S.M. Abdur Rahim vs State of Bihar and Another

P.S. Sahay, J.—The short point, which has to be decided in this case, is that when a case is pending on a plice report against some persons, thereafter a complaint is filed for the same occurrence against some persons and the complaint case is sent to the court where the police case is pending u/s 210 of the Code of Criminal Procedure (hereinafter to be referred as the Code) whether the Magistrate has the power to issue processes against those newly added accused persons whose name do not find place in the police report.

The facts, giving rise to this application are that; on the basis of the Fardbeyan lodged by one Sheik Shahid against Abdul Razak a case was registered and after investigation charge sheet was submitted against him on which a cognizance was taken under Sections 279 and 304 of the Indian Penal Code. Prior to that a complaint was filed by Mehrunnisa, wife of the deceased, againgst three more persons including the petitioner, A report was called for from the Police if any case was pending relating to the same occurrence and a report was received that charge sheet had already been submitted against one person. The learned Magistrate, by his order dated 24-4-1976, transferred the case to the Court of the Magistrate where the Police case was pending. On receipt of the records of the complaint case the learned Magistrate after looking into the records, by his order dated 13-10-1977, issued process against the three accused persons u/s 210 Sub-clause (2) of the Code and further ordered that since both the cases relate to the same occurrence, it will be treated and proceed as a police case. Being aggrieved by the aforesaid order, the petitioner alone has moved this Court.

Learned Counsel, appearing on behalf of the petitioner, has contended that the complaint case has been transferred to the Court where the Police case was pending and, the complaint case looses its identity and, therefore, the Magistrate has no right to summon the petitioner. He has further submitted that the summons could only have been issued on fresh materials, that is after examination of some witnesses, as envisaged u/s 319 of the Code, learned Counsel, appearing on behalf of the State, has, on the other hand, submitted that cognizance is taken of the offence and not of the offenders and, therefore, the Magistrate was fully justified in summoning the petitioner and Ors. who are named in the petition of complaint because of the specific allegations made against them. When this case came up for hearing before me, I felt some difficulty as it was a case of first impression and, therefore, by order dated 19-6-1982, I referred it to Division Bench and that is how it has come before us.

Learned Counsel, appearing on behalf of the petitioner, has placed reliance on a Bench decision of this Court in the case of Harbans Singh Vs. Daroga Singh and Others, . where it has been held that when a complaint case is amalgamated with the case instituted on a charge sheet, the effect of such order is that the complaint case stands merged with the police case and looses its identity. That case was under Old Code, 1898, as amended in the year 1955 and the question arose in an appeal against acquittal u/s 417(3) of that Code, on an objection raised by the respondents that the complainant had no locus standi to file the appeal after the merger of the complaint case with the police case. Put, in view of the new provision, Section 210 of the Code, the position is now quite different. The reason for introducing this provision was that it was brought to the notice of the Joint Committee of the Parliament that some times when a serious case was being investigated by the Police some-one filed a petition of complaint and quickly got an order of acquittal either by collusion or otherwise with the result that the investigation of the Police case became infructuous, thus leading to miscarriage of justice. In order to obviate this position this new provision was enacted so that private complaint do not interfere with the course of justice. It will be useful to quote Section 210 of the Code which is as follows:

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 enquiry 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 enquiry 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 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.

(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.

Learned Counsel has also placed reliance on a decision of a single Judge of this Court in the case of Ramchandra Prasad v. Ramsharan Sharma 1979 B.L.J.R. 520, in which two cases, one on police report and other on the complaint, were amalgamated and ordered to be tried together u/s 210 Sub-clause (2) of the Code and the complainant moved the Sessions Judge and the order of the learned Magistrate was set aside and it was ordered to be tried separately. Then the matter came to this Court and it was held that the order of the Sessions Judge did not contravene the provisions of Section 210 Sub-clause (2) of the Code and, therefore, the case instituted on the complaint was not liable to be stayed under Sub-section (1) of the aforesaid Section. This decision do not help the petition at all, In the case of State Vs. Har Narain etc., . it has been held that when a cognizance of an offence is taken against any person on the basis of police report the first ingredient of Section 410(2) is satisfied. The second ingredient is that cognizance of an offence should be taken against any person accused in the complaint case. If both the ingredients are satisfied the result will be that both the cases will be taken as a case Instituted on a police report, This decision instead of helping the petitioner goes against him. From plain reading of Section 210 sub-clans (2) of the Code the following sentence is rather significant.

The Magistrate shall inquire into or try together the complaint case arising out of the police report as if both the cases were instituted on a police report.

(Italicized for emphasis by me.)

The word "inquiry" has been defined u/s 2(A) of the Code which means every enquiry other than a trial conducted under this Code by Magistrate or Court. Police report has been defined u/s 2(r) of the Code which means a Police report forwarded by a Police Officer to a Magistrate under Sub-section (2) of Section 172 of the Code. Therefore, if a complaint case is transferred u/s 210(2) of the Code before a Magistrate where a police case is pending and the purpose of such transfer is both for enquiry and trial. From the order it is clear that the Magistrate perused the petition of complaint and after applying his mind issued process against the petitioner. He was perfectly justified in doing so in view of the provision of law mentioned above. The contention of the learned Counsel that such power could be exercised after examining witnesses and only on fresh materials as required u/s 319 of the Code cannot be accepted. In the instant case we are concerned only with the provisions laid down u/s 210 and not u/s 319 of the Code. I am supported by a decision of the Orissa High Court in the case of Chintamani Parida and Others Vs. Jadumani and Another, . where his lordship), after considering and discussing(3) has held that persons who are not named in the police report but named in the petition complaint can be proceeded against and both the cases should be tried together as a police case. On a careful consideration, I am of the opinion that the learned Magistrate was perfectly justified in summong those persons, who were named as accused in the petition of complaint, after the case was transferred to him u/s 210 of the Code.

Thus, there is and merit in this application and it is, accordingly, dismissed. The occurrence relates to the year 1975 and the Magistrate should dispose of the same with utmost despatch. Let the lower court records be sent down at once.