Naresh Kumar vs Gopal Krishan

V. K. Jhanji, J.

This petition has been directed against order dated 13.12.1994 whereby Additional Sessions Judge, Patiala has allowed the revision petition filed by the complainant and has directed the trial Court to apply its mind to the request of the complainant and examine the witnesses, if any, in strict compliance with the order dated 9.5.1994 of the Hon''ble Supreme Court of India.

In brief, the facts are that a complaint was filed by Gopal Krishan, respondent No. 1 against Naresh Kumar, petitioner, under Sections 420/471 I.P.C. on 25.3.1986. A complaint on these very allegations was also made to the S.D.M. as Administrator, Municipal Committee, who on 14.2.1987 got a case registered against Naresh Kumar and his brother Sunil Kumar under Sections 420, 408, 471, 120B, I.P.C. P.S. Kotwali, Nabha. On 17.7.1987, the learned Magistrate issued process in complaint against Naresh Kumar. Police too filed report under Section 173 Cr.P.C. on 8.2.1988 against Naresh Kumar as well as his brother Sunil Kumar. On 16.7.1988, challan case as well as complaint case were clubbed together and the Magistrate ordered that both the petitions be tried together. On 13.1.1988, the A.P.P. made a statement closing the evidence and on the statement made by A.P.P. the court, by order, closed the evidence of the prosecution. Before the statement of the accused could be recorded or he could be given an opportunity to lead evidence in defence, an application was filed by Gopal Krishan saying that the witnesses named in the complaint have not been examined and thus a request was made that they be examined. On 25.1.1990, a request made by the complainant was allowed and the revision preferred against that order was dismissed by the Additional Sessions Judge, Patiala vide order dated 20.1.1993. Against this order, Criminal Misc. No. 2063 of 1993 was preferred in this Court but the same was dismissed on 18.1.1994. The judgment of this Court is reported in 1994(2) Recent C.R. 406 (Naresh Kumar v. State of Punjab ). The petitioner challenged the order of this Court by way of Special Leave Petition in the Supreme Court and the Supreme Court was pleased to pass the following order :

"If the learned Prosecutor chooses, he may examine the additional witnesses with the permission of the Court notwithstanding the fact that such witnesses are suggested by the complainant, in view of Section 210(2) of the Criminal Procedure Code. The S.L.P. is disposed of accordingly."

The order of the High Court was thus modified and it was left to the prosecutor to examine the additional witnesses with the permission of the Court notwithstanding that such witnesses were suggested by the complainant. This order was passed in terms of Section 210 Cr.P.C. After the judgment of the Apex Court in S.L.P. preferred by the petitioners, A.P.P. made a statement on 10.6.1994 closing the evidence and not choosing to examine the additional witnesses. On 14.6.1994, Gopal Krishan i.e. respondent, again made an application saying the order dated 10.6.1994 passed by the trial Court closing the evidence is derogatory to the mandate as recorded by the High Court on 18.1.1994 and based on gross misunderstanding and misinterpretation of the order passed by the Supreme Court of India. He thus prayed that he be permitted to summon the witnesses as directed by the High Court. This application was dismissed by the Judicial Magistrate 1st Class, Nabha vide order dated 17.9.1994 as he was of the view that the matter has already been disposed of by the Apex Court and cannot be reagitated by the complainant. Against the order of the Judicial Magistrate, respondent preferred the revision petition before the Additional Sessions Judge, who vide order dated 13.12.1994 has set aside the order of the Judicial Magistrate and directed the Judicial Magistrate to decide the matter afresh.

After hearing the learned counsel for the parties, I am of the view that the learned Additional Sessions Judge has not correctly interpreted the order of the Apex Court. The Apex Court in its order has specifically made a mention of Section 210 Cr.P.C. and the mention was made because Section 210 Cr.P.C. provides as to how the Court has to proceed when there is a complaint case and police investigation in respect of the same offence. In a situation, where there are two complaints; one arising out of a private complaint and the other arising out of police report, in respect of the same offence, it is always open to the Court to amalgamate the two proceedings as only one case because two parallel proceedings would amount to trying the accused twice for the same offence. Subsection (2) of Section 210 Cr.P.C., a mention of which has been made by the Apex Court in its order passed in S.L.P. reads as under :

"Section 210:

(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."

It was for the A.P.P. to examine the additional witnesses, even though those witnesses may have been suggested by the complainant. Since the A.P.P. thought fit not to examine the additional witnesses and gave statement, closing evidence of the prosecution, the trial Magistrate was justified in dismissing the application filed by the complainant. The learned Additional Sessions Judge interfered in the order of the trial Magistrate on the basis of judgment of this Court in Naresh Kumar''s case (supra), without realizing that the said judgment was modified and merged in the order of the Apex Court.

Faced with this situation, counsel for the complainant contended that both the cases, i.e. complaint case and challan case, were not clubbed together but were ordered to be tried together and therefore, there is no bar for the complainant to examine the witnesses named in the complaint. He also contended that the allegations made in the complaint are all altogether different than the one made in the police challan case. For this, he placed reliance upon judgments in AIR 1985 S.C. 404 and 1987 Criminal Law Journal 1225. The submissions made by counsel for the complainant are without any merit. At no stage, it was the case of the complainant that both the cases have not been clubbed together rather the Additional Sessions Judge in his order, impugned in this petition has stated in para 11 that "originally the trial Magistrate clubbed together the police challan and the criminal complainant." The other contention of the counsel for the complainant cannot be allowed to be raised as it could be urged before the order had been passed by the Apex Court in S.L.P. The complainant cannot be allowed to reagitate the matter time and again.

Accordingly, the petition is allowed, order of Additional Sessions Judge is set aside and that of the trial Magistrate is maintained. The matter is remanded to the trial Magistrate who is directed to proceed with the same in accordance with law.