Joseph vs Joseph and Others

K.K. Narendran, J.—The short point that arises fop consideration is whether for the clubbing for trial of a complaint casa and the case arising out of the Police report u/s 210 of the Criminal P, C 1973, is it enough if the complaint case and the Police charge relate to the samfl occurrence or is it necessary that the offences taken cognizance of in both must be identical, when the other conditions insisted by the section are satisfied. The complainant in C. C. 1935 of 1978 before the Judicial Magistrate of the Second Class, Ernakulam is the revision petitioner and respondents 1, 3 and 4 the accused therein. The occurrence took place at 10-30 a, m. on 15-1-1978. The matter was reported to the Cochin Cusba Police Station and Crime No. 13 of 1978 was registered against respondents 3 and 4 only. As the respondent No. 1, who is a Police Constable, was left out, the petitioner filed a complaint as C. C. 75 of 1978 before the Judicial Magistrate of the First Class, Cochin. The learned Magistrate took cognizance of all the offences mentioned in the complaint and that too against all the accused. The case was later transferred to the Judicial Magistrate of the Second Class, Ernakulam and renumbered as CC. 1935 of 1978. Crime No. 13 of 1978 was investigated and only respondents 3 and 4 were charge-sheeted and that too for only some of the offences mentioned in the complaint. That case filed as S. T. 505 of 1978 before the Judicial Magistrate of the First Class, Cochin was transferred to the Judicial Magistrate of the Second Class. Ernakulam and renumbered as C. C 307 of 1979. The petitioner filed Crl. M- P. 217 of 1980 in C. C. 1935 of 1978 for clubbing the complaint case with the Police charge case for trial, That was allowed by the learned Magistrate. The 1st respondent in this revision challenged the above order before the Sessions Court, Ernakulam in Crl. R. P. 32 of 1980. The Second Additional Sessions Judge allowed the revision and set aside the order of the Magistrate. In this revision the petitioner-complainant has challenged the above order of the Sessions Judge.

The Sessions Judge has given two reasons for interfering with the order for clubbine the two cases passed by the Magistrate. They are: (1) For the application of Section 210 it is absolutely necessary that in the first instance there should be a private complaint before the Court during the pendency of which it is brought to the notice of the Court that Police investigation is pending in respect of the same offence. It is only after the filing of the Police report that the complaint in this case was filed. To such a situation Section 210 cannot be applied; and (2) The offences in respect of which investigation was carried on by the Police are not identical with the offences alleged by the 2nd respondent in his private complaint. Unless they are identical, Section 210 will not have any application and an order for clubbing both the cases u/s 210(2) is not permissible at all.

The first of the above two reasons given by the learned Sessions Judge is based on a mistake of fact. The private complaint was filed on 7-2-1978 and the Magistrate took cognizance of the same on 7-2-1978 itself. The charge-sheet though dated 30-1-1978 was filed in Court only on 31-3-1978 by the police. So, it goes without saying that the private complaint was pending when the report was made to the Court bv the Police after investigation. So, for the reason given by the Sessions Judge, clubbing of the two cases for trial cannot be denied.

Then the further question is whether the clubbing can be had only if the offences taken cognizance of in the complaint case and in the case arising out of the Police report are identical. Section 210 of the Criminal P. C. 1973 for short the Code, reads:

210- Procedure to be followed when there is a complaint case and police in- vestigation 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 re-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 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 staved by him, in accordance with the provisions of this Code.

Under Section 210 if the police investigation is in relation to the offence which is the subject matter of the enquiry in the complaint case, the Magistrate is to stay the trial and call for the report from the police. If, on the report of the police officer, the Magistrate takes cognizance of any offence against any person who is an accused in the complaint case, the Magistrate has to try both the cases as if they are instituted on a police report. The Random House Dictionary of the English Language gives a restricted meaning for the word ''offence'' and a meaning which is not so restricted. They are;

Offence - the act of attacking; attack or assault; a violation or a breaking of a law or rule.

The same dictionary gives the following meaning for the word ''occurrence,:

Occurrence - something that happens; event; incident.

In construing Section 210(1) the word ''offence'' cannot be given the restricted meaning. There, it is used to denote the occurrence, the incident, or the event. This is clear from the words which follow viz., ''which is the subject matter of the enquiry''. But the same meaning cannot be given to the word ''offence'' used in Sub-section (2). There, it is used in the restricted sense of a violation of a law. Cognizance can be taken only of a violation of law. So, for clubbing the o cases for trial it is enough that cognizance is taken by the Magistrate of any offence against any accused in the complaint case on the report of the police who investigated the occurrence which led to the complaint case. If, on the other hand, it is insisted that all the offences taken cognizance of in the complaint case must be there in the case registered on the police report that will only defeat the very purpose of Section 210 itself. It is to prevent private complainants from interfering with the course of justice that Section 210 is incorporated in the Code.

In State v. Har Narain 1976 Cri LJ 562 (Delhi) it has been held (at p. 564):

The word ''offence'' has been defined in Section 2(n) of the Code as "any act or omission made punishable by any law for the time being in force...." In other words, it is the act or omission which has to be common. As long as the facts under investigation, by the police include the facts mentioned in the complaint case, then it will make no difference if the police come to the conclusion that offences not mentioned in the complaint have been committed by the accused....

Once the criteria laid down in Sub-section (1) are satisfied, then if the Magistrate takes cognizance of ''any offence'' against ''any person who is an accused in the complaint case'' on the basis of police report, it is the duty of the Magistrate under Sub-section (2) to try the two cases together as if they were instituted on a police report. The respondents contend that the words ''any offence'' used in subsection (2) show that the offence cognizance of which is taken on the basis of the police report should be the same which is being enquired into or tried in the complaint case. In my opinion this contention is not well founded. The word ''any'' does not denote or refer t0 a particular or a specific offence. On the other hand, it suggests that it is sufficient if cognizance of ''an offence'' is taken.

A contrary view has been taken in Bhupinder Singh Vs. Daljit Kaur, wherein it has been said-.

The object underlying Section 210 is that when the offences in the complaint case and the police case are identical, the identical offences should be tried together in course of one proceeding as otherwise there would be unnecessarily multiplicity of proceedings. Only if the police investigation is in respect of all the offences which are being inquired into or tried by the Magistrate in a case instituted upon a complaint that the Magistrate is required by Section 210(1) to stay the proceeding in the case instituted upon a complaint.

In the above decision it is also held that the provisions of Section 210(2) will not be applicable where the Magistrate has not staved the proceedings in the complaint case u/s 210(1). With respect, I venture to state that I am not in a position to agree with the above view. As already pointed out, the same meaning cannot be given to the word ''offence'' appearing in Sub-sections (1) and (2) of Section 210. Section 210(2) does not insist that only in cases where the proceedings in the complaint case were stayed under Sub-section (1) that clubbing of the two cases is possible. But it is only proper that the Magistrate stays the proceedings in the complaint case when he comes to know of the pending investigation.

In the order impugned, reliance has been made by the learned Sessions Judge on Annamma v. Chacko 1976 KLT 503. As has been rightly held by the learned Judge, the Code (1973 Code) had no application to the two, cases involved there because those cases were already pending at the time wiien the Code came into force. In that case, all that has been said in the judgment about Section 210 can only be obiter dicta.

In the result, the order impugned is set aside. It goes without saying that the learned Magistrate has to try both the cases together as insisted by Section 210(2) of the Code. The Criminal Revision is allowed.