Punjab-Haryana High Court
Harjit Singh And Another vs Darshan Singh And Another on 24 August, 2012
Author: Daya Chaudhary
Bench: Daya Chaudhary
Criminal Revision No.1367 of 2011 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Criminal Revision No.1367 of 2011 (O&M)
Date of decision: 24.08.2012.
Harjit Singh and another ..Petitioners
Versus
Darshan Singh and another ..Respondents
CORAM: HON'BLE MRS. JUSTICE DAYA CHAUDHARY
Present: Mr. A.S. Gill, Advocate,
for the petitioners.
Mr. K.S. Dhillon, Advocate,
for respondent No.1.
Mr. Vishal Munjal, Addl. A.G., Punjab,
for respondent No.2 - State.
Daya Chaudhary, J.
The present revision petition has been filed challenging the order dated 25.03.2011 passed by Additional Sessions Judge, Jalandhar, vide which, revision petition filed by respondent No.1 has been allowed and order dated 01.11.2010 passed by Additional Chief Judicial Magistrate, Jalandhar was set-aside without hearing the petitioners.
Briefly, the facts of the case are that FIR No.139 dated 19.05.2008 was got registered by respondent No.1 against the petitioners. Subsequently, allegations in the FIR were found false by the Police and Kalandra under Section 182 IPC was filed before the learned Judicial Magistrate, Petitioner No.1-Harjit Singh also filed Criminal Revision No.1367 of 2011 (O&M) 2 private complaint under Sections 379, 406, 427 and 506 read with Section 34 IPC and the trial Court after recording preliminary evidence took cognizance of the offence and passed an order, for the stay of proceedings of Kalandra and clubbing of both the petitions together. Respondent No.1 filed revision petition to set-aside the order dated 01.11.2010 passed by Additional Chief Judicial Magistrate, Jalandhar, vide which, the trial Court has attached the proceedings of Kalandra under Section 182 IPC along with the complaint, filed by petitioner No.1. The revision petition was allowed vide order dated 25.03.2011 and the order passed by Additional Chief Judicial Magistrate, Jalandhar was set-aside but it was also mentioned in the order that the proceedings under Section 182 IPC cannot be stayed and the Kalandra cannot be clubbed with the complaint.
The order dated 25.03.2011 passed by Additional Sessions Judge, Jalandhar is the subject matter of challenge in the present revision petition.
Learned counsel for the petitioners submits that the complaint filed under Sections 379, 406, 427 and 506 read with Section 34 IPC is already pending in the Court and proceedings under Section 182 IPC cannot be moved further till the complaint is pending adjudication. The revision petition filed by respondent No.1 has been accepted by the Additional Sessions Judge, Jalandhar without issuing any notice to the petitioners and the order dated 01.11.2010 passed by Additional Chief Judicial Magistrate, Jalandhar Criminal Revision No.1367 of 2011 (O&M) 3 has also been set-aside. Learned counsel for the petitioners further submits that the petitioners were the effected party and were accused in the Kalandra and by dispensing the service of the petitioners, the impugned order has been passed. Even the revision petition was also filed after the lapse of period of limitation and the same has also been condoned. Learned counsel also submits that the impugned order passed by the Revisional Court is contrary to the principles of natural justice. Learned counsel for the petitioners has also relied upon the judgments Uma Nath Pandey and others vs. State of U.P. And Anr., 2010 (6) RCR (Criminal) 141, Gyan Chand Jain vs. Anand Bafane, 2011 (2) RCR (Criminal) 20, Prashat Goel vs. State and another, 2007(3) RCR (Criminal) 539, Devarapalli Lakshminarayana Reddy and others vs. V. Narayana Reddy and others, AIR 1976 Supreme Court 1672 (1), Tarlochan Singh vs. State of Punjab, 2007 (3) RCR (Criminal) 791, Babita vs. State of Punjab and another, 2008(4) RCR (Criminal) 516, Harbans Singh vs. State of Punjab and anr. 1991(3) RCR (Criminal) 113 and the judgment of this Court in case Criminal Misc. No. M-8925 of 2010 titled-Harjit Singh vs. State of Punjab decided on 30.11.2011, in support of his arguments.
Learned counsel for respondent No.1 submits that since the petitioners were not summoned in the complaint, question of issuing any notice to the petitioners does not arise. There is no infirmity in the order passed by the Revisional Court. Learned counsel for respondent No.1 has also relied upon the judgment in Criminal Revision No.1367 of 2011 (O&M) 4 Kishan Lal and others vs. State and others, 1999 Crl. L.J. 4493.
