Delhi District Court
Sh. Rajeev vs State on 31 March, 2021
IN THE COURT OF SH. DINESH KUMAR SHARMA
PRINCIPAL DISTRICT & SESSIONS JUDGE
PHC: NEW DELHI
In the matters of :
Revision Petition (Crl.) Nos. (i) 8512/16 (Old No. 01/15)
(ii) 8507/16 (Old No. 02/15) &
(iii) 8506/16 (Old No. 03/15)
Transfer Petition (Crl.) No. 131/16 (Old No. 79/14)
(i) Criminal Revision No. 8512/16 (Old No. 01/15)
1. Sh. Rajeev
2. Sh. Rakesh
Both S/o Sh. Rattan Lal Sharma
325, VPO Samalka, New Delhi
3. Sh. Rattan Lal Sharma
S/o Late Sh. Prahlad
325, VPO Samalka, New Delhi ...Revisionists
Versus
1. State
2. Arun @ Annu
S/o Sh. Lalit
326, VPO Samalka, New Delhi ...Respondents
AND
(ii) Criminal Revision No. 8507/16 (Old No. 02/15)
Sh. Narender Kumar
S/o Sh. Mohan Lal
326, VPO Samalka, New Delhi ...Revisionist
Crl. Rev. Nos. (i) 8512/16 (Old No. 01/15)
(ii) 8507/16 (Old No. 02/15) &
(iii) 8506/16 (Old No. 03/15)
TP (Crl.) No. 131/16 (Old No. 79/14) Page No. 1 of 28
Versus
1. The State
2. Rattan Lal S/o Late Sh. Prahlad Singh
3. Rajeev Kumar S/o Rattan Lal
4. Rakesh Kumar S/o Rattan Lal
5. Rajni W/o Rajeev Kumar
6. Neeru W/o Rakesh Kumar
7. Kalpana W/o Sunil Kumar ...Respondents
(R2 to R7 are R/o 325, VPO Samalka, New Delhi)
AND
(iii) Criminal Revision No. 8506/16 (Old No. 03/15)
Sh. Arun Sharma
S/o Sh. Lalit Kumar
326, VPO Samalka, New Delhi ...Revisionist
Versus
1. The State
2. Rattan Lal S/o Late Sh. Prahlad Singh
3. Rajeev Kumar S/o Rattan Lal
4. Rakesh Kumar S/o Rattan Lal
5. Rajni W/o Rajeev Kumar
6. Neeru W/o Rakesh Kumar
7. Kalpana W/o Sunil Kumar ...Respondents
(R2 to R7 are R/o 325, VPO Samalka, New Delhi)
Crl. Rev. Nos. (i) 8512/16 (Old No. 01/15)
(ii) 8507/16 (Old No. 02/15) &
(iii) 8506/16 (Old No. 03/15)
TP (Crl.) No. 131/16 (Old No. 79/14) Page No. 2 of 28
AND
(iv) Transfer Petition (Crl.) No. 131/16 (Old No. 79/14)
Sh. Narender Kumar
S/o Sh. Mohan Lal
326, VPO Samalka, New Delhi ...Petitioner
Versus
The State ...Respondent
JUDGMENT
1. This order shall dispose of three Revision Petition (Crl.) Nos. 8512/16 (Old No. 01/15), 8507/16 (Old No. 02/15) and 8506/16 (Old No. 03/15) and Transfer Petition (Crl.) No. 131/16 (Old No. 79/14).
2. The facts in brief are that on 03.09.2013, an incident took place between the parties over the construction of a road in the vicinity of the houses of both the parties. Both the parties levelled allegations against each other of having been assaulted and caused injuries. This led to registration of the two cross FIR. FIR No. 193/2013 u/s 307/34 IPC was lodged at the statement of complainant Sh. Rajeev. The complainant named Narender Kumar, Arun @ Annu and Devender Bhardwaj as accused in the FIR. Subsequently, within short span, another Crl. Rev. Nos. (i) 8512/16 (Old No. 01/15)
(ii) 8507/16 (Old No. 02/15) &
(iii) 8506/16 (Old No. 03/15) TP (Crl.) No. 131/16 (Old No. 79/14) Page No. 3 of 28 FIR No. 194/2013 u/s 323/341/34 IPC was lodged on the statement of Sh. Arun @ Annu, in which the complainant named Neeru, Kalpana, Rakesh, Rajni, Rattan Lal and Rajeev as an accused. The Hon'ble High Court in Tr. P. (Crl.) No. 49/2013 & Crl. M.A. No. 13874/2013 vide order dated 16.09.2013 was pleased to direct that the proceedings arising out of the aforesaid two FIRs shall be dealt with by the District & Sessions Judge, New Delhi District at Patiala House Courts Complex, New Delhi. By virtue of this order of the Hon'ble High Court, the proceedings got transferred to the New Delhi District.
