Allahabad High Court
Lal Bahadur @ Shashtri Sharma And 18 ... vs State Of U.P. And Another on 5 August, 2024
Author: Raj Beer Singh
Bench: Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved Neutral Citation No. - 2024:AHC:125626 Court No. - 76 Case :- APPLICATION U/S 482 No. - 12390 of 2018 Applicant :- Lal Bahadur @ Shashtri Sharma And 18 Othres Opposite Party :- State of U.P. and Another Counsel for Applicant :- Rajesh Kumar Singh Counsel for Opposite Party :- G.A.,Brij Bhushan Prasad Shrivastava Hon'ble Raj Beer Singh,J.
1. Heard learned counsel for the applicants, learned counsel for opposite party no. 2 and learned AGA for the State.
2. This application under Section 482 Cr.P.C. has been preferred for quashing of entire proceedings, including summoning order dated 9.2.2018, of Complaint Case No. 533 of 2017 (Bhagwati Sharma Vs. Lal Bahadur @ Shashtri Sharma and others), U/s 147, 148, 149, 379, 427, 504, 449 I.P.C., police station Turkpatti, District Kushinagar, pending in the court of First Additional Civil Judge, (J.D.), Kasya Kushinagar.
3. Learned counsel for the applicants submitted that the impugned summoning order is against the facts and law and thus, liable to be set aside. Before this complaint, the complainant has lodged a first information report against the applicants on 25.9.2017 for the offences under Sections 147, 148, 149, 379, 427, 504, 449 I.P.C. After investigation, the charge-sheet was submitted against five named accused persons and rest of the named accused persons were exonerated. After that the informant has filed a complaint of this case regarding the same incident by making false allegations that the applicants have abused and demolished the boundary wall of the informant. After recording the statements of the complainant under Section 200 Cr.P.C. and of the witnesses under Section 202 Cr.P.C., the applicants were summoned vide impugned order dated 9.2.2018. It was submitted that as the State case regarding the same incident is pending, thus, the proceedings of the impugned complaint case are liable to be quashed. In this connection, learned counsel has placed reliance upon the case of Nitin and others Vs. State of U.P. and another, [2024 (126) ACC 508].
4. Learned counsel for the complainant/opposite party no. 2 has submitted that in the aforesaid State case, various named accused persons were exonerated during investigation and the charge-sheet was submitted only against five accused persons and due to this reason, the complainant has filed the complaint of this case. It is also submitted that the appropriate course to deal with the matter is that the both cases must be consolidated under the provisions of Section 210 Cr.P.C. The impugned summoning order cannot be quashed merely on the ground that earlier regarding the same incident, the charge-sheet has been filed. In support of his contention, learned counsel has placed reliance upon the cases of Smt. Hansa Devi and others Vs. State of U.P. and another, [2012 (79) ACC 937], Pal @ Palla Vs. State of Uttar Pradesh, 2010 (7) Supreme 47 and Harjinder Singh Vs. State of Punjab, 1985 (1) SCC 422.
5. I have considered the rival submissions and perused the record.
6. Section 210 of CrPC deals with a situation where two parallel proceedings are pending on the basis of same allegation. Provisions of section 210 CrPC read as under:
"(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 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."
7. In case of Pal @ Palla (supra), Hon'ble Apex Court held as under:
''22. Section 210 Cr.P.C. provides the procedure to be followed when there is a complaint case and police investigation in respect of the same offence. Sub-Section (1) of Section 210 provides that when in a case instituted otherwise than on a police report, namely, a complaint case, the Magistrate is informed during the course of inquiry or trial that an investigation by the police is in progress in relation to the offence which is the subject matter of inquiry or trial held by him, the Magistrate is required to stay the proceedings of such inquiry or trial and to call for a report on the matter from the Police Officer conducting the investigation. Sub-Section (2) provides that if a report is made by the Investigating 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 a complaint case, the Magistrate shall inquire into or try the two cases together, as if both the cases had been instituted on a police report. Sub-Section (3) provides that 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 a police report, he shall proceed with the inquiry or trial which was stayed by him, in accordance with the provisions of the Code.
