DESAI Vs. PAUL ABRAO
LAWS(KER)-1963-7-49
HIGH COURT OF KERALA
Decided on July 08,1963

Desai Appellant
VERSUS
PAUL ABRAO Respondents


Referred Judgements :-

NARAYANA SWAMI V. EGAPPA REDDY [REFERRED TO]
STATE OF KERALA VS. MARY C NIDHIRI CHACKO [REFERRED TO]


JUDGEMENT

P. Govinda Menon, J. - (1.)THE accused in calendar case 80 of 1962 on the file of the Sub -Divisional Magistrate, Alwaye is the revision petitioner. The respondents, two in number, who are father and son had filed a joint complaint against the accused under Section 500 I.P.C., alleging that the accused had defamed them. The case was taken on file and some witnesses were examined. At that stage the respondents filed a petition for deciding the question of the maintainability of a joint complaint in the tight of a recent decision of the Madras High Court holding that a joint complaint is not maintainable in law. The learned Magistrate found that such a complaint is not maintainable, but agreeing with the view taken by the Madras High Court gave an option to state as to which of the two complainants would be the complainant in the case. The accused then took up the matter in revision. The learned Sessions Judge of Ernakulam confirmed the order of the learned Magistrate. Aggrieved with the order the accused has come up in revision to this Court. It is argued by the learned counsel for the accused that when the court found that cognizance could not have been taken on a joint complaint the only course open to the court was to have discharged the accused. That a joint complaint is not maintainable is not disputed by either side. The decision in Narayana Swami v. Egappa Reddy (1962 (2) Cr.L.J. 616) has discussed this question and it has been held that such a complaint is not maintainable. I am also in agreement with this view. The only question now is as to what is the proper order that should have been made. I have been referred to the decision of Raman Nayar J., in the case in State of Kerala v. Mrs. Mary C. Nidhiri Chacko ( : 1961 K.L.J. 645) where it is stated that in a case where the trial itself was without jurisdiction on the ground that there was no proper complaint the proper order that should have been passed is that "the accused be discharged from the case."
(2.)LEARNED counsel for the complainant has now filed a statement which reads:
Without prejudice to the right of the complainants to file fresh complaints, the complainants are agreeable to the discharge of the accused from the case initiated on the basis of a joint complaint on the ground that the joint complaint is not maintainable in the light of, 1962 (2) Crl. L.J. 616.

In view of the fact that both sides have no objection to this course particularly so, since some of the witnesses have already been examined in the case and the question would arise as to what is to be done with that evidence already an record, I think the proper course would be to discharge the accused from the case. Being only a discharge it would certainly be open to the complainant, if so advised, to file fresh complaints.

The order of the Sub -Divisional Magistrate is, therefore, set aside and the order will be that as the joint complaint is not legally maintainable the accused is discharged from the case.

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