3. While the matter rested thus, Sh. Arun Sharma filed a criminal complaint against Sh. Rattan Lal, Sh. Rajeev Kumar, Sh. Rakesh Kumar, Mrs. Rajni, Mrs. Neeru and Mrs. Kalpana u/s 307/308/326/324/341/506 r/w Section 34 & 109 IPC on 24.02.2014. In this complaint case bearing No. 2690/1/14, an application u/s 210 CrPC was filed on which the Ld. MM called the status report for 11.03.2014. On 11.03.2014, the Ld. MM after perusal of the status report observed that the FIR has already been registered and the matter is pending investigation and in view of the same, consigned the matter to Record Room Crl. Rev. Nos. (i) 8512/16 (Old No. 01/15)
(ii) 8507/16 (Old No. 02/15) &
(iii) 8506/16 (Old No. 03/15) TP (Crl.) No. 131/16 (Old No. 79/14) Page No. 4 of 28 till filing of the chargesheet, however, granted liberty to the complainant to proceed with the matter as per law after filing of the chargesheet.
4. The police filed the Final Report in FIR No. 194/2013 on 26.03.2014 before the Ld. MM04, Dwarka Courts, New Delhi, which was later on came on the board of this Court by virtue of the order of the Hon'ble High Court in Tr. P. (Crl.) No. 49/2013 & Crl. M.A. No. 13874/2013 dated 16.09.2013. It is pertinent to mention here that the Ld. MM04, Dwarka Courts, New Delhi vide order dated 09.04.2014 inter alia directed that the complaint case be tagged with the Final Report to be placed before this Court.
5. In the meanwhile, the police also filed the charge sheet in FIR No. 193/2013 u/s 307/34 IPC against accused Narender Kumar, Arun @ Annu and Devender Bhardwaj on 07.04.2014. This chargesheet also by virtue of the order in Tr. P. (Crl.) No. 49/2013 & Crl. M.A. No. 13874/2013 dated 16.09.2013, was placed before this Court.
6. My Ld. Predecessor vide order dated 22.04.2014, assigned the case file of FIR No. 193/2013 to the Court of Ld. Crl. Rev. Nos. (i) 8512/16 (Old No. 01/15)
(ii) 8507/16 (Old No. 02/15) &
(iii) 8506/16 (Old No. 03/15) TP (Crl.) No. 131/16 (Old No. 79/14) Page No. 5 of 28 CMM, New Delhi for compliance of provision of Section 207 CrPC, and also assigned the case file of FIR No. 194/2013 to the Ld. CMM, New Delhi with the direction to proceed with the matter in accordance with law. It is pertinent to mention here that vide order dated 22.04.2014, it was noticed that the complaint u/s 200 CrPC has already been filed by the complainant before the closure report.
7. In case FIR No. 194/2013, the complainant party filed a protest petition and the the Ld. CMM, New Delhi vide order dated 31.10.2014 took cognizance for the offence u/s 323/341/34 IPC against accused Rajeev, Rattan Lal and Rakesh and summoned them to face trial.
8. In case FIR No. 193/2013, after the committal proceedings, vide order dated 22.08.2014, the matter was committed by the Ld. CMM, New Delhi and the same was marked to Ld. ASJ03, New Delhi. In the said case, the accused persons put in their appearance and the matter was fixed for arguments on charge.
