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2000 DIGILAW 308 (KER)

Reji v. State of Kerala

2000-06-19

R.RAJENDRA BABU

body2000
Judgment :- R. Rajendra Babu, J. The petitioners who are accused Nos. 4, 5,7, 10 and 38 in S.C.187/99 pending before the Addl. Sessions Court, Kottayam filed this petition for staying the above proceedings till the final disposal of Crl. A. 418/2000 pending before the Supreme Court. 2. S.C.187/99 is popularly known as the Suryanelli rape case. It was registered as Crime 6/96 on 17.1.1996 on the basis of the F.I. Statement given by the father of the girl for woman missing. The girl was a boarding student in the Little Flower Girls High School, Nallathanni. She was missing from 16.1.1996 onwards and the F.I. Statement was given on 17.1.1996. On 26.2.1996 the girl returned home and narrated the story of her being raped by various persons at various places. The police investigated the case and filed chargesheet against 42 persons including the petitioners. One of the accused in the above case died and two absconded and the remaining 39 were facing trial. They were alleged to have committed offences under S.120B, 363, 365, 366A, 368, 372, 373, 376, 376(g) 392 and 109 r/w. 34 IPC. For the trial of the above case a special court was constituted. 97 witnesses were examined and various documents were proved. The prosecution evidence was closed and the accused were being questioned under S.313 Cr. P.C. 3. During the investigation of the case the prosecutrix filed a private complaint before the Judicial First Class Magistrate's Court, Peerumedu as Crl. M.P.1436/99 alleging that on 19.2.1996 she was raped by Sri. P.J. Kurian on two occasions at the Kumali Guest House. It was further alleged that she had mentioned the name of Sri. P.J. Kurian to the investigating team of officers, but they had deliberately excluded his name in the charge. It was further alleged that other accused also raped her at Kumali Guest House prior to 19.2.1996 and thereafter. The Magistrate after an enquiry under S.202 Cr.P.C. took cognizance of the offence and numbered the case as C.P. 21/99 and issued summons to the accused. Sri. Kurian, the accused in the above C.P. 21/99 filed Crl. M.C. 2419/99 before this court to quash the proceedings and that petition was dismissed which is reported in 2000 (1) KLT 388. The accused viz. P.J. Kurian took up the matter before the Supreme Court in Crl. Sri. Kurian, the accused in the above C.P. 21/99 filed Crl. M.C. 2419/99 before this court to quash the proceedings and that petition was dismissed which is reported in 2000 (1) KLT 388. The accused viz. P.J. Kurian took up the matter before the Supreme Court in Crl. A. 418/2000 and the Supreme Court stayed the proceedings against Kurian in C.P. 21/99. As the allegations in both the cases are identical and arise out of the same transactions, both the cases are to be consolidated and to have a single trial. As the case under the police report had already been committed before the committal of the private complaint, the trial in S.C.187/99 is a nullity and it is vitiated and hence the proceedings pending before the Sessions Court in S.C.187/99 has to be stayed till the private complaint filed on the same set of facts is committed. 4. Heard the learned counsel for the petitioners and the Public Prosecutor. 5. The main argument advanced by the learned counsel for the petitioners was that both the police charge and the private complaint arise in the course of the same transaction and as such both the cases are to be consolidated and there should be a single trial. It was further argued that C.P. 21/99 pending before the Magistrate's Court also has to be committed and both the cases are to be clubbed or consolidated and there should be a single trial of both the cases. According to the learned counsel for the petitioners the prosecutrix had been raped by a number of persons at different places and she had been raped by different persons at the Guest House, Kumali and the accused in the private complaint also was one among them who raped the prosecutrix on a particular day ie. on 19.6.1996. It was further argued that the girl had been raped at the same place by other persons prior to 19.6.1996 as well as thereafter, and the offence alleged to have been committed by Kurian also in the course of the same transaction and thereby both the cases are to be consolidated and jointly tried in accordance with S.223 Cr.P.C. He was placing reliance on a Full Bench decision of this court in Kesavan Natesan v. Madhavan Peethambaran (1984 KLN 36). That was a case where police laid a charge against one person for the commission of the offence under S.302 IPC and the Magistrate committed the case to the Sessions court. Thereafter a private complaint was filed against two persons viz. the accused in the police charge and another person alleging the commission of offence under S.302 and 323 r/w 114 IPC. The Magistrate committed the above case also to the Sessions Court. The Sessions Judge clubbed both cases and a single trial was held. The procedure adopted by the Magistrate committing both the cases was challenged before this Court. The main question raised before this court was whether the Magistrate can take cognizance of the private complaint and commit the case as he had already taken cognizance of the same offence and had committed the case before the Sessions Court. There it was held that where the commission of the offence