Khalli Das vs Nahaka Das and Others

S. Acharya, J.—The complainant in Complaint Case No. 1. C.C. 6 of 1974 has filed this revision against the order dated 16-10-1974 passed by the learned Subdivisional Magistrate, Berhampur.

On the complaint filed by the Petitioner on 8-1-1974, cognizance of an offence u/s 380, Indian Penal Code was taken on 1-1-1974 against Ramesh Das and 3 others. The complainant earlier had lodged a First Information Report at Berhampur Taluk P.S., and on investigation the police submitted charge sheet in that case only against Ramesh Das on 9-4-1975. On that charge sheet G.R. Case No. 934/73 was instituted, cognizance of offences under Sections 454 and 380, Indian Penal Code was taken only against Ramesh Das and the case proceeded as such.

Mrs. Padhi for the opposite parties admits that both the cases arise out of the same occurrence. The Court below has passed the impugned order on the petition filed by the accused persons In 1. C.C. No. 6/74, as stated by Mr. Murty.

In the impugned order it is stated that since the G.R. Case No. 934/74 is proceeding on the same allegation, the above-mentioned complaint case need not proceed any further. Saying so the Court ordered ''amalgamation'' of the complaint case with the G.R. Case. As the G.R. Case is proceeding only against Ramesh Das, the Court discharged the other three accused persons in the complaint case stating that if he would find evidence against them he would later frame charge against those accused persons. Mr. Murty contends that the learned Magistrate, after having taken cognizance of an offence against the three accused persons in the complaint case did not have the power to discharge them in the manner done by him and for reasons stated in the impugned order. There is sufficient weight in this contention. Section 253 of the old Criminal Procedure Code, which makes provision for discharging an accused persons, does not enable a Magistrate to discharge an accused for the reasons stated in the impugned order. Section 253 provides that an accused can be discharged by a Magistrate, if upon taking all the evidence referred to in Section 262 and making such examination of the accused as the Magistrate thinks fit, he finds that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him. Sub-section (2) thereof provides that nothing in this section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless.

In the present case, the Magistrate has discharged the accused only because he ordered for the ''amalgamation'' of the two cases into one and directed that only one of the two cases would proceed. As per the provisions of Section 253 stated above, the Magistrate could not have discharged three of the accused persons in the complaint case on the above reason.

The G.R. Case was proceeding only against'' one accused and for offences under Sections 454 and 380, Indian Penal Code whereas in the complaint case four accused persons were being prosecuted for an offence u/s 380, Indian Penal Code. Mrs. Padhi, the learned Counsel for the opposite parties, admits that both the cases arise out of the same occurrence. Therefore, the Magistrate could and should have clubbed together both the cases for the purpose of convenient trial, but he could not have amalgamated one case with the other as has been ordered by him in this case. By clubbing together of cases their individuality is not affected. After clubbing together cases of this nature for the convenience of trial, the Court has to record two separate orders in both the two cases. In this connection the observations of their Lordships of the Supreme Court in paragraph 7 of their decision reported in Kheitrabasi Samal v. State of Orissa 85 (1970) C.L.T. (S.C.), may be seen.

On hearing the counsel appearing for both the parties, I deem it proper, in the facts and circumstances of this case, to direct that the complaint case and the G.R. Case should be clubbed together and tried simultaneously. The order directing discharge of the three accused persons in the complaint case is, therefore, set aside and both the cases are directed to be clubbed together and tried by the same Magistrate in accordance with law.

The impugned order is set aside. The revision accordingly is allowed. The L.C.R. be sent back to the Court below who should proceed with the trial of the two cases in accordance with law and the directions and observations made above.