V. Bhaskaran Nambiar, J.
1. Scope of the remedy that is available to a party against a combined order, after a joint trial as contemplated under Section 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 Section 210 of the Code and all the accused were acquitted.
3. The private complainant happened to the P.W.I 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 Section 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 Section 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 Section 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.I 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 Section 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 Krishamal Oberio v. Corporation 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 : 1SCR880 , 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 Section 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 Section 239, Cr. P.C. That did not however alter the nature of the cases so as to affect their appellability under Section 417. The two cases retained their individuality except for the convenience of the trial. If the cases had ended in conviction they would have had to be separately recorded. The first ten accused would have had to appeal from their conviction and sentence in the G.R. case and similarly the remaining accused from the complaint case. If the State did not think it proper to direct the Public Prosecutor to present an appeal to the High Court from the order of acquittal in the G.R. case it might have been open to the complainant to invoke the powers of the High Court under Section 439 of the Code if proper grounds for revision were present.
8. In the other decision reported in Bhimappa v. Laxman : 1970CriLJ1132 , it was observed thus ; -
Now there can be no manner of doubt that one of the cases was instituted on the report of the police officer and the other on the complaint of the complainant There can be no question of merger because the identity of the two cases is maintained right up to the end of the Sessions Trial. The case of Bhimappa proceeded on its own number and although evidence was led in both cases together, the acquittal was recorded in each of the two cases. The police did not present a charge-sheet against Mallappa and the trial of Mallappa can be said to be in the other case and not in the case filed by the police. In this view of the matter, it is quite plain that Bhimappa was entitled to move the High Court for special leave in his own case. The order saying that he had no standing cannot, therefore, be sustained.
9. It thus seems to be clear that the revision filed by the petitioner against C.C. No. 23/78 charge-sheeted by the police was maintainable and the lower court was wrong in stating that he had a right of appeal. The order of the lower court is thus set aside and the matter is sent back to the lower court for fresh disposal according to law and to decide whether the lower court should interfere against acquittal in the revision filed by the witness in the police complaint.
10. However, it has to be made clear that in the police complaint, respondent 4 was not an accused. He was an accused only in the private complaint. The present petitioner can have no remedy against the fourth accused in the revision which he had filed against C.C No. 23/78. Cri. M.C. is thus allowed, the order of the lower court set aside and the matter remitted back to the lower court for fresh disposal according to law and in the light of the observations made above.