was again brought to his notice by another agency or person with a contention that the offence involves certain more acts and more persons than as alleged in the case originally brought to him, it is his duty to look into those allegations and decide if he is to issue process and conduct an enquiry or trial, as the case may be. Further it was held that the procedure adopted by the Session Judge in clubbing both the cases and trying together was proper. The facts of the above case do not have any similarity with the facts of the present case. That was a case where one of the accused was common in both the cases viz. in the police charge as well as in the private complaint. The clubbing of both the cases was essential as both cases where in respect of the same incident and one of the accused had< 6. The learned Public Prosecutor argued that the private complaint filed by the prosecutrix has not yet reached before the Sessions Court whereas in S.C.187/99, the examination of witnesses had already been over and some of the accused had been questioned under S.313 Cr.P.C. and there was no chance for the Sessions Judge to club both the cases and no purpose would be served by staying the proceedings and waiting for C.P. 21/99 to be committed to the Sessions Court. It was further argued that even if C.P. 21/99 is committed, the evidence already let in S.C.187/99 cannot be read as evidence in C.P. 21/99 and as such there is no possibility for consolidation or for a joint trial in the above case. In the nature of the evidence and the circumstances, the above argument of the learned Public Prosecutor has some force and has to be accepted. 7. The learned counsel for the petitioners advanced an alternative argument that if both the cases cannot be clubbed or consolidated, those cases are to be tried simultaneously and are to be disposed of by separate judgments. The learned counsel for the petitioners placed reliance on a decision of the Supreme Court in Harjinder Singh v. State of Punjab and Ors. (1985) 1 SCC 422. That was a case where the police filed a chargesheet against three persons alleging the commission of offences including an offence under S.302 IPC. A counter case also had been registered by the police against the de facto complainant in the other cases and others making them" as the aggressors. Thereafter a private complaint was filed against 9 persons viz. the three persons arrayed as accused in the police charge and six other persons. There the Supreme Court held that the consolidation of both cases was not permissible under S.223 as the prosecution version in the two cases where materially different, contradictory and mutually exclusive and the accused persons were also not the same and in the above circumstances the evidence had to be recorded separately in both the cases and the cases had to be disposed of simultaneously. The above decision also do not have any relevance in the present case as the offences alleged to have been committed by the accused in S.C.189/99 and the offence alleged to have been committed by Kurian are exclusive and different even though technically it can be said that it was done in the course of the same transaction. 8. The learned counsel for the petitioner placed reliance on the decision of the Supreme Court in Balbir v. State of Haryana and Ann (2000) 1 SCC 285. That was a case where a crime was registered against two persons for murder on the basis of a statement given by the nephew of the deceased. 8. The learned counsel for the petitioner placed reliance on the decision of the Supreme Court in Balbir v. State of Haryana and Ann (2000) 1 SCC 285. That was a case where a crime was registered against two persons for murder on the basis of a statement given by the nephew of the deceased. The police, after investigation, filed a chargesheet against a different person who was not named in the F.I. Statement. Aggrieved by the above, the nephew who lodged the F.I. Statement filed a complaint before the Magistrate against the two persons named in the F.I. Statement. There both the cases were tried by the same Sessions Court simultaneously and the accused in the police charge was acquitted and the accused in the private complaint were convicted. There a contention was raised that both the cases should have been consolidated but the same was not accepted, as the version of the police charge was contradictory and mutually exclusive. The above decision also has no application in the present case, as in the above case two different versions had been raised in two separate cases regarding the death of the same person. In Mani v. Swaminathan (1986 KLT 170) this court held that the police charge against a person and a private complaint filed against three persons viz. the accused in the police charge as well as two other persons should be tried together by the same court, but not to be consolidated. It was further held that the evidence should be recorded in both the cases one after the other and after recording prosecution evidence in one case, judgment should be withheld and then the evidence in the other case will have to be recorded and 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. There also one accused was common in both cases. In fact, the above decision also cannot have any application in the present case. 9. The learned Public Prosecutor placed reliance on the decision of this Court in Peter v. Kurian( 1994(l) KLT 17) where the application of S.223 had been considered. There it was held: "It is in the discretion of the court to decide whether two cases need be jointly tried. 