9. Both the parties have challenged the impugned order passed by the Ld. CMM, New Delhi dated 31.10.2014. Sh.
Crl. Rev. Nos. (i) 8512/16 (Old No. 01/15)
(ii) 8507/16 (Old No. 02/15) &
(iii) 8506/16 (Old No. 03/15) TP (Crl.) No. 131/16 (Old No. 79/14) Page No. 6 of 28 Narender Kumar and Sh. Arun Sharma, the complainant party, in FRI No. 194/2013 have challenged the impugned order vide their Revision Petition (Crl.) Nos. 8507/16 (Old No. 02/15) and 8506/16 (Old No. 03/15) on the ground that the Ld. CMM, New Delhi has fallen into grave error by summoning only accused Rajeev, Rattan Lal and Rakesh. The grievance of the revisionist in both the revision petitions is twofold, firstly the Ld. CMM has ignored the procedure prescribed u/s 210 CrPC and secondly, the Ld. CMM has erroneously not proceeded against all the accused persons u/s 307/308/326/324/341/506 r/w Section 34 & 109 IPC. The revisionists in this case are also aggrieved of the fact that the IO has deleted Section 308 IPC, which was clearly attracted in this case. Thus, the revision petition No. 8507/16 (Old No. 02/15) and 8506/16 (Old No. 03/15) can be summarized to say that the impugned order has been challenged on the ground that the procedure u/s 210 CrPC has not been followed and the Ld. CMM has summoned only accused Rajeev, Rattan Lal and Rakesh for the lesser offences despite pendency of a criminal complaint on record against Rajeev, Rattan Lal and Rakesh and others.
Crl. Rev. Nos. (i) 8512/16 (Old No. 01/15)
(ii) 8507/16 (Old No. 02/15) &
(iii) 8506/16 (Old No. 03/15) TP (Crl.) No. 131/16 (Old No. 79/14) Page No. 7 of 28
10. The Revision Petition (Crl.) No. 8512/16 (Old No. 01/15) has been filed by Rajeev and Rakesh challenging the impugned order dated 31.10.2014 on the ground that the police had rightly filed the closure report and the Ld. CMM, New Delhi has committed a grave error by summoning the revisionists for the offence u/s 323/341/34 IPC. Thus, the grievance of the revisionists can be summarized by saying that the Ld. CMM, New Delhi has fallen into grave error by summoning the revisionists despite no material available against them.
11. Besides the above, a Transfer Petition (Crl.) No. 131/16 (Old No. 79/14) is also pending, which was filed on 10.10.2014 by Sh. Devender Bhardwaj from the complainant party in FIR No. 194/2013 stating that the case bearing FIR No. 193/2016 has inadvertently been assigned to the Ld. ASJ03, New Delhi, whereas the Hon'ble High Court in Tr. P. (Crl.) No. 49/2013 & Crl. M.A. No. 13874/2013 vide order dated 16.09.2013 was pleased to direct that the proceedings arising out of the aforesaid two FIRs shall be dealt with by the District & Sessions Judge, New Delhi District at Patiala House Courts Complex, New Delhi.
Crl. Rev. Nos. (i) 8512/16 (Old No. 01/15)
(ii) 8507/16 (Old No. 02/15) &
(iii) 8506/16 (Old No. 03/15) TP (Crl.) No. 131/16 (Old No. 79/14) Page No. 8 of 28
12. The basic questions involved in the present case are as follows:
i) Whether Section 210 CrPC has been correctly followed in the present proceedings; and
ii) The scope of jurisdiction for taking cognizance and summoning of an accused by the Court of the Ld. Metropolitan Magistrate.
13. I consider that in the present case, appreciation of Section 210 CrPC is very important and in fact is the genesis of the controversy between the parties and, therefore, this Court proceeds first to discuss the same.
14. Section 210 CrPC provides as under:
"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 Crl. Rev. Nos. (i) 8512/16 (Old No. 01/15)
(ii) 8507/16 (Old No. 02/15) &
(iii) 8506/16 (Old No. 03/15) TP (Crl.) No. 131/16 (Old No. 79/14) Page No. 9 of 28 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."
