Ranjit Singh vs State of Haryana

Swatanter Kumar, J.

The present petition under Section 482 of the Code of Criminal Procedure is directed against the order of learned Additional Sessions Judge, Sirsa dated 22.11.1994. On 13.7.1993 in the revenue estate of Mandi Dabwali one Ramesh Kumar was murdered and his brother Des Raj had lodged a report with the police being F.I.R. No. 189 dated 13.7.1993. Case under Sections 148, 149, 302, 120B of Indian Penal Code was registered on the statement of Des Raj. In the statement Des Raj had attributed definite role to the accused stated therein which were there assailants and conspirators. Six persons i.e. Sukhdev Singh, Jeet Singh, Bhola Singh, Kaka Singh @ Hardeep, Gurmeet Singh and Mohinder Singh were named in the F.I.R. The Police had filed a challan but except for Ranjit Singh alias Phula Singh, the police had found that the five other accused were incorrectly named in the F.I.R. and instead the police in its challan introduced the names of Kaka Singh @ Raghubir, Gurdeep Singh, Daljit Singh, Balwinder Singh, Raja Singh and Sher Singh., stated to be guilty of the offence in addition to Ranjit Singh.

Being totally unsatisfied the investigation of the police and presentation of the challan in Court omitting the names of real culprits with a complaint was filed by Des Raj on 31.8.1993. In the complaint six persons were arrayed as accusedrespondents and their names are:

Sukhdev Singh son of Jiwan Singh;

Jeet Singh so of Sukhdev Singh;

Bhola Singh alias Ranjit Singh son of Sukhdev Singh;

Kaka Singh son of Sukhdev Singh;

Gurmit Singh son of Sukhdev Singh;

Mohinder Singh son of Harnam Singh.

The Judicial Magistrtate, Dabwali, summoned the accused through nonbailable warrants and committed the case against all of them to the Court of Sessions for trial in accordance with law. The case on the basis of police report was also committed to the Court of Sessions and was registered as Sessions Case No. 110 of 1993 and on the trial on the basis of the complaint was registered as case No. 139 of 1994. Both the cases were listed before the same Court i.e. the Court of Shri L.N. Mittal, Additional Sessions Judge, Sirsa. Accused Ranjit Singh who was common accused in both the cases filed an application under Section 210 of the Criminal Procedure Code praying that both these cases be amalgamated and tried together by one trial. This application was dismissed by the learned Additional Sessions Judge vide the impugned order against which this petition under Section 482 of the Code has been filed.

The learned trial court framed charge in both the cases against the accused on 22.11.1994 and fixed the case for different dates for trial. In the police case which was numbered as Sessions Case No. 110 of 1993, all the seven accused were charged under Sections 148, 149 and 302 I.P.C. and in the complaint case bearing Sessions Case No. 139 of 1994, all the six accused were also charged under Sections 302, 148 and 149 of Indian Penal Code.

The grievance of the present petitioner Ranjit Singh who is accused in both the cases is that the separate trials will prejudice the right of the petitioner as he would not be able to formulate and modulate his line of defence fairly and would be made to face a different trials. The submission of the learned counsel for the petitioner, in consonance with the prayer in the petition is that both these cases be merged, amalgamated and tried together as one trial. Ths submission of the learned counsel for the respondent on the other hand, is that there are different accused in both the cases and the complaint case instituted by the respondent herein will suffer greatly if both the cases are amalgamated. The counsel for the respondents submits that the accused in these two cases except one are different and consequently different evidence will have to be led. While accusing the investigating agency of manipulating the investigation so as to protect the real culprits, the police has introduced other names who have nothing to do with the occurrence in question.

The provisions dealing with such situations in the Criminal Procedure Code are Sections 210 and 223 of the Code. While relying upon the provisions of Subsection (2) Section 210 the learned counsel for the petitioner has submitted that both these cases should be treated as if instituted on a police report and consequently, amalgamated. It will be relevant to reproduce the provisions of Section 210 of the Code:

"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 a 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."

It is clear from the bare reading of the above provisions that the cases which are covered under subsection (2) of Section 210 is indicate similarity of the persons accused in the complaint case as well as in the case instituted on police report. The report submitted to the Court under Section 173 Cr.P.C. and when the Magistrate takes cognizance of any offence upon such report against any person who is an accused in the complaint case, it is in that event alone that the Magistrate shall enquire into or try together the complaint case and the case arising out of the police report as if both were instituted on a police report. Subsection (3) further indicates the intention of the Legislature of not staying the enquiry if the accused are not the same. The police report in the present case relates to different accused, while there are different accused named in the complaint case, though relating to the same occurrence. The Magistrate would proceed with the trial if he had stayed the enquiry or trial earlier in view of the fact that the accused were same in both the cases. The petitioner had lodged an F.I.R. on 13.8.1993 and in this report he had named the assailants and had even attributed definite role to each one of them.

