Bansi Lal vs State

Hasnain Massodi, Judge

Smt. Trishala Devi W/o Sat Pal, R/o Badheri, Tehsil and District Samba, sometime after 8th July, 2009 filed a criminal complaint against the

present petitioner and other accused in the Court of JMIC (Munsiff), Samba, alleging therein that she was assaulted and injured by the petitioner

and other accused and that they be punished for having committed offence punishable u/s 323/325/451/504 RPC. Learned JMIC (Munsiff),

Samba took cognizance and issued process against the petitioner and other accused.

The respondent No. 2 while filing the complaint also appears to have lodged the report with local Police Station leading to registration of case

FIR 237/09 u/s 323/325 RPC. While the complaint was pending before learned JMIC (Munsiff), Samba, the investigation in the matter was being

conducted by the officer to whom it was entrusted. The investigation was concluded as proved against the petitioner and other accused and

culminated in the charge-sheet presented before Additional Munsif/Judicial Magistrate 1st Class, Samba on 04.02.2011.

The order of learned Additional Munsif/Judicial Magistrate 1st Class, Samba, dated 8th April, 2011 was assailed in a criminal revision petition

before learned Principal Sessions Judge, Samba. The ground urged in the revision petition was that learned JMIC (Munsiff), Samba having already

taken cognizance in the matter on a complaint filed by respondent No. 2, the Additional Munsif/Judicial Magistrate 1st Class, Samba lacked the

power to take cognizance on charge-sheet filed by Police Station, Samba relating to the same occurrence that was subject matter of criminal

complaint before JMIC (Munsiff), Samba. It was urged that the procedure laid down u/s 205-E Cr.PC was not followed by learned Additional

Munsif/Judicial Magistrate 1st Class, Samba and that once cognizance was taken on a complaint, learned Additional Munsif/Judicial Magistrate 1st

Class, Samba had become ""functus officio"" and was stripped of any power to take cognizance on the charge-sheet filed during pendency of the

complaint. Reliance was placed on law laid down in ""Ibrahim Khan v. State of Rajasthan."" 1999 Cri. L.J 345 (Raj HC).

The Revisional Court opining that in terms of Section 205-E Cr.PC, both the cases, i.e. complaint and charge-sheet are to be tried together by

one Court, transferred the criminal challan/charge-sheet titled ""State v. Bansi Lal"" file No. 169/Challan to the Court of JMIC (Munsiff), Samba

where the complaint was pending. The transferee Court was asked to try both the cases viz complaint and challan/charge-sheet.

The order dated 17th August, 2011, whereby the revision petition has been disposed of is questioned in the present petition under 561-A

Cr.PC on the grounds that the order of the Trial Court framing charge against the petitioner and other accused as also the order of the Revisional

Court on the grounds that the orders are bad in law and in conflict with the procedure laid down u/s 205-E Cr.PC. It is insisted that the Courts

below ought to have closed the proceedings in the charge-sheet.

Heard and considered.

Though the victim of an offence, who was reported the occurrence to the police and got a case registered, is expected to wait for the results of

investigation, once Police machinery is set in motion at his instance and investigation initiated, yet law does not prohibit filing of criminal complaint

while the Investigation Agency is busy in investigating the matter. What is disfavoured is parallel trials relating to the same occurrence. The dictates

of public policy make it imperative that evidence is not repeated, the witnesses are not compelled to cross the witness box and deposed regarding

the same occurrence more than once, creating extra pressure on already scarce Court time and lead to multiplicity of litigation. The principle finds

expression in Section 205-E of Cr.PC. It would be profitable to reproduce the provision hereunder;

205-E. ""Procedure to be followed when there is a complaint case and police investigation in respect of the same offence.

(1) When in a case instituted otherwise than on a police report (hereinafter referred to as a complaint case), it is made to appear to the Magistrate,

during the course of the inquiry or trial held by him, 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, the Magistrate shall stay the proceedings of such inquiry or trial and call for a report on the matter from

the police officer conducting the investigation.