15. Bare perusal of Section 210 CrPC makes it clear that 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 inquiry or trial) and call for report of the police officer. Section 210 CrPC is intended to guard against any contradiction between the investigating agency and judicial proceedings. It is necessary to mention that the provisions of Section 210 CrPC are mandatory in nature. In Birendra Kumar Sharma alias Birendra Kuer Vs. The State of Bihar & Ors., 2000 CrLJ Crl. Rev. Nos. (i) 8512/16 (Old No. 01/15)
(ii) 8507/16 (Old No. 02/15) &
(iii) 8506/16 (Old No. 03/15) TP (Crl.) No. 131/16 (Old No. 79/14) Page No. 10 of 28 145, it was inter alia held as under:
"8. .....This is a newly inserted provision introduced for the first time in the Code of 1973 and completely takes care of the present case, namely, where both the complaint petition as well as the F.I.R. has been lodged with respect to the same offence and the former is earlier in point of time. It provides that when a complaint is filed and it appears to the Magistrate during the enquiry or trial that the police is also investigating the same offence, the Magistrate shall stay the complaint case and call for a report from the police officer on the matter. If a police report under Section 173 of the Code is received, and on such police report the Magistrate takes cognizance of another offence against any person who is an accused in the complaint case, both the complaint and the case arising out of the police report shall be tried together by the Magistrate. In other words, as has been held in a learned single Judge judgment of the Gauhati (Gujarat) High Court reported in 1983 Cri LJ 62 (Shanti Bhai v. Madhukant), that where during the course of enquiry or trial of a complaint case it appears to the Magistrate that investigation by the police is in progress with respect to the subjectmatter of the complaint case, then he has to stay the matter and call for a report of the police and then he has to try together the complaint case and the case arising out of the police report. It has been held by a learned single Judge of the Delhi High Court in its judgment reported in 1980 Cri LJ NOC 25 (Satish Kumar v. The State) that the provisions of Section 210 of the Code are inapplicable in cases where the complaint petition Crl. Rev. Nos. (i) 8512/16 (Old No. 01/15)
(ii) 8507/16 (Old No. 02/15) &
(iii) 8506/16 (Old No. 03/15) TP (Crl.) No. 131/16 (Old No. 79/14) Page No. 11 of 28 is later in point of time. It has further been held that the provisions of Section 210 of the Code are mandatory."
16. It was further inter alia held as under:
"8.1 It is thus manifest that the object underlying Section 210 of the Code is that when the offence in the complaint case and the police case are identical, they should be tried together to avoid unnecessary multiplicity of proceedings. The conditions for applicability of Section 210 are:
(a) that there should be a case instituted on a complaint pending enquiry or trial,
(b) the investigation by the police should be in progress in relation to the same offence,
(c) the complaint should be earlier in point of time.
I have no doubt that the present case is fully covered by Section 210 of the Code which applies during the course of trial also of the complaint case i.e. in the postcognizance stage also. The provisions are mandatory."
17. Thus, the provisions of Section 210 CrPC are mandatory in nature. In Kalyan & Ors. Vs. State of UP & Ors., 1990 CrLJ 1658, it was inter alia held as under:
"5. The right of a complainant to agitate the matter through a complaint cannot be taken away by filing a charge sheet by the Investigating Officer under some Crl. Rev. Nos. (i) 8512/16 (Old No. 01/15)
(ii) 8507/16 (Old No. 02/15) &
(iii) 8506/16 (Old No. 03/15) TP (Crl.) No. 131/16 (Old No. 79/14) Page No. 12 of 28 different sections. It follows, therefore, that the right of the magistrate to summon the accused under some other sections than under which the accused have been chargesheeted is fully secured by the provisions of CrPC. This power of the Magistrate is a salutary power and the purpose behind it appears to be that no injustice is done at the investigation level. Therefore, the summoning order dt. 741989 which was based upon the material produced by the complainant does not call for interference. Similarly, the revisional order also is quite in accord with law and has to be upheld.
This writ petition, therefore, must fail insofar as quashing of these two orders are concerned."
18. It is pertinent to mention here that in old CrPC, there was no provision corresponding to Section 210 CrPC. The provision has been introduced in the new CrPC on the recommendation of the Joint Select Committee of Parliament which, in its report, had set out the objective thus:
"78. ... It has been brought to the notice of the Committee that sometimes when a 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 Crl. Rev. Nos. (i) 8512/16 (Old No. 01/15)
(ii) 8507/16 (Old No. 02/15) &
(iii) 8506/16 (Old No. 03/15) TP (Crl.) No. 131/16 (Old No. 79/14) Page No. 13 of 28 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 complainants do not interfere with the course of justice."
19. The Hon'ble Supreme Court in Sankaran Moitra Vs. Sadhna Das, 2006 (4) SCC 584, inter alia held as under:
"76. A 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.
77. The object of enacting Section 210 of the Code is threefold:
(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 arise from taking cognizance of the same offence more than once."
