Kuldeep Singh And Others vs State Of Uttarakhand And Another

Ravindra Maithani, J

Instant petition under Section 482 of the Code of Criminal Procedure, 1973 (for short, "the Code) has been filed seeking the following reliefs:-

(i) Quash the impugned summoning order dated 6/2/2021 passed by Judicial Magistrate, Sitarganj in Criminal Complaint Case No. 464/2018, Rakhspal Singh Vs. Angrez Singh & ors (Annexure No.5).

(ii) Quash the entire proceedings of Criminal Complaint Case No. 464/2018 Rakhspal Singh Vs. Angrez Singh and ors pending in the court of Judicial Magistrate, Sitarganj (Annexure No.1).

(iii) Issue any other or further order or direction which this Hon'ble Court deems fit and proper in the circumstances of the case."

Facts briefly stated are that the respondent no.2 Rakshpal Singh (hereinafter referred to as "the complainant") filed a complaint under Section 147, 148, 149, 307, 506 IPC against the petitioners, based on which, the proceedings of Criminal Complaint Case No.464 of 2018, Rakshpal Singh Vs. Angrej Singh and others was instituted in the court of Judicial Magistrate, Sitarganj, District Udham Singh Nagar (for short, "the case"). In that case having conducted the inquiry under Section 200 and 202 of the Code, initially by an order dated 03.09.2019, the complaint was dismissed under Section 203 of the Code. This order dated 03.09.2019, passed in the case was challenged by the complainant in Criminal Revision No. 242 of 2019. Rakshpal Singh Vs. State of Uttarakhand and others, in the court of 1st Additional District and Sessions Judge, Udham Singh Nagar (for short, "the revision"). The revision was allowed on 22.12.2020 and the court below was directed to pass an order, in the case, in the light of the observation made in the judgment and order dated 22.12.2020. It is thereafter, on 06.02.2021, the order taking cognizance has been passed in the case, by which, the petitioners have been summoned to answer the accusation under Sections 147, 148, 149 and 302 IPC. This is impugned herein.

Heard learned counsel for the parties and perused the record.

The Court is not reproducing the factual aspects of the incident as to what is the basis of filing the complaint because it is not necessary for the purpose of resolving the instant controversy.

What is important to note is that in his complaint, the complainant at paras 8 and 9, has stated that with regard to the same incident he had earlier filed an application under Section 156 (3) of the Code on which an order for investigation was passed. The investigation was carried out, and after investigation a final report was submitted (final report No. 9 of 2018, Police Station Sitarganj, under Sections 323, 247, 148, 149, 307, 506 IPC). But, the final report has not yet been decided by the court.

Learned counsel for the petitioner would submit that the proceedings of the complaint case and the final report were clubbed and thereafter the first order dated 03.09.2019 was passed in the case.

The Court wanted to know as to how without independently deciding the police report submitted under Section 173 of the Code, a complaint case could be clubbed with the police report.

Learned counsel appearing for the parties have very fairly conceded that if with regard to an incident, the Police report (Final Report in the instant case) is still pending disposal in such an eventuality, until action is taken on the police report, in terms of the cognizance or otherwise, the proceedings of the complaint case could not proceed.

Learned counsel for the petitioners, State as well as respondent no.2 would submit that first and foremost, in the instant case the final report ought to have been independently decided and based on its result the proceedings of the complaint case could have proceeded further.

In fact, an issue with regard to the application of Section 210 of the Code comes into play. This Section is as hereunder:-

"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 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 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 the 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."

A bare perusal of the above provision makes it abundantly clear that as and when during the enquiry or trial of a complaint case, it comes to the notice of the court that the police investigation is also underway with regard to the same incident, the court shall stay the proceedings of the complaint case and seek a report from the police with regard to the investigation. This is what is enumerated under sub-Section (1) of Section 210 of the Code.

Sub Section (2) of 210 of the Code provides for the eventuality when cognizance is taken by the court on a police report against any person, who is also an accused in the complaint case, in such case, according to this Sub-Section the Magistrate shall inquire into and try together the complaint case and the case arising out of the police report as if both the cases were instituted on the police report. This stage has also not come in the instant case because the Magistrate had not taken cognizance on the final report. In fact, the final report had not been disposed till the order summoning the petitioners was passed in the complaint case.

There is third eventuality also which is provided for under sub-Section (3) of the Section 210 of the Code. This is also not the case because the final report has yet not been independently decided.

In view of it, this Court is of the view that order impugned may be set aside with the directions to the learned Magistrate before whom the final report as well as the complaint case are pending, to firstly decide the final report independently in accordance with law. Based on the result of the final report, the complaint case may proceed further in accordance with the provisions as contained under Section 210 of the Code. Accordingly the petition deserves to be allowed.

The petition is allowed.

The impugned summoning order dated 06.02.2021 is set aside. Learned Magistrate is requested to firstly decide the final report independently in accordance with law. Based on the result of the final report, the complaint case may proceed further in accordance with the provisions as contained under Section 210 of the Code.