Allahabad High Court
Janardan Singh And 5 Others vs State Of U.P. And Another on 19 December, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD ?A.F.R. Neutral Citation No. - 2024:AHC:199250 Court No. - 79 Case :- APPLICATION U/S 482 No. - 38429 of 2024 Applicant :- Janardan Singh And 5 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Arvind Kumar Srivastava,Bhaju Ram Pprasad Sharma Counsel for Opposite Party :- G.A. Hon'ble Arun Kumar Singh Deshwal,J.
1. Heard Sri Arvind Kumar Srivastava along with Bhaju Ram Prasad Sharma, learned counsel for the applicants as well as Sri Raj Bahadur Verma, learned A.G.A. for the State and perused the record.
2. The present application has been filed to quash the order dated 16.09.2024 in Complaint Case No.1206 of 2022 (Kanchan Singh Vs. Harinandan Singh and others), under Sections 498-A, 323, 504 I.P.C. and Section 3/4 D.P. Act, P.S. Cmapierganj, District Gorakhpur, pending in the court of Judicial Magistrate - IIIrd, District Gorakhpur, by which application of applicants U/S 210 Cr.P.C. was allowed and police case and complaint case were directed to be tried together.
Factual Matrix
3. The fact given as to present controversy in the opposite party no.2 has lodged an F.I.R. in Case Crime No.62 of 2022, under Sections 498-A, 323, 504 and 3/4 D.P. Act against Harinandan Singh, Janardan Singh, Sheela Singh, Sumer Singh, Pooja Singh, Krishna Pratap Singh. Police after investigation has submitted charge sheet.
4. It is also clear from the record that prior to lodging the aforesaid F.I.R., opposite party no.2 had also filed a complaint on 25.1.2022 against all accused persons. Subsequently, the police after investigation has submitted charge sheet against the applicant nos.1, 2 and 3 (Janardan Singh, Harinandan Singh and Sheela Singh). The court below has also taken cognizance for the same and in the complaint case filed by the opposite party no.2, all the applicants were summoned on 18.11.2022. Thereafter, applicants moved an application under Section 210 Cr.P.C. to connect the case registered on police report as well as complaint case. During the pendency of that application, applicants approached this Court through Application U/S 482 Cr.P.C. No.10320 of 2024, which was disposed of vide order dated 18.04.2024, directing the court below to disposed of the application of the applicants, under Section 210 Cr.P.C. In pursuance of order of this Court, the court below has passed the order dated 16.09.2024, by which complaint as well as State case were consolidated together to try the same, this order is under challenge in the present application.
5. Learned counsel for the applicants has submitted that as the applicant nos.4, 5 and 6 were not charge sheeted in police case though they are accused in complaint case, therefore, they cannot be tried together with the other accused persons in view of Section 210(3) Cr.P.C.
6. Learned A.G.A. has vehemently opposed the prayer made by learned counsel for the applicants and submitted that there is no illegality in the impugned proceeding as Section 210(3) Cr.P.C. which provides if any person is charge sheeted but not the accused in complaint only then Section 210(3) Cr.P.C. will apply but in the present case, all the accused in police report relates to the accused in a complaint case, therefore, there is no illegality in the impugned order.
7. After hearing learned counsel for the parties and on perusal of records, it appears that the applicant nos.4, 5 and 6 though summoned in the complaint case but not charge sheeted in police report despite the fact they were named as accused in F.I.R. For the applicability of Section 210(3) Cr.P.C., it is necessary that the accused mentioned in complaint case should not be the accused in police report. For reference Section 210 Cr.P.C. is quoted 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."