Crl. Rev. Nos. (i) 8512/16 (Old No. 01/15)
(ii) 8507/16 (Old No. 02/15) &
(iii) 8506/16 (Old No. 03/15) TP (Crl.) No. 131/16 (Old No. 79/14) Page No. 14 of 28
20. In Ashok Chawla & Ors. Vs. CBI, Crl. M.C. 4120/2016, DOD 08.08.2019, the Hon'ble High Court of Delhi while dealing with the question of 210 CrPC, inter alia held as under:
"The argument that violation of section 210 Code of Criminal Procedure does not vitiate the proceedings in the facts of the present case as both the complaint and State case stand committed to the Court of Sessions, has no merit. In case, a charge sheet is presented under section 173 Code of Criminal Procedure and the Magistrate, on the basis of the complaint without taking into consideration the report under Section 173 Code of Criminal Procedure, on the same set of allegations, comes to the conclusion that no offence is made out, the same is liable to cause prejudice to the complainant, whereas, in case, a cancellation report is submitted in the FIR and the Magistrate without taking into consideration the cancellation report comes to the conclusion that a prima facie case is made out, the same is likely to prejudice the accused. Thus, ignoring the pendency of the investigation in an FIR, shall prejudice one of the two parties in either of the two situations. As such, the violation of Section 210 Code of Criminal Procedure will vitiate the proceedings. Hence, the provisions of section 210 Code of Criminal Procedure requiring the Magistrate to stay the proceedings of an enquiry or a trial and call for a report on the matter from the police officer conducting the investigation was equally mandatory."
Crl. Rev. Nos. (i) 8512/16 (Old No. 01/15)
(ii) 8507/16 (Old No. 02/15) &
(iii) 8506/16 (Old No. 03/15) TP (Crl.) No. 131/16 (Old No. 79/14) Page No. 15 of 28
21. In Madanlal Vs. State of Rajasthan & Ors., 1998 CrLJ 597, the Magistrate took cognizance of the offence u/s 366 CrPC on the basis of the police report submitted u/s 173 CrPC and did not take cognizance of the offence punishable u/s 376 IPC. The Magistrate also on the basis of the police report, submitted u/s 173 CrPC, proceeded against one person only. In this case, it was inter alia held as under:
"11. I have carefully considered the rival arguments. It is not disputed that First Information Report was lodged on 16th February, 95 and the private complaint was filed by Madan Lal on 10th March,
95. It is not disputed that on 10th March, 95 i.e. the date on which the private complaint was filed, the police investigation on the basis of the First Information Report dated 16th February, 95 was in progress. Therefore, the provisions of Section 210 Cr.P.C. were applicable. Section 210 Cr.P.C. provides that 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 subjectmatter 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 Crl. Rev. Nos. (i) 8512/16 (Old No. 01/15)
(ii) 8507/16 (Old No. 02/15) &
(iii) 8506/16 (Old No. 03/15) TP (Crl.) No. 131/16 (Old No. 79/14) Page No. 16 of 28 police officer conducting the investigation.
12. Subsection (2) of Section 210 provides that 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.
13. Subsection (3) of Section 210 provides 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.
14. A perusal of subsection (2) and subsection (3) of Section 210, Cr.P.C. shows that if a police investigation is in progress, the Magistrate has to stay the proceedings instituted otherwise than on police report and call for the report of the investigation from the police and on submission of the report of investigation, if the Magistrate takes cognizance of an offence against the accused person, then the complaint case and the case instituted on the police report shall be tried together provided cognizance has been taken of the same offence and same accused have been proceeded against in both of them. In view of subsection (3) of Section 210 it is very clear that if on the basis of the police report the Magistrate does not take cognizance of the offence disclosed by the complaint or on the basis of police Crl. Rev. Nos. (i) 8512/16 (Old No. 01/15)
(ii) 8507/16 (Old No. 02/15) &
(iii) 8506/16 (Old No. 03/15) TP (Crl.) No. 131/16 (Old No. 79/14) Page No. 17 of 28 report, the Magistrate does not proceed against any person, but on the basis of complaint, such person can be proceeded against the complaint cannot be amalgamated with the police report.
15. In the instant case, the learned Magistrate took cognizance of the offence under Section 366 CrPC on the basis of the police report submitted under Section 173 CrPC. He does not appear to have taken cognizance of the offene punishable under Section 376 IPC on the basis of the police report. It is also evident from the record that on the basis of the police report submitted under Section 173 CrPC only one person namely Krishan Lal was proceeded against. No other person was proceeded against in the case instituted on police report. In view of those facts and the provisions of subsection (3) of Section 210 CrPC only a part of the complaint filed by Madan Lal was liable to be amalgamated with the police report. The whole of the complaint could not be amalgamated with the police report. In other words the complaint filed by Madan Lal so far as it alleged the commission of offence under Section 376 IPC could not be amalgamated with the police report. Similarly, the complaint filed by Madan Lal so far as it alleged the commission of offene by person other than Kishan Lal, it could not be amalgamated with the police report. As a result of above discussion, it must be held that the complaint filed by Madan Lal continued to remain pending to the extent mentioned above and, therefore, the directions given by the learned Sessions Judge vide order dated 15th May, 95 were binding on the learned Judicial Magistrate and he was bound to pass orders in accordance with Crl. Rev. Nos. (i) 8512/16 (Old No. 01/15)
(ii) 8507/16 (Old No. 02/15) &
(iii) 8506/16 (Old No. 03/15) TP (Crl.) No. 131/16 (Old No. 79/14) Page No. 18 of 28 law."
