Lakhi Ram. vs Sito Devi and anr.

M.M. Punchhi, J. (Oral)

The petitioner approaching this Court to invoke its inherent powers under section 482 of the Code of. Criminal Procedure (hereinafter called the Code) is an unfortunate father of a young married girl who met an unnatural death in the house of her husband. On coming to know of the incident he lodged the first information report No. 91 dated 151992 at Police Station Sardulgarh, complaining therein that the four in mates of the house being Surinder Kumar, the husband, Sito Devi, motherinlaw, Jagan Nath, fatherinlaw and Parshotam Dass Munim, had done her death. While the matter was under investigation the petitioner filed a complaint on 2.8.1982 before a learned Judicial Magistrate First Class having jurisdiction In paragraph 7 thereof he mentioned that he had reported the matter to the police with regard to the same incident. On 1.10.1981 the police submitted a challan to the learned Magistrate wanting to prosecute only Sito Devi, the motherinlaw of the unfortunate girl for an offence section 306 or the Indian Penal Code. The learned Magistrate committed Sito Devi to the Court of Session to stand trial for offence under section 306 of the Indian Penal Code. The same was assigned to Shri Gurdial Singh, Second Additional Sessions Judge, Bhatinda. There the trial proceeded and presently is at the stage of defence. The petitioner at that juncture moved the Sessions Judge, Bhatinda, under sections 406,1409 of the Code. requesting him to withdraw the case from that court and try it only when the complaint case stands committed to the Court of Session and along therewith. In the alter native it was prayed that the case be sent over to the First Additional Sessions Judge. The request was declined by the impugned order and hence this petition.

At the motion hearing, section 210 of the Code was pressed into service. It was sought to be argued that the purpose provided in section 210 of the Code was to cover up a situation when the complaint had been filed earlier and a police challan later on the same subject matter. The Court in that event was required to take up the matter together. In the same strain it was sought to be argued that it should not make a difference if the challan had been presented earlier and the complaint had been filed later. That stand was based obviously on a misgiving, as it now transpires that the instant complaint had been filed at a time when investigation was pending and the challan had been submitted after to Vie filing of the complaint. The question posed thus does not arise though the section has been pressed into service in another manner. Since even that question was not raised in the Court below, I would not permit it to be raised at this juncture especially when much water has flown under the bridges.

Yet to be fair to the learned counsel for the petitioner, section 210 of the Code need only be noticed for the limited purpose. Subsection (1) of section 210 of the Code permit, staying of the proceedings started on a private complaint if it comes to the knowledge of the Magistrate that the police investigation is in progress in respect of an offence already taken cognizance of That obviously is a preventive measure. It is to avoid, as far as possible, taking cognizance or the offence again and to avoid separate trials for the same offence. It is for this purpose that a Magistrate has been authorised to. call for a report on the matter from the police officer conducting the investigation. Under subsection (2) thereof if a report is made by the investigating police officer under section 173 or the Code, and on such report cognizance is taken by the Magistrate against any person who is an accused in the complaint case, the Magistrate can proceed with them together as if both cases were instituted on a police report. This is Curative measure. But here in the instant case neither the preventive measure was undertaken not was the curative measure adopted. As said before the complaint remained pending before the learned Magistrate and possibly at the preliminary stage for, no process was issued against the accused. The police challan on the other hand, as said before, found its way in a regular trial which is at the defence stage. For such a situation the Parliament has in its wisdom again provided a curative step under section 319 of the Code. It provides that where in the course of any inquiry into or trial of an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed. The court in that instance has ample power to issue process against any person to face trial for an offence which he appears to have committed, provided such steps arc justified from the evidence appear on the record of the trial. This is the remedy so far as the persons other than the accused facing trial is concerned. With regard to the accused facing trial, the corrective step is to cause amendment/addition of a charge if the offence appears to be of a higher degree or different in nature. In either case it is from the evidence that the Court has to come to the view to take such a step. None of those steps has admittedly been taken in the instant case. Obviously the effort of the petitioner to keel) stayed the trial at this stage cannot be permitted as it would tend to perpetrate injustice to the accused facing trial.

In this view of the matter I am of the considered view that no case for interference by invoking the inherent powers of this Court under section 482 of the Code, has been made out. Accordingly this petition fails and is hereby dismissed.

8th February, 1983.

Sd/ M. M. Punchhi,

Judge.