Punjab-Haryana High Court
Chhotu Ram vs State Of Haryana on 23 August, 1996
Equivalent citations: I(1997)DMC203
Author: P.K. Jain
Bench: P.K. Jain
JUDGMENT P.K. Jain, J.
1. This petition has been filed under Section 482 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') for quashing the orders dated 9.8.1994 (Annexure P-l) and 13.3.1995 (Annexure P-4) passed by the Additional Sessions Judge, Hissar, as well as for quashing the charge-sheet dated 22.2.1996 (Annexure P-2).
2. The facts necessary for the disposal of this petition are that Smt. Vijayshri, aged about 20 years, was married to the petitioner Chhotu Ram about three years prior to the date of occurrence. After her marriage, she alleged to have been harassed and treated with cruelty for not bringing sufficient dowry and not meeting the demand thereof by her husband, the present petitioner, Smt. Maina Devi her mother-in-law and Roshni Devi her sister-in-law. Ultimately, Vijayshri died on 19.7.1993 due to burn injuries at her in-laws' house. First Information Report No. 95 dated 22.7.1993 was registered at Police Station Bhattu Kalan, on the basis of statement made by Shri Hardeva Ram, father of the deceased. After investigation, a charge-sheet under Section 173 of the Code was filed by the police against the present petitioner and his mother Maina Devi for the offences under Sections 498-A/304-B, Indian Penal Code. After complying with the necessary formalities as required by law, the case was committed to the Court of Sessions. Dissatisfied with the investigation made by the police Shri Hardeva Ram filed a complaint under Sections 304-B/498-A, Indian Penal Code, read with Section 34 of the I.P.C., against the petitioner, his mother Smt. Maina Devi and sister Smt. Roshni Devi. The Judicial Magistrate, after recording the preliminary evidence in support of the said complaint, summoned Roshni Devi to stand trial for the offences by order dated 11.4.1994 and thereafter, after complying with the necessary formalities, as required by law, committed that case also to the Court of Sessions.
3. By order dated 9.8.1994, the Additional Sessions Judge clubbed the complaint case with the State case and ordered that thenceforth the proceedings shall be recorded in the State case. On 22.9.1994, the Additional Sessions Judge framed a charge under Sections 304-B/498-A, Indian Penal Code, against all the three accused, namely, Chhotu Ram, his mother Smt. Maina Devi and sister-Roshni Devi. The case was adjourned to 12.1.1995 for prosecution evidence.
4. On 12.1.1995, the persent petitioner moved an application that the evidence should be recorded separately in the complaint case and the case based on the police report. This request was opposed by the prosecution. After hearing the Counsel for the parties, the Additional Sessions Judge, by his order dated 13.3.1995 (Annexure Bki4) rejected the application on the gound that if the request of the accused is allowed, the same would amount to reviewing the earlier order dated 9.8.1994 (Annexure P-l), whereby both the cases were clubbed and ordered to be tried together. Feeling aggrieved, the accused-petitioner has filed the present petition.
5. Notice of motion was issued to the respondents. In its separate reply, the State has defended the impugned orders on the ground that since both the cases have arisen out of the same occurrence, the Trial Court was justified in clubbing both the cases and in recording the proceedings in the case instituted on the police report, which was necessary to avoid the conflict of judgments. It has been further stated that no prejudice has been caused to the petitioner or the other accused persons and the present petition is liable to be dismissed.
6. In his reply filed by Hardeva Ram-complainant, it has been stated that he had filed the complaint when the local police failed to challan Roshni Devi for the reasons best known to it while allegations against all the three accused were exactly the same and that the Additional Sessions Judge rightly clubbed both the cases as permitted by Sections 210 and 223 of the Code.