22. Bare perusal of the above judgment would make it clear that upon filing of a police report, the complaint case and the case instituted on the police report shall be tried together, provided cognizance has been taken on the same offence and same accused have been proceeded against in both of them. If the Court has not taken cognizance of any offence or has not proceeded against any person on the basis of the police report, such person has to be proceeded on the basis of the complaint and the complaint cannot be amalgamated with the police report.
23. It is also pertinent to mention here that Section 210 CrPC is attracted only when the police investigation is in progress at the time of filing of the complaint case. If the police has neither registered the case nor started investigation, the question of calling report report from the police about investigation would not arise. It is also a settled proposition that if the Magistrate has already taken cognizance on the charge sheet being filed by the police before filing of the private complaint, Section 210 CrPC will not be applicable. Similarly, if the Court has taken cognizance on the private complaint and Crl. Rev. Nos. (i) 8512/16 (Old No. 01/15)
(ii) 8507/16 (Old No. 02/15) &
(iii) 8506/16 (Old No. 03/15) TP (Crl.) No. 131/16 (Old No. 79/14) Page No. 19 of 28 subsequently the chargesheet has been filed by the police, the provisions of Section 210 CrPC will not be applicable. In order to attract Section 210 CrPC, there must be a complaint case pending enquiry or trial held by the Magistrate and during such enquiry or trial, in such case, it must be appearing that the investigation by the police is in progress in relation to the offence, which was the subject matter of the enquiry or trial held by the Magistrate. It is also pertinent to mention here that the provision for staying the proceedings in the complaint case is not to stay the complaint case indefinitely. The 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.
24. It is also necessary to refer Section 210(2) & (3) CrPC. In regard to common accused persons in the chargesheet and complaint case, the provisions of Section 210(2) CrPC shall apply and in regard to noncognizance of any offence or non summoning of any person on the basis of the police report by the Magistrate, Section 210(3) CrPC shall apply.
25. The correct reading of Section 210(1) & (2) would be that if a private complaint is filed while the investigation in the Crl. Rev. Nos. (i) 8512/16 (Old No. 01/15)
(ii) 8507/16 (Old No. 02/15) &
(iii) 8506/16 (Old No. 03/15) TP (Crl.) No. 131/16 (Old No. 79/14) Page No. 20 of 28 police case is pending, the Magistrate shall stay the proceedings. If the report relates to the same accused persons as arrayed in the complaint case and they have been chargesheeted for the same offence for which the private complaint has been filed, 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.
26. However, Section 210(3) CrPC is exception to Section 210(1) and (2). Section 210(3) CrPC shall apply where (i) the facts are common to the police report, and (ii) the Magistrate does not take cognizance on the police report of the offences alleged in the complaint. Thus, suppose a complaint case has been filed for the serious offence against ten accused persons and the Magistrate calls for a report from the police and the police files report only against the three accused persons out of the ten accused persons and for the lesser offences, the correct course would be that the Magistrate will take the police report on record and proceed with the complaint case and shall afford an opportunity to the complainant to prove his case in accordance with law. Perusal of Section 210(3) CrPC also indicates the Crl. Rev. Nos. (i) 8512/16 (Old No. 01/15)
(ii) 8507/16 (Old No. 02/15) &
(iii) 8506/16 (Old No. 03/15) TP (Crl.) No. 131/16 (Old No. 79/14) Page No. 21 of 28 same. It says that if the police report does not relate to any accused and if the Magistrate does not take cognizance, he will proceed with the trial in accordance with the provisions of the Code.
27. Conjoint reading of Section 210(1) and (3) would make it clear that the procedure prescribed is entirely different for the above said two situations. If the police report is in regard to the same accused persons and for the same offence for which the private complaint was filed, the procedure followed would be as prescribed u/s 210(2) CrPC i.e. the Magistrate will try together the complaint case and the case arising out of the police report. However, if the police report does not relate to any accused in the complaint case and the Magistrate does not take cognizance, the Magistrate shall proceed with the inquiry or trial.
