have joint trial as held in (1985) S.C.C. (Crl.) 93, which was considered by me earlier. He further stated that the impermissible clubbing of the cases together under section 210(2) has occasioned serious prejudice to his clients. Now since all the accused stand acquitted no question of prejudice arises as it is. The question of prejudice will arise for consideration only if this Court proceeds to consider Crl.A.No.256 of 1982 on the merits and decides to convict them. In the criminal revision petition the maximum that could be done is to set aside the order of acquittal and remand the case on account of the bar that acquittal cannot be converted into conviction. Remand of the case for retrial was not at all opposed by the respondents. Appellant alone wanted the appeal to be heard on the merits in order to reverse the acquittal and convict the accused. 8. Chapter XIX of the Code of Criminal Procedure deals with trial of warrant cases by Magistrates. Separate procedures are prescribed for trial of warrant cases instituted on police report and cases instituted otherwise than on police report. In a warrant case instituted on police report, if charge is framed and the accused refused to plead or does not plead or claims to be tried or the Magistrate does not convict the accused under section 241 the Magistrate shall proceed to take all evidence produced in support of the prosecution. Then the accused will have to be called upon to enter their defence. But in warrant cases instituted otherwise than a police report the evidence of the prosecution will be recorded first. Charge will be framed only if the Magistrate considers that the evidence, if unrebutted, would warrant conviction. Otherwise the accused are entitled to be discharged without charge being framed. After framing charge the accused are having a further chance of cross-examining the prosecution witnesses. If the cases are clubbed together and tried as provided in section 210(2) as if they were instituted on police report, the procedure followed will be only that of warrant case instituted on police report. After framing charge the accused are having a further chance of cross-examining the prosecution witnesses. If the cases are clubbed together and tried as provided in section 210(2) as if they were instituted on police report, the procedure followed will be only that of warrant case instituted on police report. As I have earlier stated the question whether the denial of the procedural opportunities of a warrant case instituted otherwise than on police report has resulted or will result in prejudice could arise only if this Court proceeds to consider the appeal on the merits. 9. If the procedure adopted by the Magistrate is taken as correct the question will arise whether P.W.1 the appellant is entitled to file an appeal against acquittal. In fact such a question was raised also. This contention was sought to be answered on the basis of the decision in Govinda Menon v. Muhammed Unni Haji Govinda Menon v. Muhammed Unni Haji (1984) K.L.T. 964, which held that clubbing under section 210(2) is meant to provide statutorily the procedure for trial and not to divest the parties of their substantive rights of appeal or revision and the two cases do not lose their separate identity. For the same purpose the decisions in K.Samal v. State of Orissa K.Samal v. State of Orissa (1970) Crl.L.J. 869: (1970) L.W. (Crl.) 72: (1970) 1 S.C.R. 880 : A.I.R. 1970 S.C. 272, and Bhimappa v. Laxman Bhimappa v. Laxman (1970) Crl.L.J. 1132: (1971) 1 S.C.J. 160: (1971) MLJ. (Crl.) 108: (1971) 1 S.C.R. 1 : A.I.R. 1970 S.C. 1153, decided under the provisions of the old Code were also relied on. In the old Code there was no provision like section 210 of the new Code. I do not think that these aspects need be considered at all. Going by those decisions if it is treated that P.W.1 has the right of appeal it is only against the acquittal in the complaint case and not the police case. That will necessitate consideration of the question whether in appeal the acquittal of accused 2 and 3 has to be interfered with and in the revision whether the acquittal of the first accused will have to be set aside and the case remanded. In my opinion these aspects need not be considered at all. 10. The procedure adopted by the Magistrate is evidently illegal. In my opinion these aspects need not be considered at all. 10. The procedure adopted by the Magistrate is evidently illegal. It is not warranted by section 210 or section 223 or any other provisions in the Code. In the given circumstances the Magistrate could have adopted only the procedure laid down in (1985) S.C.C. (Crl.) 93, extracted by me earlier in the body of this judgment, subject to the procedural differences in both the cases. 11. Both the appeal and the revision are allowed and the order of acquittal is set aside. The case is sent back for retrial and disposal. The order of the Magistrate clubbing the two cases together and treating as if both cases were instituted on police report is also set aside. The two cases will be tried together but not consolidated. Evidence should be recorded in both cases separately on after the other. Both the cases will be simultaneously disposed of by two separate judgments taking care to see that the judgment in one case is not based on the evidence recorded in the other. Appeal and revision allowed.