8. Apart from the Section 210 Cr.P.C. the person who are accused of same offence in grace of the same transaction then the accused persons may be charged and try together under Section 223 Cr.P.C. For reference Section 223 Cr.P.C. is being quoted as under:-
"The following persons may be charged and tried together, namely;
a. persons accused of the same offence committed in the course of the same transaction;
b. persons accused of an offence and persons accused of abetment of, or attempt to commit, such offence;
c. persons accused of more than one offence of the same kind, within the meaning of section 219 committed by them jointly within the period of twelve months;
d. persons accused of different offences committed in the course of the same transaction;
e. persons accused of an offence which includes theft, extortion, cheating, or criminal misappropriation, and persons accused of receiving or retaining, or assisting in the disposal or concealment of, property possession of which is alleged to have been transferred by any such offence committed by the first-named persons, or of abetment of or attempting to commit any such last-named offence;
f. persons accused of offences under sections 411 and 414 of the Indian Penal Code (45 of 1860) or either of those sections in respect of stolen property the possession of which has been transferred by one offence;
g. persons accused of any offence under Chapter XII of the Indian Penal Code (45 of 1860) relating to counterfeit coin and persons accused of any other offence under the said Chapter relating to the same coin, or of abetment of or attempting to commit any such offence; and the provisions contained in the former part of this Chapter shall, so far as may be, apply to all such charges;
Provided that where a number of persons are charged with separate offences and such persons do not fall within any of the categories specified in this section, the Magistrate or Court of Sessions may, if such persons by an application in writing, so desire, and if he is satisfied that such persons would not be prejudicially affected thereby, and it is expedient so to do, try all such persons together."
9. In the present case all the accused mentioned in police report are also summoned in complaint case but three accused namely Sumeshwar Singh, Pooja Singh and Krishna Pratap Singh who are applicant nos.4, 5 and 6 in the present application though summoned in the complaint case but they were not charge sheeted in police report in Case Crime No.62 of 2022, therefore, question arises whether the proceeding of impugned complaint case should have been consolidated and tried with the police case in Case Crime No.62 of 2022. Despite the fact that three of the accused summoned in complaint case have not been charge sheeted in police report. The Apex Court in the case of Harjinder Singh Vs. State of Punjab and others, (1985) (1) SCC 422, has observed that in case any accused has not been charge sheeted despite being accused in complaint then his case should not be clubbed or consolidate under Section 223 of Cr.P.C. with the case of a police challan but such type of cases should be tried together without consolidating the same. Paragraph nos.9 and 10 of Harjinder Singh (supra) are being quoted as under:-
"9. We fail to comprehend the implications that would arise if the order passed by the learned Additional Sessions Judge as upheld by the High Court was to be implemented. The case presents a feature which is rather disturbing. In the special leave petition, there is a specific allegation made by the complainant that the accused are influential persons and they exerted pressure on the police as a result of which in the police challan case the complainant's party was shown to be the aggressors. It is further alleged that the police in order to achieve this object have presented a challan which is not supported by any of the witnesses of the occurrence and although the complainant Harjinder Singh received gunshot wounds, 1 e has not even been cited as a witness for the prosecution. It is said that the case against the accused is sought to be supported by the testimony of Chanan Singh, Head Constable, Pawan Kumar, Constable and the doctors who performed the post-mortem examinations. We have set out these allegations only for the purpose of showing the nature of the case against the accused in the police challan case. The complaint presents a different picture altogether. The prosecution case as set out in the complaint is at complete variance with that in the police challan. In our judgment, it is not permissible for the Court under Section 223 of the Code to club and consolidate the case on a police challan and the case on a complaint where the prosecution versions in the police challan case and: the complaint case are materially different, contradictory. and mutually exclusive.
10. For these reasons, the appeal succeeds and is allowed. The order passed by the Additional Sessions Judge, Barnala dated April 24, 1984 as modified by the High Court by its order dated May 9, 1984, is set aside and the learned Additional Sessions Judge is directed that the two cases be not consolidated but tried together with advertence to the observations made above."