28. In the present case, the complaint case was filed on 25.02.2014 against Sh. Rattan Lal, Sh. Rajeev Kumar, Sh. Rakesh Kumar, Mrs. Rajni, Mrs. Neeru and Mrs. Kalpana u/s 307/308/326/324/341/506 r/w Section 34 & 109 IPC and as per the status report filed on 11.03.2014, the matter was pending investigation. The Final Report in FIR No. 194/2013 was filed in Crl. Rev. Nos. (i) 8512/16 (Old No. 01/15)
(ii) 8507/16 (Old No. 02/15) &
(iii) 8506/16 (Old No. 03/15) TP (Crl.) No. 131/16 (Old No. 79/14) Page No. 22 of 28 the Court on 26.03.2014. Thus, when the private complaint was filed by Sh. Arun Sharma, the investigation was pending with the investigating agency and only after filing of the private complaint, the final report was filed on 26.03.2014.
29. I consider that in this case, since beginning, the correct procedure has not been followed by the Ld. MM and subsequently by the Ld. CMM. The Ld. MM has fallen into grave error by consigning the matter to Record Room till the filing of the chargesheet as indicated vide order dated 11.03.2014. The stay of the proceedings in the complaint case is only for calling for the report from the police. Section 210 CrPC cannot be interpreted to mean that the complaint case will be stayed indefinitely and the file will be consigned to Record Room. After filing of the chargesheet in FIR No. 194/2013 on 26.03.2014, the correct course for the Ld. CMM was to adopt the procedure u/s 210(3) CrPC.
30. The investigating agency concluded in the final report that FIR No. 194/2013 is a counter blast to FIR No. 193/2013 and since the complainant party included two lawyers, this FIR was lodged to exert pressure on the proposed accused persons.
Crl. Rev. Nos. (i) 8512/16 (Old No. 01/15)
(ii) 8507/16 (Old No. 02/15) &
(iii) 8506/16 (Old No. 03/15) TP (Crl.) No. 131/16 (Old No. 79/14) Page No. 23 of 28 The police preferred to file report u/s 169 CrPC, which enables the police to release the accused, if there is no evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate.
31. The impugned order dated 31.10.2014 cannot sustain in the eyes of law. The complaint case has actually been forgotten by the Court of Ld. CMM while passing the impugned order. The procedure followed by the Ld. MM and Ld. CMM is in utter violation of the procedure prescribed u/s 210(3) CrPC. The impugned order dated 31.10.2014 by which the revisionists in Revision Petition (Crl.) No. 8512/16 (Old No. 01/15) were summoned, is also liable to go. The matter is remanded back to the Court of Ld. CMM, New Delhi. The Ld. CMM, New Delhi shall in the present case revert back to the stage when the final report was filed in FIR No. 194/2013 and then shall proceed with the matter as provided u/s 210(3) CrPC in accordance with law. Accordingly, the order dated 31.10.2014, which has been assailed in all the three Revision Petition (Crl.) Nos. 8512/16 (Old No. 01/15), 8507/16 (Old No. 02/15) and 8506/16 (Old No. 03/15) is set aside. The parties are directed to appear before the Crl. Rev. Nos. (i) 8512/16 (Old No. 01/15)
(ii) 8507/16 (Old No. 02/15) &
(iii) 8506/16 (Old No. 03/15) TP (Crl.) No. 131/16 (Old No. 79/14) Page No. 24 of 28 Court of Ld. CMM, New Delhi on 12.04.2021.
32. In regard to plea in Revision Petition (Crl.) Nos. 8507/16 (Old No. 02/15) and 8506/16 (Old No. 03/15) regarding deletion of Section 308 IPC by the IO, I consider that the same has now no relevance, as the Ld. CMM on the basis of the procedure as prescribed u/s 210(3) CrPC would decide the question as to the summoning or nonsummoning of the accused persons for the offence alleged in the private complaint case bearing No. 2690/1/14.
33. In respect of Transfer Petition (Crl.) No. 131/16 (Old No. 79/14), I consider that in view of the judgment of the Hon'ble High Court in Tr. P. (Crl.) No. 49/2013 & Crl. M.A. No. 13874/2013 dated 16.09.2013, the matter qua FIR No. 193/2013 pending in the Court of Ld. ASJ03, New Delhi be withdrawn therefrom and the same shall be tried by this Court. TCR lying in this Court is taken on record of this Court. Copy of the judgment be sent to the Court of Ld. ASJ03, New Delhi.
