Vinod Dixit vs Satish Mishra and others

P.K. Jaiswal, J.

Shri R.K. Sharma, Advocate for petitioner.

Shri D.R. Sharma, Advocate for respondent No. 1.

Shri V.S. Chaturvedi, PP for respondent No. 3/State.

Heard.

Petitioner-complainant filed this petition u/s 482, Criminal Procedure Code challenging the order dated 7-7-2008 passed by the Special Judge (Dakaiti), Bhind, in private complaint by which the learned Sessions Judge stayed the private complaint on the ground that in respect of the same offence Crime No. 43/08 is pending prior to the date of filing of the complaint and directed to submit the report u/s 173, Criminal Procedure Code.

The undisputed fect in this case is that on 2-4-2008 at about 9.30 p.m., the wife of the petitioner was murdered. The petitioner on the same day, i.e. 2-4-2008, lodged a report at Police Station Lahar. The report was lodged on the same night at 12.45 a.m. which was registered vide Crime No. 43/08 on 3-4-2008 (Annexure P/2) against the respondents No. 1 and two other unidentified persons.

The petitioner on 7-7-2008 filed a private complaint under sections 302 and 394 of Indian Penal Code read with sections 11/13 of the MPDVPK Adhiniyam 1981. In para 4 of the private complaint it is averred that the accused are related with the resourceful person and therefore no action has been taken against them. Trial Court by the impugned order stayed the proceedings of the private complaint in exercise of the power conferred u/s 210 of Criminal Procedure Code. As per section 210 of Criminal Procedure Code where a private complaint is filed and the Magistrate receives information that the Police is also investigating the same case, he shall stay the proceedings before him (whether it is at the stage of enquiry or trial) and call for a report of the Police Officer. He may then deal with the private complaint and the case which arises out of the Police report together.,

Here in the present case, the trial Court has not taken cognizance of the offence nor Final Report has been filed. It is not the case of the petitioner that no investigation is pending before the Police Station, Lahar and in the private complaint cognizance is taken by the said Judge.

In order to attract section 210, there must be a complaint case pending inquiry or trial. During the course of such inquiry or trial in the complaint case, it must be made to appear to the Special Judge that an investigation by the Police is in progress in relation to the offence which is the subject-matter of the enquiry or trial held by the Special Judge in the complaint case. It is under these circumstances that the Special Judge has to stay the proceedings in the inquiry or trial and call for a report from the Police Officer conducting the investigation.

On perusal of the impugned order, it is clear that the learned Special Judge directed the Investigating Officer to submit report u/s 173 of Criminal Procedure Code. Provision for stay of the proceedings of the complaint case is only for the purpose of calling for a report in the matter from the Police Officer conducting the investigation to examine whether or not to proceed with the complaint case. If the said report is not submitted within a reasonable time, then only the petitioner can assail the impugned order on the ground that the concerned Police Officer does not act exclusively in the matter and or does not submit his report to the Court at an early date. In the present case, learned Special Court while staying the proceedings of the complaint case directed the Investigating Officer to submit report under sub-section (1). In case the report is not submitted by the Investigating Officer within reasonable time, the Court can proceed with the complaint case

Section 210 requires procedure to be followed when there is a complaint case and police investigation in respect of the same offence and reads thus :

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 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 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, elate 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 provision of this Code.

Bare reading of the above provision makes it clear that during an inquiry or trial relating to a complaint case, if it is brought to the notice of the Magistrate that an investigation by the police is in progress in respect of the same offence, he shall stay the proceedings of the complaint case and call for the record of the police officer conducting the investigation.

The object of enacting section 210 of the Code is three fold :

(i) it is intended to ensure that private complaints do not interfere with the course of justice;

(ii) it prevents harassment to the accused twice; and

(iii) it obviates anomalies which might arises from taking cognizance of the same offence more than once.

The Joint Committee of Parliament observed :

It has been brought to the notice of the committee that sometimes when serious case is under investigation by the police, some of the persons file complaint and quickly get an order of acquittal either by cancellation or otherwise. Thereupon the investigation of the case becomes infructuous leading to miscarriage of justice in some cases. To avoid this, the Committee has provided that where a complaint is filed and the Magistrate has information that the police is also investigating the same offence, the Magistrate shall stay the complaint case. If the police report (under section 173) is received in the case, the Magistrate should try together the complaint case and the case arising out of the police report. But if no such case is received the Magistrate would be free to dispose of the complaint case. This new provision is intended to secure that private complaints do not interfere with the course of justice.

(emphasis supplied)

It is thus clear that before section 210 can be invoked, the following conditions must be satisfied :-

(i) There must be a complaint pending for inquiry or trial;

(ii) Investigation by the police must be in progress in relation to the same offence;

(iii) A report must have been made by the police officer u/s 173; and

(iv) The Magistrate must have taken cognizance of an offence against a person who is accused in the complaint case.

In the impugned order passed by the Special Judge, no such, contention appears to have been raised by the petitioner, no such finding is recorded by the Special Judge.

For the abovementioned reasons, I am of the considered view that the learned Special Judge has committed legal error in passing the impugned order, staying the private complaint and directing the Investigating Officer to submit report u/s 173, Criminal Procedure Code. The decision cited by the learned counsel for the petitioner in the case of Rosy and Another Vs. State of Kerala and Others, will not be applicable in the present facts and circumstances of the case. Learned counsel for the parties are not in a position to make any positive statement whether the report u/s 173, Criminal Procedure Code has been filed or not. If it is found that no report is filed by the Investigating Officer as directed vide order dated 7-7-2008, the learned Special Judge is directed to consider the application and on being satisfied with the conditions as mentioned in Para 10 of the impugned order, on the basis of the material placed on record, passed a reasoned order staying the proceedings of the complaint case and direct the Investigating Officer to submit the report to the Court at an early date within a particular time and on failure to file a report within a reasonable time, the Court can proceed with the complaint case.

With the aforesaid, this petition is allowed and disposed of.