Oli Mohamed and Others vs Amamullah and Others

S.A. Kader, J.—This is a petition to quash the proceedings of Judicial Second Class Magistrate, Sirkali in H.R.C. No. 13 of 1982 on his file committing the Petitioners to take their trial before the court of Session.

On the complaint given by the first Respondent the sub Inspector of Police , Anai-karanctasram in Thanjavur District has filed a charge sheet against the Petitioners in the Court of the Judicial First Class Magistrate, Mayiladuthurai for offences under Ss.147, 148, 326 and 323, I.P.C, and the same is pending trial in that Court as C.C. No. 978 of 1982. Meanwhile the first Respondent has given a private complaint before the Judicial Second Class Magistrate in respect of the same occurrence for offences under Ss. 147, 148, 341, 325 and 307, I.P.C. The learned Judicial Second Class Magistrate found that the offences were triable exclusively by a Court of Session and committed the accused to take their trial before the Court of Session and it is now pending before the Assistant Sessions Judge, Mayiladuthurai. Because of the pendency of the Police case in C. C. No. 978 of 1982 on the file of the Judicial First Class Magistrate, Mayiladuthurai, the Petitioner accused seeks the quashing of the above committal proceedings.

Section 210 , Crl. P.C, lays down the procedure to be followed when there is a complaint case and police investigation in respect of the same offences. According to this section, 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. Sub-S.(2) of Section 210 lays down that 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. Unfortunately, the learned Judicial Second Class Magistrate has not followed the provisions of Section 210, Code of Criminal Procedure Instead he has committed the accused straight away to take their trial before the Court of Session. The procedure adopted by the Judicial Second Class Magistrate is clearly erroneous .But, it will serve no purpose if the order of committal is set aside and the case remanded back to the file of the Judicial Second Class Magistrate to proceed in accordance with S. 210, Code of Criminal Procedure For, the Police have already completed the investigation and filed the charge sheet in the Court of the Judicial First Class Magistrate, Mayiladuthurai.

In the circumstances, I am giving the following directions. The Assistant Sessions Judge at Mayiladuthurai shall deal with the case committed to him u/s 221 or 228 (1)(a) or 228(1)(b) Crl. P.C. If he discharges the accused u/s 227, Crl. P.C., that is the end of the private complaint given by the first Respondent. If he proceeds u/s 228 (1)(a) in the opinion that the case is not exclusively triable by a Court of Session, the Chief-Judicial Magistrate, to whom the case will be transferred for trial, shall withdraw C.C. No. 978 of 1982 from the file of the Judicial First Class Magistrate, Mayiladuthurai and try together both the cases as if both the cases were instituted on a police report as per S. 210(2) of the Code of Criminal Procedure If the Assistant Sessions Judge proceeds u/s 228 and frames charges against the accused before him the Court of Session shall withdraw C.C. No. 978 of 1982 from the file of the Judicial First Class Magistrate, Mayiladuthurai and transfer it to the Court of the Assistant Sessions Judge to be tried together as if both the cases were instituted on a police report. With these directions, the petition fails and is dismissed.