Uttarakhand High Court
C482/27/2014 on 20 February, 2019
Author: Manoj K. Tiwari
Bench: Manoj K. Tiwari
C482 No.27 of 2014 Hon'ble Manoj K. Tiwari, J.
Mr. Sanjay Raturi, Advocate for the applicant.
Mr. S.K. Chaudhary, Deputy Advocate General for the State of Uttarakhand/ respondent no. 1.
Mr. Amar Shukla, Advocate for respondent no. 2.
Heard learned counsel for the parties. By means of this criminal misc.
application filed under Section 482 Cr.P.C., applicant is challenging the order dated 21.12.2012 passed by the learned Sessions Judge, Tehri Garhwal in Criminal Revision No. 63 of 2010 and the consequential order dated 07.11.2013 passed by the learned Chief Judicial Magistrate, Tehri Garhwal.
Facts, in brief, are that an application under Section 156 (3) Cr.P.C. was made by respondent no. 2 against the applicant alleging therein that, during his tenure as a Principal of Inter College, Thauldhar Tehri Garhwal, applicant embezzled huge amount of public money, therefore, a case be registered against him. Pursuant to the order passed by the Chief Judicial Magistrate, an F.I.R. was lodged against the applicant under Section 406, 420, 409, 408, 467, 468 & 471 I.P.C. The police, after investigation, submitted the Final Report on 30.04.2009. Against the Final Report, respondent no. 2 filed a Protest Petition. Learned Chief Judicial Magistrate, Tehri Garhwal accepted the said Final Report vide order dated 01.09.2010 and rejected the Protest Petition filed by the respondent no.
2. Thus, feeling aggrieved, respondent no. 2 filed a Criminal Revision before learned Sessions Judge, Tehri Garhwal, which was registered as Criminal Revision No. 63 of 2010. The said Criminal Revision was partly allowed by the learned Sessions Judge, Tehri Garhwal vide judgment & order dated 21.12.2012. In compliance of the said order dated 21.12.2012, learned Chief Judicial Magistrate, Tehri Garhwal passed a consequential order on 07.11.2013, whereby he summoned the applicant. Order dated 21.12.2012 passed by the learned Sessions Judge, Tehri Garhwal as well as the order dated 07.11.2013 passed by the learned Chief Judicial Magistrate, Tehri Garhwal are under challenge in this criminal misc. application filed under Section 482 Cr.P.C.
Heard learned counsel for the parties and perused the record.
Learned counsel for the applicant submits that the judgment rendered by the Revisional Court is unsustainable in the eyes of law for the reason that, for application of Section 210 Cr.P.C., condition precedent is that there should be a complaint case as well as police investigation in respect of same offence which, according to him, is not the case here. He further submits that, pursuant to the application filed under Section 156 (3) Cr.P.C., an F.I.R. was filed which, after investigation, resulted in submission of Final Report. He further submits that, after acceptance of Final Report, there was no proceeding whatsoever pending against the applicant. He, therefore, submits that the Revisional Court erred in law in directing the learned Magistrate to proceed under Section 210 Cr.P.C. by treating the Protest Petition as a complaint. In order to buttress his argument, learned counsel for the applicant relied upon paragraph nos. 16 & 17 of the judgment rendered by the Punjab & Haryana High Court, in the matter of "Vipin Aggarwal and another Vs. State of Haryana & another", reported in (2015) 1 RCR (Cri) 173. Paragraph nos. 16 & 17 of the said judgment read as under:
"16. The case could even otherwise not be allowed to continue for the reason of non-compliance of section 210 (2) Cr.P.C. Once the final report under section 173 Cr.P.C. was before the Judicial Magistrate Ist Class and the Magistrate had chosen not to accept the cancellation report, the only course with the Magistrate was to try the complaint case and State Case together as if instituted by the State. Section 210 (1) and (2) mandates as under:
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".
17. As such proceedings which are continuing as a complaint case is an abuse of process of law and cannot be permitted to continue."
Section 210 (1) Cr.P.C. is extracted below for ready reference:
"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."
From a plain reading of Section 210(1) of Cr.P.C. what emerges is 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. He may then deal with the private complaint and the case which arises out of the police report together. The said provision is intended to guard against obtaining snap judgments and collusion.
In order to attract this provision, there must be a complaint case, pending inquiry or trial. During course of such inquiry or trial in the complaint case, it must be made to appear to the Magistrate that an investigation by the Police is in progress in relation to the offences, which is subject matter of the inquiry or trial held by him in the complaint case.
Learned counsel for respondent No. 2fairly concedes that this is not the case here, inasmuch as, there was no complaint case filed against the applicant and the F.I.R., which was registered under Section 156(3) of Cr.P.C., resulted in submission of final report. In such view of the matter, Section 210(1) of Cr.P.C. is not attracted, therefore, the order passed by learned Revisional Court directing learned Magistrate to treat the protest petition filed by respondent No. 2 as complaint case and adopted the procedure laid down under Section 210 of Cr.P.C. is not sustainable.
Consequently, the criminal miscellaneous application is allowed. The impugned order dated 21.12.2012 passed by learned Sessions Judge, Tehri Garhwal is quashed. The consequential order dated 07.11.2013 passed by learned Chief Judicial Magistrate, Tehri Garhwal is also quashed. However, this order will not preclude respondent No. 2 from availing the remedy available to him under law.
(Manoj K. Tiwari, J.)
Arpan 20.02.2019