34. There is another material point in this case. As has been discussed above, there are two crosscases i.e. FIR Nos. 193/2013 and 194/2013. The chargesheet in FIR No. 193/2013 Crl. Rev. Nos. (i) 8512/16 (Old No. 01/15)
(ii) 8507/16 (Old No. 02/15) &
(iii) 8506/16 (Old No. 03/15) TP (Crl.) No. 131/16 (Old No. 79/14) Page No. 25 of 28 u/s 307/34 IPC has already been filed, which is presently pending before the Court of Ld. ASJ03, New Delhi and the same is being withdrawn therefrom and is assigned to this Court in Transfer Petition (Crl.) No. 131/16 (Old No. 79/14).
35. In order to avoid any future confusion, it is necessary to refer to the law laid down in Nathi Lal & Ors. Vs. State of UP & Anr., 1990 (Supp) SCC 145, wherein it was inter alia held as under:
"We think that the fair procedure to adopt in a matter like the present where there are cross cases, is to direct that the same learned Judge must try both the cross cases one after the other. After the recording of evidence in one case is completed, he must hear the arguments but he must reserve the judgment. Thereafter, he must proceed to hear the cross case and after recording all the evidence he must hear the arguments but reserve the judgment in that case. The same learned Judge must thereafter dispose of the matters by two separate judgments. In deciding each of the cases, he can rely only on the evidence recorded in that particular case. The evidence recorded in the cross case cannot be looked into. Nor can the judge be influenced by whatever is argued in the cross case. Each case must be decided on the basis of the evidence which has been placed on record in that particular case without being influenced in any manner by the evidence or arguments urged in the cross case. But both the judgments must be Crl. Rev. Nos. (i) 8512/16 (Old No. 01/15)
(ii) 8507/16 (Old No. 02/15) &
(iii) 8506/16 (Old No. 03/15) TP (Crl.) No. 131/16 (Old No. 79/14) Page No. 26 of 28 pronounced by the same learned Judge one after the other."
36. It was followed in the case of State of M.P. Vs. Mishrilal (Dead) & Ors., 2003 [1] JCC 590, wherein it was inter alia held as under:
"Undisputedly, accused Mishrilal lodged the report to the police vide Ex.D8 over the same incident happened on 5.3.1987, in which he had clearly stated the injuries were sustained by him and his son Madhusudan at the hands of prosecution party. It is also not disputed that on the strength of the complaint lodged by Mishrilal, investigation was also carried out and challan was filed namely crime case no.52/87 under Sections 147, 148, 149 and 324 IPC against the prosecution party which is pending for disposal before the learned Judicial Magistrate First Class. In the said challan, the prosecution party is stated to be an aggressor.
37. Thus, in view of the law laid down in Nathi Lal (Supra) and Mishrilal (Supra), both the cases i.e. FIR Nos. 193/2013 and 194/2013 are to be tried by the same Court. Thus, the Court of Ld. CMM, New Delhi after following the procedure u/s 210 CrPC, if reaches to the conclusion that the accused persons are to be summoned u/s 204 CrPC then he shall commit Crl. Rev. Nos. (i) 8512/16 (Old No. 01/15)
(ii) 8507/16 (Old No. 02/15) &
(iii) 8506/16 (Old No. 03/15) TP (Crl.) No. 131/16 (Old No. 79/14) Page No. 27 of 28 the case to this Court for trial in accordance with law.
38. With the above observations, all the three Revision Petition (Crl.) Nos. 8512/16 (Old No. 01/15), 8507/16 (Old No. 02/15) and 8506/16 (Old No. 03/15) and Transfer Petition (Crl.) No. 131/16 (Old No. 79/14) stand disposed of. TCR, if any, along with copy of the judgment be sent to the Ld. Trial Court and thereafter, revision files be consigned to Record Room.
DINESH Digitally signed
by DINESH
KUMAR KUMAR SHARMA
Date: 2021.03.31
SHARMA 16:47:56 +0530
Announced in the (Dinesh Kumar Sharma)
open Court on Principal District & Sessions Judge
31.03.2021. PHC: New Delhi
Crl. Rev. Nos. (i) 8512/16 (Old No. 01/15)
(ii) 8507/16 (Old No. 02/15) &
(iii) 8506/16 (Old No. 03/15) TP (Crl.) No. 131/16 (Old No. 79/14) Page No. 28 of 28