Chandra Pal and Others vs State of U.P. and Another

Amar Saran, J.—Heard learned Counsel for the applicants and the learned Additional Government Advocate.

This application has been filed for quashing the summoning order dated 07.11.2007 and further proceedings in Complaint Case No. 1846 of 2007 Kacher v. Chandra Pal and others under sections 323, 504, 506, 354 IPC and 3 (1)(x) SCST Act, Police Station Hasayan. district Hathras, pending in the Court of Chief Judicial Magistrate, Hathras.

The contention of the learned Counsel for the applicants was that on the same allegation an FIR was registered as Crime No.242 of 2007 under sections 147, 323, 504, 506 IPC and 3(1)(x) SC/ST Act and that a charge-sheet was submitted against the applicants No.2 to 5 under sections 323, 504, 506 IPC in the Court of Judicial Magistrate, Hathras on 13.7.2007. Cognizance was taken by the Magistrate and the applicants No.2 to 5 surrendered before the Court concerned and applied for bail. Bail was allowed by the Judicial Magistrate concerned by orders passed on different dates.

In respect of the same occurrence dated 21.06.2007, which is said to have taken place at 7 P.M., another complaint was lodged on 22.08.2007 before the Chief Judicial Magistrate, Hathras, where after examining the complainant and his witnesses under sections 200 and 202 Cr.P.C., the Chief Judicial Magistrate passed the aforementioned impugned order.

It is argued that for the same cause of action an FIR and a complaint both ought not to have been lodged. u/s 210 of the Code of Criminal Procedure, full powers have been given to any party to inform the Court concerned before whom the complaint case is pending that an investigation is pending or charge sheet has been submitted in respect of the same incident. In that event, the Magistrate concerned shall try both the complaint case and the case instituted on a police report, as if both the cases were instituted on a police report. It will be open to the applicants to bring this information to the notice of the Court of the Chief Judicial Magistrate, Hathras, where complaint case No. 1486 of 2007 is pending and if he finds that both the FIR and complaint relate to the same subject matter, he may try both together in accordance with section 210 of the Code of Criminal Procedure. I, therefore, find no ground for quashing the complaint case or for staying the proceedings therein.

It was further submitted by the learned Counsel for the applicants that as the applicants have already been granted bail in the case, which was instituted on a police report by different orders, which are mentioned in paragraph 14 of the affidavit, they ought to be allowed to continue on the same or on fresh bail bonds. In view of the decision of the Apex Court in the Hamida v. Rashid @ Rasheed and others 2007(3) Criminal Court Cases 483 (S.C.) : 2007(54) AIC 19 this practice of permitting the accused to continue on the earlier bail subject to his furnishing fresh bail bonds or on the same bail bonds has been specifically disapproved. The Apex Court decision requires that the accused must surrender and obtain bail also under the newly added section 3(1)(x) SC/ST Act in the present case.

However, in view of the fact that the applicants, who are already enjoying bail and are not said to have abused the same, it is provided that if the applicants surrender within three weeks after intimating their intention to surrender three days prior to the date of their actual surrender before the Court concerned, the prosecution shall not take any additional time for obtaining police documents etc., in the case and shall have all the material available when the applicants appear on the intimated date. Thereafter as far as possible the Court concerned shall dispose of their bail applications on the same day itself. This direction is consistent with the direction of the Apex Court in Naresh Kumar Yadav Vs. Ravindra Kumar and Others, .

With these observations, this application is disposed of.