(2) If a report is made by the investigating police officer u/s 173 and on such report cognizance of any offence is taken by the Magistrate against

any person who is accused in the complaints 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.

(3) If the police report does not relate to any accused in the complaint case or if the Magistrate does not take cognizance of any offence on the

police report, he shall proceed with the inquiry or trial, which was stayed by him, in accordance with the provisions of this Code.

It follows that once cognizance is taken on a complaint and the proceedings initiated and the police after investigating into the same occurrence

comes up with a charge-sheet relating to the same offence, 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. In the case in hand, Learned JMIC (Munsiff), Samba had taken

cognizance on the complaint filed by Smt. Trishala Devi when the Investigation was on. It was not reported to Learned JMIC, Samba by either of

the parties that the police investigation was also in progress relating to the same occurrence. Resultantly, Learned JMIC had no occasion to stay

the proceedings and call for a report from the Investigating Officer in terms of Section 205-E (1).

The Investigating Agency, however, after concluding investigation did not present the charge-sheet before the same Court but before the Court

of JMIC/Additional Munsiff, Samba, whereupon cognizance was taken and trial commenced. Learned Sessions Judge, Samba, in the facts and

circumstances of the case, was left with no option but to transfer the criminal challan/charge-sheet to the Court of JMIC(Munsiff), Samba and ask

the Learned Magistrate to try together both the ""complaint case and the case arising out of police report.

The petitioner's case is that such a recourse was not available to Learned Sessions Judge as after taking cognizance on the complaint, the

Magistrate could not take cognizance on the charge-sheet/challan as the Magistrate had become ""functus officio"". There is no merit in the case set

up and reliance placed on ""Ibrahim Khan's"" case (Supra) is grossly misplaced. In the case relied upon by learned counsel for petitioner, learned

Magistrate after taking cognizance of the offence on a charge-sheet and its committal to the Court of Sessions, took cognizance of the same

offence on a private complaint and issued process against the accused. It was in the said background that Rajasthan High Court held that the

Magistrate after taking cognizance of the offence on charge-sheet and committing the case had become ""functus officio"" vis-a-vis occurrence in

question and had no authority to take fresh cognizance of the offence on a private complaint. The facts of the present case are markedly different

from the facts of the reported case.

In the case in hand, as already pointed out, two different Magistrates took cognizance of the offence of complaint and charge-sheet on different

dates and when the matter was brought to the Sessions Court, the Court alive to the mandate of Section 205-E Cr.PC took steps to ensure that

the complaint case and the case arising out of the charge-sheet are tried together. Furthermore, the complaint was still pending before the trial

Court and case had not be committed to Sessions Court, as was the position in reported case.

The argument that Sessions Judge lacks power to transfer a criminal case from a Magisterial Court and such power lies exclusively to the

Judicial Magistrate is again without any merit. Section 528(1-c) Cr.PC empowers a Sessions Judge to order transfer of any case from one

'Criminal Court' to another 'Criminal Court' in the same sessions division. The 'Criminal Court', in Section 528(1-c) does not mean the Court of

Additional Sessions Judge/Assistant Sessions Judge but also includes a Magisterial Court. It is pertinent to point out that as Sessions Judge in

terms of Section 528(1)(1-c) is already vested with the power to withdraw any case or appeal, or recall any case or appeal which he has made

over to, any Assistant Sessions Judge subordinate to him or Additional Sessions Judge provided trial is yet commence in the later case, there was

no need to add Section 528(1-c), if it was intended to again relate to the Court of Additional Sessions Judge and Assistant Sessions Judge. It is,

thus, evident that Section 528(1-c) is wide enough in its scope to include a 'Criminal Court' preside over by Judicial Magistrate 1st Class. In the

present case, both the Courts--JMIC(Munsiff), Samba and JMIC/Additional Munsiff, Samba are within the Sessions Division, Samba and

Sessions Judge, Samba acted well within his powers while directing transfer of charge-sheet from the Court of JMIC/Additional Munsiff to the

Court of JMIC(Munsiff), Samba.

Viewed thus, the petition is bereft of any merit and is, accordingly, dismissed.