23. Although, it will appear from the above that under Section 210 Cr.P.C. the Magistrate may try the two cases arising out of a police report and a private complaint together, the same, in our view, contemplates a situation where having taken cognizance of an offence in respect of an accused in a complaint case, in a separate police investigation such a person is again made an accused, then the Magistrate may 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. That, however, is not the fact situation in the instant case, since the accused are different in the two separate proceedings and the situation has, in fact, arisen where prejudice in all possibility is likely to be caused in a single trial where a person is both an accused and a witness in view of the two separate proceedings out of which the trial arises. In our view, this is a case where the decision in Harjinder Singh's case (supra) would be more apposite. In the said case, the question of Article 20(2) of the Constitution, as well as Section 300 Cr.P.C., relating to double jeopardy was considered. A similar situation has arisen in this case where the version in the complaint case and the police report are totally different, though, arising out of the same incident. In our view, this is a case where the two trials should be held simultaneously but not as a single trial.''
8. This Court in the case of Sukhpal & others V. State of UP & another 2007 (57) 373, after examining the provisions of Section 210 CrPC, held as under:
"I am of the view that in respect of the same subject matter, a police report under section 173(2) CrPC is submitted and the cognizance has been taken against the accused by the learned Magistrate and the complaint has been filed, some more persons including accused who have been charge-sheeted, the learned Magistrate is competent to take cognizance against those accused persons who have not been charge-sheeted and there is no bar for taking cognizance of offence on private complaint against remaining accused."
9. Similar view has been taken in case of Smt. Hansa Devi & Others (supra) and this Court held as under:
''10 Although cognizance is taken of the offence and not of the offender, but there is nothing in the Code that prohibits taking cognizance on a private complaint even though the Court may have already taken cognizance on a police report. It is only the consequences that may arise out of such an eventuality that have been addressed to by the provisions of section 210 of the Code, as has been noticed above.
11. The decision in the case of Jile Singh (supra), which has been relied upon by the learned counsel for the revisionists is not applicable to the facts of the present case as admittedly the police challani case has not yet been committed to the Court of Session. If there had been a committal order then, in such a situation, it is the Session's Court alone which could have exercised the power to summon additional accused by exercising its power under Section 319 Cr.P.C. upon recording of evidence, as per the law laid in Jile Singh's case following the decisions of the apex court in the cases of Ranjit Singh Vs. State of Punjab (1998) 7 SCC 149 and Kishori Singh Vs. State of Bihar (2004) 13 SCC. However, in the present case, the case has admittedly not been committed to the Court of Session and there was no investigation pending and thus, there was no embargo on the court of Magistrate with respect to summoning the revisionists upon a private complaint after recording the statements of the complainant and of the witnesses in support thereof, particularly, when the persons so summoned were not accused in the police report.
For the reasons discussed above, I do not find any illegality, impropriety or jurisdictional error in the order passed by the court below.''
10. Thus, it it is apparent that in respect of the same subject matter, if a police report under section 173(2) CrPC is submitted and the cognizance has been taken against the accused by the learned Magistrate and the complaint has been filed, some more persons including accused who have been charge sheeted, the learned Magistrate is competent to take cognizance against those accused persons who have not been charge-sheeted and there is no bar for taking cognizance of offence on private complaint against remaining accused. In the instant case the first information report was lodged by the opposite party No. 2 against 20 named accused persons but charge sheet was submitted only against five accused persons. Thus, the opposite party No. 2 has lodged impugned complaint against said 20 accused persons, who have been summoned by the impugned summoning order. In view of these facts and circumstances aforesaid case Nitin Vs State (supra) cannot be applied, rather the matter is governed by the provisions of section 210 CrPC. In view of these facts no case for quashing of impugned proceedings and summoning order is made out. However, it is provided that in case applicants move an application before the concerned court for consolidation of complaint case in terms of section 210 CrPC, the same shall be considered and decided in accordance with law.
11. With aforesaid provisions, the instant application under section 482 CrPC is dismissed.
Order Date :- 05.08.2024 Gss/Anand