Heard the arguments of learned counsel for the petitioners as well as counsel for respondent No.1 and have also perused the impugned order as well as other documents available on the file.
Admittedly, the petitioners filed a complaint to Senior Superintendent of Police, Jalandhar against respondent No.1 and FIR No.203 dated 23.10.2008 was registered under Sections 379 and 506 IPC. During investigation, the allegations mentioned in the complaint were found to be false and proceedings under Section 182 IPC were initiated against the petitioners. Additional Chief Judicial Magistrate, Jalandhar vide order dated 01.11.2010 attached the proceedings under Section 182 IPC with the complaint filed by the petitioners. Order dated 01.11.2010 was challenged before the Additional Sessions Judge, Jalandhar by way of filing revision petition and on 25.03.2011, following order was passed: -
"xxx xxx xxx
After hearing the learned counsel for the
revisionist, learned Additional P.P. and also going through the record I have arrived at a conclusion that although it is a settled law that if on similar allegations cognizance is taken by the court on a private complaint, which were earlier found false by the police in the police case, the learned court can stay the proceedings under section 182 IPC but in the facts and circumstances of present case, when cognizance is yet to be taken and the learned Judicial Magistrate has not yet made up its Criminal Revision No.1367 of 2011 (O&M) 5 mind to summon the revisionist of having committed such offence on the allegations is question, which were found false by the police, such order passed by the learned Judicial Magistrate is incorrect and illegal and therefore, the same is not sustainable in the eyes of law at this stage, when cognizance is not yet been taken by the learned Judicial Magistrate in the private criminal complaint of the Respondent against the revisionist. The proceedings under Section 182 IPC cannot be stayed and such Kalandhara cannot be clubbed with the said complaint. Hence, such order is held to be perverse and therefore set aside by way of allowing this revision. The learned trial Court to proceed with both the cases, at this stage, separately according to law. Trial Court file along with copy of judgment be sent back.
Revision file be consigned to the record room."
The order dated 25.03.2011 passed by Additional Sessions Judge, Jalandhar has been challenged mainly on the ground that no notice was given to the petitioners and delay was also condoned. Proceedings under Section 182 IPC cannot be proceeded till the pendency of the complaint. The petitioners are the effected party as impugned order has been passed behind their back, which is against the principles of natural justice.
The provision of amalgamation of two cases is contained in Section 210 Cr.P.C., which is reproduced as under: -
"210. Procedure to be followed when there is a complaint case and police investigation in respect Criminal Revision No.1367 of 2011 (O&M) 6 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 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."
A bare reading of sub-section (1) makes it clear that it is only when private complaint is filed but before completion of the investigation by the police, that the provisions as enshrined under Section 210, Cr.P.C., are attracted. Sub-section (1) provides that in case it appears to the Magistrate during the course of the inquiry or Criminal Revision No.1367 of 2011 (O&M) 7 trial in a private complaint case that investigation is in progress in relation to the offence which is the subject-matter of the inquiry or trial held by him, he shall stay the proceedings and call for a report on the matter from the police officer conducting such investigation. In the instant case, the police had already filed challan in the case and thereafter the private complaint was filed. Therefore, the provisions of sub-section (1) did not apply to the proceedings.
Sub-section (2) provides that if the police also files challan against any person who is an accused in the complaint case pending before him the Magistrate shall try the complaint case as well as the police report together. Thus sub-section (2) envisages the amalgamation of the two cases, but the necessary condition for such amalgamation is that accused in both the cases should be common. In the instant case, the accused in both the cases are different. The persons who had been challaned by the police are not the accused in the private complaint. That being so, there could not be amalgamation of the two cases under sub-section (2).
However, sub-section (3) applies where the Magistrate had stayed the proceedings under sub-section (1). In the instant case, the challan had already been filed and therefore, there was no question of stay of the proceedings of the private complaint.