9. The learned Public Prosecutor placed reliance on the decision of this Court in Peter v. Kurian( 1994(l) KLT 17) where the application of S.223 had been considered. There it was held: "It is in the discretion of the court to decide whether two cases need be jointly tried. The commencing wording in S.223 of the Code are: "May be charged and tried together". From those words what can be discerned is that a discretion is conferred on the court to decide whether any particular two or more cases need joint trial if offences have been committed in the course of the same transaction. If the cases are substantially different from each other, though the same incident is the basis for both cases, court may have to bear in mind the possibilities of such trial causing prejudice to the defence. The real test is whether prejudice would be caused to the accused in such joint trial. Proviso to S.223 indicates that even cases not falling under any of the categories enumerated in the section can nevertheless be jointly tried if the accused would express the desire in writing to have such joint trial and if no prejudice would be caused to the accused. S.218(1) of the Code should be tried separately. But there also an option is given to the accused to request the court to conduct a joint trial. When accused makes a request for joint trial, the court can presume that no prejudice would be caused to him by adopting that course". So far as the petitioners are concerned, there is no chance of any prejudice to be caused to them even if both the cases are tried separately. But if the case against Kurian is tried jointly with the present case and the evidence let in the above case is treated as part of the evidence in the private complaint, much prejudice would be caused to him. In fact the clubbing or joint trial of both cases would be prejudicial to the accused in the private complaint. In Manikandan v. Pandian and others (1989 Supp.(2) SCC 648) the Supreme Court held that the police charge and the private complaint need not be consolidated and tried together though the case instituted on the private complaint is in respect of the same offence for which the charge sheet had been filed against one of the accused. In Manikandan v. Pandian and others (1989 Supp.(2) SCC 648) the Supreme Court held that the police charge and the private complaint need not be consolidated and tried together though the case instituted on the private complaint is in respect of the same offence for which the charge sheet had been filed against one of the accused. There it was held that it would be proper to record the evidence separately in both the cases unless the witnesses are common and the cases are to be tried one after another. That was a case where the police filed a charge sheet against one person for murder. Thereafter the first informant filed a private complaint against three persons including the accused in the police charge. There it was alleged that the complainant had given information to the police implicating all the three persons in the F.I. Statement but the police did not mention the name of all the three persons in the F.I. Statement. Then the private complaint was quashed by the High Court under S.482 Cr.P.C. The above order was challenged before the Supreme Court and the above order of the High Court was set aside by the Supreme Court and the police charge and the private complaint were directed to be tried separately. None of the above decisions can have any application in the present case where the private complaint is instituted against a person who is not an accused in the police charge and none of the accused in the private complaint. The allegations in both the cases are independent, separate and mutually exclusive. The evidence in the police charge had already been recorded and the case had reached the stage of examination of the accused under S.313 Cr. P.C. The private complaint has not yet reached before the Sessions Court and hence there is no possibility of clubbing or simultaneous trial of both the cases. The reading of any evidence recorded in the police charge would, in fact, be prejudicial to the accused in the private complaint who is not an accused in the police charge. In order to attract S.223, atleast one accused should be common in both cases and both cases should be in respect of the same incident. The reading of any evidence recorded in the police charge would, in fact, be prejudicial to the accused in the private complaint who is not an accused in the police charge. In order to attract S.223, atleast one accused should be common in both cases and both cases should be in respect of the same incident. The allegations in the private complaint constitute a separate offence of rape and hence the case against him can be tried separately and no prejudice would be caused to the petitioners by separate trials. The long delay in filing this petition ie. after the examination of all the witnesses and at the stage of recording the statement of the accused under S.313 Cr. P.C. also would disentitle them to the prayer for stay of the proceedings. Considering all the above circumstances, the prayer for staying the proceedings pending before the special court in S.C.187/99 cannot be allowed. Hence this petition has only to be dismissed. In the result this petition is dismissed.