7. I have heard the learned Counsel for the parties and have perused the record.
8. The factual position as narrated above has not been disputed by either of the parties at the Bar. It may be clarified at the outset that Section 210 of the Code lays down the procedure to be followed when there is a complaint case and police investigation in respect of the same offence is in progress, and not vice-versa. According to the said section; a complaint case is to be stayed when it is brought to the notice of the Magistrate that police investigation on the same matter is proceeding. The Magistrate shall then call for a report from the Police Officer concerned to ensure that the investigation on the same matter has been proceeding. If a report is made by the Investigating Officer under Section 173 of the Code and on such a report cognizance of any offence is taken by the Magistrate against any person who is also an accused in the complaint case, the Magistrate shall enquire 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. Where a Magistrate has already taken cognizance on a police report and thereafter a complaint is filed, Section 210 of the Code is not attracted.
9. However, the question still remains as to whether the Additional Sessions Judge was justified under any provision of the Code to consolidate and club together both the cases based on the police report as well as the complaint and to direct that the proceedings would be recorded in the case instituted on the police report. To examine this question it is necessary to mention that in the case based on the police report there are two accused, namely, Chhotu Ram and Maina Devi, whereas in the complaint case there are three accused i.e., Chhotu Ram, Maina Devi and Roshni Devi. It may also be stated that in the ease based on the police report there are four witnesses cited by the prosecution, whereas in the complaint case 7 witnesses have been proposed to be examined at the trial. The version given by the police after investigation, if not totally different, is definitely somewhat at variance with the version given in the complaint case. In these circumstances, the Additional Sessions Judge was not justified under any provision of the Code to consolidate and club together both the cases i.e., the case based on the police report and that based on the complaint, although both have arisen out of the same occurrence.
10. The present case is squarly covered by a judgment of the Apex Court rendered in Harijinder Singh v. State of Punjab and Ors., 1985(1) Recent C.R. 289. In a somewhat similar situation in that case, after examining the relevant provisions of the Code, including Section 223 thereof, the Apex Court in Para 8 of the judgment made the following observations :
"In the facts and circumstances of this particular case we feel that the proper course to adopt is to direct that the two cases should be tried together by the learned Additional Sessions Judge but not consolidated i.e., the evidence should be recorded separately in both the cases one after the other except to the extent that witnesses for the prosecution who are common to both the cases be examined in one case and their evidence be read as evidence in the other. The learned Additional Sessions Judge should after recording the evidence of the prosecution witnesses in one case, without his judgment and then proceed to record the evidence of the prosecution in the other case. Thereafter he shall proceed to simultaneously dispose of the cases by two separate judgments taking care that the judgment in one case is not based on the evidence recorded in the other case. In Kewal Krishan's case (supra), Kewal Krishan v. Suraj Bhan and Anr., A.I.R. 1980 SC. 1780, this Court had occasion to deal with a situation as the present, where two cases exclusively triable by the Court of Sessions, one instituted on a police report under Section 173 of the Code and the other initiated on a criminal complaint, arose out of the same transaction. The Court observed that to obviate the risk of two Courts coming to conflicting findings, it was desirable that the two cases should be tried separately but by the same Court."
11. Thus, it becomes clear that the merging of the two cases based on police report and complaint is not contemplated by the Code. What is contemplated is only that the cases are to be tried together by the same Court to avoid the conflict of judgments. The two cases continue to exist separately and independently of each other.
12. From the above discussion, it becomes evident that the Additional Sessions Judge committed a gross error in clubbing and consolidating both the cases based on police report and the complaint and to frame a charge in the case in the police report and to direct that the evidence be recorded in the said case. Therefore, both the impugned orders dated 9.8.1994 (Annexure P 1) and 13.3.1995 (Annexure P4) as well as the charge sheet dated 22.9.1994 (Annexure P 2) are not sustainable in the eyes of law. Consequently, I accept this petition and hereby quash the orders dated 9.8.1994 (Annexure P 1) and dated 13.3.1995 (Annexure P 4) as well as the charge-sheet dated 22.9.1994 (Annexure P 2), with the direction to the Additional Sessions Judge to proceed with both the cases separately, although simultaneously, in the light of the guiding principles contained in the above observations of the Apex Court.