10. The Apex Court in the case of Manikandan Vs. Pandian and others, (1989) Supplement (2) SCC 648, has observed the power under Section 210 and Section 223 Cr.P.C. to consolidate two cases should not be exercised where the accused are different in police report as well as complaint case and in such cases, case should be tried together without consolidating the same and evidence should be recorded separately in both the cases unless the witnesses are common. Paragraph No.9 of Manikandan (supra) is being quoted as under:-
"9. Before parting with the case, it may be necessary to point out that the two cases however, cannot be consolidated and tried together though the case instituted on private complaint is in respect of the same offence for which the charge-sheet has been filed against the first accused. The entire evidence in the case may not be the same. It may, therefore, be proper to record the evidence separately in both the cases unless the witnesses are common, The cases be tried one after another. In this context, we invite the attention of the parties and the trial court to have regard to the principles laid down in Harjinder Singh Vs. State of Punjab."
11. The Apex Court in the case of Pal @ Palla Vs. State of U.P., (2010) 10 SCC 123, has observed when the accused are different in police report and complaint case then complaint case arising out of same incidence then the trial of both the cases should be held simultaneously but note as a single trial. Paragraph Nos.29 and 30 of Pal @ Palla (supra) are being quoted as under:-
" 29. 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.
30. The facts of the case also warrant that the two trials should be conducted by the same Presiding Officer in order to avoid conflict of decisions. As was observed in Harjinder Singh's case (supra) clubbing and consolidating the two cases, one on a police challan and the other on a complaint, if the prosecution versions in the two cases are materially different, contradictory and mutually exclusive, should not be consolidated but should be tried together with the evidence in the two cases being recorded separately, so that both the cases could be disposed of simultaneously."
12. The Apex Court in the case of Essar Teleholdings Limited vs. Central Bureau of Investigation, (2015) 10 SCC 562, has considered the issue of joint trial and observed after taken into account Sections 220 and 223 Cr.P.C. that discretion is vested in the court to order a joint trial and also observed that general rule as per Section 218 Cr.P.C. is separate trial for separate offence but Section 223 Cr.P.C. is exception where two or more accused are involved for providing the joint trial. In this case the Apex Court relied upon the earlier judgement of the Apex Court in Chandra Bhal Vs. State of U.P., (1971) 3 SCC 983. Paragraph 19 of Essar Teleholdings Limited (supra) is quoted as under:-
"19. Read in the backdrop of Sections 220 and 223, it is clear that a discretion is vested with the Court to order a joint trial. In fact, in Chandra Bhal v. State of U.P., (1971) 3 SCC 983, this Court stated:
?5. Turning to the provisions of the Code, Section 233 embodies the general mandatory rule providing for a separate charge for every distinct offence and for separate trial for every such charge. The broad object underlying the general rule seems to be to give to the accused a notice of the precise accusation and to save him from being embarrassed in his defence by the confusion which is likely to result from lumping together in a single charge distinct offences and from combining several charges at one trial. There are, however, exceptions to this general rule and they are found in Sections 234, 235, 236 and 239. These exceptions embrace cases in which one trial for more than one offence is not considered likely to embarrass or prejudice the accused in his defence. The matter of joinder of charges is, however, in the general discretion of the court and the principle consideration controlling the judicial exercise of this discretion should be to avoid embarrassment to the defence by joinder of charges. On the appellant's argument the only provision requiring consideration is Section 235(1) which lays down that if in one series of acts so connected together as to form the same transaction more offences than one are committed by the same person then he may be charged with and tried at one trial for every such offence. This exception like the other exceptions merely permits a joint trial of more offences than one. It neither renders a joint trial imperative nor does it bar or prohibit separate trials. Sub-section (2) of Section 403 of the Code also provides that a person acquitted or convicted of any offence may be afterwards tried for any distinct offence for which a separate charge might have been made against him on the former trial under Section 235(1). No legal objection to the appellant's separate trial is sustainable and his counsel has advisedly not seriously pressed any before us.?