After investigation the Investigating Officer has submitted a report to the Court naming seven accused out of which six person named in the F.I.R. have been left out by the said Investigating Officer. Being unsatisfied with the kind of investigation and the fact that the real accused were going scot free, the present petitioner was compelled to institute private complaint on 31.8.1993 without any unnecessary delay. Six accused in the case instituted on the basis of the police report are the ones who do not find mention in the complaint case and no role has been attributed to them in regard to the occurrence in question. Certainly if the complainant has to prove his case, as stated in the complaint, and which is consistent with the F.I.R. lodged by the complainant party, it cannot derive any support from the other case which has been started on the basis of the police report. The interest of the complainant is bound to be jeopardised because the case which, according to the injured and affected party is true, would stand disproved if the prosecution is able to prove the case instituted on the police report. Thus, there is an inbuilt contradiction between the two cases and they are mutually exclusive, different and distinct from each other. The result is that if both the cases are amalgamated as prayed, it is bound to affect adversely the interests of the respondent before this Court.

The counsel for the petitioner very fairly even conceded before the Court that investigating agency had not discharged its duty fairly and there was element of favouritism in not naming the accused mentioned in the F.I.R in the police report submitted to the Court. Under the provisions of Section 210 of the Code, what is really contemplated is the trying of the cases together which necessarily may not mean amalgamation of cases. Treating of a complaint case as if filed on police report is based on two factors i.e. accused persons are common to both the cases and the that the version sought to be proved should be more or less same though it may not be necessary to mention identical offences in both the cases. These principles are well settled as held in the case of Kadiresan v. Kasim and others, 1987 Crl. L.J. 1225 where relying upon the judgment of the Supreme Court in the Harjinder Singh v. State of Punjab and others, AIR 1985 Supreme Court 404, the Court had granted the relief of trial of the cases together but declined amalgamation of the cases. In another case of Chintamani Parida and others v. Jadumani and another, 1981 Crl. L.J. 541, the High Court of Orissa held that where the chargesheet has already been filed and thereafter a complaint case is instituted, the provisions of Section 210 may not have an application in the strict interpretation of the provisions but the proper course may be that both the cases are tried together but may not be consolidated.

In Harjinder Singh''s case (supra) the facts were some what similar to the present case. In that case, a case was tried on the police report under Sections 302, 307, 342, 440, 149, 148 and 120B of Indian Penal Code and Sections 25 and 27 of the Arms Act. Another case was instituted against the said accured along with some other persons upon a private complaint. Both the cases were committed to the Court of Sessions for trial. After discussing the law and correct interpretation of Sections 210 and 223 of the Code, the Supreme Court held as under:

"The proper cause to adopt is to direct that the two cases should be tried together by the learned Additional Sessions Judge but not consolidated i.e. the evidence should be recorded separately in both the cases one after the other except to the extent that the witnesses for the prosecution who are common to both the cases be examined in one case and their evidence be read as evidence in the other. The learned Additional Sessions Judge should after recording the evidence of the prosecution witnesses in one case, withhold his judgment and then proceed to record the evidence of the prosecution in the other case. Thereafter he shall proceed to simultaneously dispose of the cases by two separate judgments taking care that the judgment in one case is not based on the evidence recorded in the other case."

The test laid down by the Court in the cases of the present kind is that whether the version in two cases is mutually exclusive and materially different. In the present case not, only this principle is satisfied but the case would be to a great extent contradictory to each other. As already noticed, the version of the prosecution if proved is bound to destroy the complaint case and visavis is also equally true. Thus, it will not be permissible in law to amalgamate these two cases.

Further contention of the learned counsel for the petitioner is to take aid from the provisions of Section 223 of the Code. However, the said provisions are also of no aid and assistance to the petitioner before this Court. In the case of Harjinder Singh (supra), the Supreme Court further held as under:

"In our judgment, it is not permissible for the Court under Section 223 of the Code to club and consolidate the case on a police challan and the case on a complaint where the prosecution versions in the police challan case and the complaint case are materially different, contradictory and mutually exclusive."

The counsel for the respondent has also rightly relied upon the case of Bakha Singh v. State of Haryana, 1992(1) R.C.R. 493 where a learned Single Judge of this Court while relying upon a Division Bench judgment held that the joint trial of two different sets of accused is not permissible. There is contradiction between the case of the prosecution and the complaint case as to who has committed the offence and there is no clarity even in this regard. As such it is also not possible to direct the consolidation/common trial of the petitioner and other accused in these two cases under the provisions of Section 223 of the Code.

In view of the discussion above and the fact that the present case falls within the principles enunciated by the Supreme Court in the case of Harjinder Singh (supra) it is directed that these two cases i.e. Sessions case No. 110 of 1993 arising out of F.I.R. No. 189 dated 13.7.1993 and Sessions case No. 139 of 1994 arising out of complaint case be tried together by the learned Additional Sessions Judge, Sirsa without consolidating them. The evidence would be recorded separately in both the cases, one after the other; the complaint case to take precedence. If there are any common witnesses to both the cases and the trial Judge considers it so appropriate, they may be examined and crossexamined in one case and the same evidence be read as evidence in the other case. Separate judgments shall be pronounced by the Court without relying upon evidence in the other case. With these directions, this petition is disposed of. There shall be no order as to costs.