Harbhajan Singh vs Gurdip Kaur

Swatanter Kumar, J.

This revision petition is directed against the order dated 9.10.1996 passed by Judicial Magistrate Ist Class, Batala, vide which the learned Magistrate directed that the complaint case be clubbed with the police case arising out of F.I.R. 119 of 1995 and further directed that they be tried together in accordance with the provisions of section 210(2) of the Code of Criminal Procedure (for short hereafter to be referred as ''the Code'').

On or about 19.12.1995, complainant Gurdip Kaur was dragged by Rajbir Singh accused, who kicked in her stomach; her clothes were fetched above to make her naked and in order to out rage her modesty her breasts were touched amongst others. With these allegations an F.I.R. was registered being F.I.R. No. 119/95 dated 22.12.1995, under Sections 452, 354, 323, 148 read with Section 149 I.P.C. by Police Station Sri Hargobindpur, District Gurdaspur. According to the complainant, as the police was trying to help the accused party, she had sent a telegram to the Chief Justice of this Court which was treated as the petition for habeas corpus and notice was issued. This petition was registered as Criminal Misc. No. 3538M of 1996 and was finally disposed of by Shri V.K. Bali, J. vide order dated 22.5.1996. The relevant part of the order reads as under :

"..... ....... ........

In reply that has been filed in pursuance of the notice having been issued, it has been mentioned that a case against the accused persons has already been registered and even challan has been presented. Mr. Lakhanpal, however, states that the basic allegations constituting an offence against the accused have deliberately not been mentioned in the challan. If that be so, it shall always be open for the petitioner to file a complaint as well which, as per law, has to be tried along with the police case and substantiate allegations against the accused.

Disposed of accordingly."

In August, 1996, a complaint was also filed on somewhat similar facts. The complaint was also listed before the Magistrate. However in the meanwhile, the challan had been presented which also came up before the same Court. Gurdip Kaur filed an application praying that the complaint case and the case initiated on police report be clubbed together. This application was opposed by the accused.

The basic objection of the accused was that as there was some different versions in the complaint and the police challan, their defence would suffer a serious prejudice if these cases were clubbed. Further, it was argued that as no police investigation was pending, because the challan had already been filed, and the Court had no jurisdiction under the provisions of section 210 of the Code to direct clubbing of the complaint with the police case. The learned trial Court while rejecting these contentions allowed the application of the complainant which has resulted in the filing of the present petition by the accused.

The provisions of Section 210 of the Code read as under :

"210. 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 subjectmatter 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 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.

(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."

The bare reading of these provisions indicates, that there is no bar on the power of the Court to direct clubbing of a complaint case and the police case. Once the ingredients stated in these provisions are satisfied, the Court will be well within its jurisdiction to direct that they be tried together. There appears some fallacy in the submission of the learned counsel for the petitioner, that as there was no police investigation pending when the complaint case came up for hearing before the Court and when the present application was filed, the trial Court had no power to pass the impugned order. The provisions of subsection (2) of section 210 of the Code are not controlled by or are restricted by the provisions of subsection (1) of the said section. SubSection (1) gives powers to the Court to stay proceedings or trial and to call for the police report in that case. Subsection (2) of section 210 of the Code appears to come into play when a report as submitted by the Investigating Officer under Section 173 of the Code, and on such a report cognizance of any offence is taken by the learned Magistrate. If the accused named in the complaint case and on the police report against whom the learned Magistrate has taken cognizance of an offence are the same, in that event, the Magistrate shall enquire into or try together the complaint case and the case arising out of police report as if they were instituted on a police report. Absolute identical form is not necessarily a prerequisite for exercising power under Section 210(2) of the Code. It is mainly with regard to the occurrence and offence that the subjectmatter of enquiry or trial may be similar for which the police investigation is in progress. The factum that there is some variation in the version like that in one place, it is stated that Gurdip Kaur was dragged, kicked in her stomach, her clothes were fetched above to make her naked and in order to outrage her modesty her breasts were touched and in the police report it is stated that she was dragged, her clothes were pulled upon and she was made naked cannot be termed as a contradiction of the nature which could result in any serious prejudice to the right of the defence of the accused and consequently would take away the jurisdiction of the Court to exercise its power under the aforestated provisions. Even if in a case there are two conflicting versions and there is likelihood of the one version given in the police case being destructive of the version given in the complaint case still the Court would be well within its jurisdiction to direct that both the cases be tried together, but they may not be consolidated or clubbed together as it is understood in the common parlance. In this regard reference can be made to the judgment of this Court in the case of Ranjit Singh v. State of Haryana and another, 1996(1) RCC 266, which reads as under :