13. The Apex Court again considered the scope of Section 223 Cr.P.C. in the case of Nasib Singh Vs. State of Punjab and others, (2022) 2 SCC 89, wherein the Apex Court again observed that holding separate trial is the rule and joint trial is the exception which has been provided by Section 223 Cr.P.C. In this case the Apex Court laid down the principle for joint trial as well as separate trial in paragraph no.51. Pagraph No51 of Nasib Singh (supra) is being quoted as under:-
"51. From the decisions of this Court on joint trial and separate trials, the following principles can be formulated:
51.1 Section 218 provides that separate trials shall be conducted for distinct offences alleged to be committed by a person. Sections 219 - 221 provide exceptions to this general rule. If a person falls under these exceptions, then a joint trial for the offences which a person is charged with may be conducted. Similarly, under Section 223, a joint trial may be held for persons charged with (2015 ) 10 SCC 562 different offences if any of the clauses in the provision are separately or on a combination satisfied.
51.2 While applying the principles enunciated in Sections 218 - 223 on conducting joint and separate trials, the trial court should apply a two-pronged test, namely, (i) whether conducting a joint/separate trial will prejudice the defence of the accused; and/or (ii) whether conducting a joint/separate trial would cause judicial delay.
51.3 The possibility of conducting a joint trial will have to be determined at the beginning of the trial and not after the trial based on the result of the trial. The Appellate Court may determine the validity of the argument that there ought to have been a separate/joint trial only based on whether the trial had prejudiced the right of accused or the prosecutrix.
51.4 Since the provisions which engraft an exception use the phrase ?may? with reference to conducting a joint trial, a separate trial is usually not contrary to law even if a joint trial could be conducted, unless proven to cause a miscarriage of justice.
51.5. A conviction or acquittal of the accused cannot be set aside on the mere ground that there was a possibility of a joint or a separate trial. To set aside the order of conviction or acquittal, it must be proved that the rights of the parties were prejudiced because of the joint or separate trial, as the case may be."
14. From the above legal position discussed above, it is clear that while issuing direction to conduct joint trial, Court should take into consideration whether it would prejudice any accused or result in failure of justice if joint trial is not conducted.
15. The basic purpose of conducing joint trial is that person who is accused in two separate cases for the same transaction should not be prejudiced by separate trial as same would be in violation of Section 300 Cr.P.C. as well as Article 20(2) of Constitution of India. But if the accused in complaint's case and police case are totally different though arising out of same incident then two trial should be held simultaneously but not as a single trial.
16. From the joint reading of Section 210 Cr.P.C. as well as 223 Cr.P.C. in the light of legal position discussed above, it is made clear that even if the case of joint trial does not fall under Section 210 Cr.P.C. even then trial of complaint case and police case can be conducted jointly under Section 223 Cr.P.C. so as to avoid the failure of justice or prejudice any accused who is charge sheeted in police report as well as who is also accused in complaint case.
17. In the present case applicant Nos.1, 2 and 3 are accused in police case as well as in complaint case, if the trial is permitted to conduct separately for the same offence arising out of same incident then this would seriously prejudice the right of applicant nos.1, 2 and 3 but in the present case the applicants themselves prayed that their trial of police case as well as complaint case should not be conducted jointly. In such circumstances, directing to conduct the trial of complaint case as well as police case jointly as police case will amount to failure of justice to the applicants. As the Section 223 Cr.P.C. itself an enabling provision, therefore, even if the case for joint trial is made out even then the Court can direct for separate trial considering the interest of the accused. In the present case, though, case of the applicants covers under Section 223 (a) of the Cr.P.C. as all the accused persons are charged with same offence committed in course of the same transaction but considering the fact that applicant nos.4, 5 and 6 are not accused in police case and they are accused only in complaint case, therefore, forcing them to face the trial of police case will itself amount to failure of justice. Therefore, both the cases (police case as well as complaint case) as mentioned in the impugned order should not be consolidated but this should be tried together.
18. From the perusal of the impugned order, it appears that court below had directed to try both the cases together not to consolidate the same, therefore, this Court does not find any illegality in the impugned order dated 16.06.2024 but further clarified to the extent that the Complaint Case No.1206 of 2022 as well as State case arising out of Case Crime No.62 of 2022 shall be tried together without consolidating the same and evidence should be recorded separately unless the witnesses are common.
19. With the aforesaid observation, the present application is disposed of.
Order Date :- 19.12.2024 Jitendra