Cognizance of an offence is taken by a Magistrate under Section 190(1)(a), Cr.P.C. upon receiving the complaint of facts which constitutes such offence. After the Magistrate takes cognizance, he embarks upon enquiry under Chapter 15, Cr.P.C. and Criminal Revision No.1367 of 2011 (O&M) 8 examines the complainant and his witnesses. Under Section 203, Cr.P.C. if after considering the statements on oath of the complainant and of the witnesses and the result of the enquiry or investigation under Section 202, Cr.P.C., the Magistrate is of the opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint. It is obvious that while taking decision on the complaint the Magistrate is required to consider only the complaint, the statements of the complainant and his witnesses recorded under Chapter 15, Cr.P.C. and the result of the enquiry or investigation if any. In the instant case, the learned Magistrate had not sent the complaint for enquiry or investigation to some other person. He, therefore, could consider the statements of the complainant and his witnesses besides the complaint to decide if process was to be issued or complaint was to be dismissed.
It is clear from the provisions of Section 210 Cr.P.C. that the amalgamation of two cases cannot be done if both of them does not relate to the same occurrence.
In the present case, the complaint is still pending and proceedings were initiated under Section 182 IPC. It is clear from the above said provision that amalgamation of the cases can be done in case the parties are same and accused in both the cases are also common. As per sub Section 2, there cannot be amalgamation of two cases as in the present case, accused are different. It is settled law that during the pendency of the complaint, proceedings under Section 182 IPC cannot be initiated. It has been held in Criminal Revision No.1367 of 2011 (O&M) 9 judgment Tarlochan Singh's case (supra) that during the pendency of the complaint on the same set of allegations, proceedings cannot be proceeded under Section 182 IPC.
In Banta Singh vs. State of Haryana, 1995(3) RCR (Criminal) 133, the first information report lodged by the petitioner was found to be false during investigation and he was prosecuted for an offence under Section 182 IPC. The petitioner filed a complaint on the same facts and allegations on which he had made a statement before the Police. The learned Magistrate had summoned the accused for various offences. It was held that the prosecution of the petitioner under Section 182 IPC during the pendency of the complaint was evidently an abuse of process of the Court and the proceedings were quashed.
In State of Punjab vs. Brij Lal Palta, AIR 1969 SC 355, it was held that once a complaint filed by the informant, which is based on the same facts and allegations on which the first information report was registered, is being proceeded with. It was not open to a Magistrate to take cognizance of any offence alleged to have been committed under Section 211 IPC unless there has been proper compliance with the provisions of Section 195(1)(b) Cr.P.C. It was further held that though the offence under Section 182 IPC was distinct from the one under Section 211 IPC, the latter was more serious and may include the offence under the former Section. The Magistrate could take cognizance of an offence under Section 195 (1)(a) Cr.P.C., but it would virtually lead to the circumvention of the Criminal Revision No.1367 of 2011 (O&M) 10 provisions of Section 195(1)(b) Cr.P.C. If proceedings under Section 182 IPC could continue, where the offence disclosed was covered by Section 211 IPC and a complaint was pending which had been filed by the informant on the same facts and allegations as were contained in First Information Report. Similarly, on a parity of reasoning with regard to the offence under Section 211 IPC, no cognizance could be taken by the Magistrate for the alleged offence under Section 193 IPC, which was one of the Sections mentioned in Section 192(1)(b) Cr.P.C.
It is clear that in case, proceedings under Section 182 IPC are allowed to proceed, that would amount to pre-judge the complaint filed by the petitioners. Continuance of proceedings under Section 182 IPC would be an abuse of process of Court.
The Hon'ble Supreme Court in judgment Uma Nath Pandey's case (supra) held that natural justice is the essence of fair adjudication and the purpose of following the principles of natural justice is the prevention of miscarriage of justice. In that case, the revision petition was disposed of by the High Court ex parte without issuing notice to respondents and other parties and case was remitted to High Court to decide afresh after affording opportunity of hearing to the respondents.
The judgment relied upon by learned counsel for respondent No.1 is not applicable in the present revision petition.
Admittedly, in the present case also, complaint is still pending and revision petition filed by respondent No.1 has been Criminal Revision No.1367 of 2011 (O&M) 11 allowed without issuing notice to the petitioners and the impugned order undoubtedly affects the rights of the petitioners. Accordingly, in view of the settled position of law and the discussion as above, the impugned order dated 25.03.2011 passed by learned Additional Sessions Judge, Jalandhar is set-aside and the same is remanded back to consider the matter afresh after issuing notice to the petitioners in the Criminal Revision No.20 of 2011, which will stand restored.
Parties are directed to appear before the Revisional Court on 14.09.2012.
Disposed of accordingly.
24.08.2012 (DAYA CHAUDHARY) neetu JUDGE