"In Harjinder Singh''s case (supra) the facts were somewhat similar to the present case. In that case, a case was fixed on the police report under Sections 302, 307, 342, 440, 149, 148 and 120B of Indian Penal Code and Sections 25 and 27 of the Arms Act. Another case was instituted against the said accused along with some other persons upon a private complaint. Both the cases were committed to the Court of Sessions for trial. After discussing the law and correct interpretation of Sections 210 and 223 of the Code, the Supreme Court held as under :

"The proper course to adopt is to direct that the two cases should be tried together by the learned Additional Sessions Judge but not consolidated i.e. evidence should be recorded separately in both the cases one after the other except to the extent that the witnesses for the prosecution who are common to both the cases be examined in one case and their evidence be read as evidence in the other. The learned Additional Sessions Judge should, after recording the evidence of the prosecution witnesses in one case, withhold his judgment and then proceed to record the evidence of the prosecution in the other case. Thereafter he shall proceed to simultaneously dispose of the cases by two separate judgments taking care that the judgment in one case is not based on the evidence recorded in the other case."

The present case is not of the kind of cases which would be covered by the aforestated principles of law. A minimal variation in the version recorded by the police and put forward by the complainant in the complaint case would not be a ground to take the case outside the ambit of jurisdiction exercisable by the Courts concerned under the provisions of the Code. These minor variations cannot constitute a sufficient ground for dismissing an application of the present kind. In substance the occurrence is the same, Offences are more or less the same, the accused in both the cases are same and substantial evidence to be led in either the police or the complaint case would be similar. This being the situation, no fruitful purpose would be served by exposing the parties to face two different trials for one and the same offence. It would amount to exposing parties to unnecessary expense, inconvenience and more so unnecessary time being spent by the Court.

Further the purpose of these provisions appears to be, to avoid multiplicity of litigation relating to the same occurrence. Under Section 173 Cr.P.C. the police has to file a challan which is to contain the entire case of the prosecution. The purpose obviously is to bring to the notice of the Court the offences alleged to have been committed by the accused, the evidence in support thereof and the witnesses who are to support such version of the prosecution. Upon presentation of this report, the Court has to apply its mind. There may be cases where police investigation is not pending and the police report is presented before the Court approximately at the same time when the complaint is filed. In that circumstance it cannot be said that Court has no jurisdiction to exercise powers under the provisions of section 210 of the Code because this would result in rendering subsection (2) of section 210 of the Code as redundant and ineffective.

The purpose of these provisions as emerges from the bare reading of this section is that the court should have the report of the police before it deals with the complaint case effectively. The intention is to prevent two different courts or the same court from exercising its jurisdiction upon two different and distinct trials at the same time and for the one and the same offence and occurrence. None of these provisions indicates that the police or the complaint case loses its entity. As per the scheme and unequivocal language used in these provisions, both the cases exist, but in some cases they may be tried with certain distinctions while in other cases they may be clubbed or consolidated together.

The resultant conclusion of the above discussion is that in each and every case it cannot be said that pendency of police investigation is an absolute condition precedent to permissible exercise of jurisdiction by Court concerned under provision of section 210(2) of the Code. The purpose of these provisions was elaborately enumerated by the Allahabad High Court reported as 1981 Allahabad Criminal Reporter 298, where the Court indicated that if two separate proceedings were arising out of a private complaint and one arising out of a police report in respect of the same offence before Magistrate, it will always be open to the Court to amalgamate the two proceedings and proceed with them as only one case if that becomes necessary because continuation of two parallel proceedings against the same accused would amount to trying the accused twice for the same offence, which is prohibited under Article 21 of the Constitution. This view taken by the High Court of Allahabad even finds support from the judgments of various other Courts reported as 1976 Crl.Law Journal 562 (Delhi), 1981 Crl. Law Journal 541 and AIR 1977 Supreme Court 2401.

Thus both the above contentions raised by learned counsel for the petitioner do not have any merit and are liable to be rejected. As a result of the discussion aforestated this petition is dismissed. There shall be no orders as to costs. The order of the learned Magistrate that the police case and the complaint case shall be tried together in accordance with the provisions of Section 210(2) of the Criminal Procedure Code does not call for any interference by this Court in this revision petition.