Allahabad High Court
Peshkar And Others vs State Of U.P. Thru. Prin. Secy. Home Lko. ... on 28 July, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Neutral Citation No. - 2023:AHC-LKO:49809 Court No. - 28 Case :- APPLICATION U/S 482 No. - 7269 of 2023 Applicant :- Peshkar And Others Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko. And Another Counsel for Applicant :- Pawan Kumar Sharma Counsel for Opposite Party :- G.A. Hon'ble Shree Prakash Singh,J.
Heard learned counsel for the applicants, Sri Girijesh Dwivedi, learned A.G.A. for the State and perused the material placed on record.
The instant application under section 482 Cr.P.C. has been filed with the prayer to quash the complaint case no. 4028/2011 and the summoning order dated 11-01-2023 whereby the applicants have been summoned for trial for the offences under sections 323,504,506,452,436 of I.P.C., Police Station-Visheshwarganj, District-Bahraich passed by the Additional Civil Judge(Senior Division), Court No. 1, Bahraich in the complaint case no. 4028 of 2011 and the order dated 18-05-2023, passed by Sessions Judge, Bahraich in Criminal Revision No. 23 of 2023.
Learned counsel appearing for the applicants submits that initially the first information report was lodged by the opposite party no. 2 against the applicants including two other persons and whereafter, the investigation was conducted and it was found that the present applicants were not involved in committing offence and thus, the final report was submitted by the police with respect to the present applicants. He next added that as soon as the final report was submitted with respect to the present applicants, the complainant instituted a complaint, which was registered and thereafter, the statements of the complainant as well as other witnesses were recorded and thereafter, the present applicants have been summoned vide impugned order dated 11-01-2023. He next added that this order has been passed after a period of 12 years, as the complaint was instituted in the year 2011. He next submits that since the same set of allegations has been levelled in the complaint case as was in the first information report, thus, as per the provisions contained in Section 210 of Cr.P.C., both the cases can be clubbed together, and the same shall run concurrently. He submits that issuance of further summons is against the settled proposition of law in a complaint case, where the police case, is already running.
In support of his contentions, he has placed reliance on the Judgment of this court in the case of Sanjay Kumar Versus State of U.P. & Another, reported in [2010(1)JIC 307(All)(LB)] and has referred paragraphs no. 4 & 5 of the Judgment aforesaid, which are quoted hereinunder :-
"4. Further submission made at Bar by the learned counsel for the petitioner is that complaint case bearing Case No. 1711 of 1999 instituted on the basis of F.I.R. lodged by the Food Inspector of District Rae Bareli in the Court of Additional Chief Judicial Magistrate-1, Rae Bareli is also the outcome of the one and the same incident i. e. it is based on one and the same sample and is of the same date, as such, As such, the submission is that the petitioner cannot be tried for the same offence twice; once in the police case and; in the complaint case. It is submitted that the police case and the complaint case should be clubbed and tried together. Learned counsel for the petitioner has moved application under Section 210 Cr.P.C. which is pending disposal before the Additional Chief Judicial Magistrate-1, Rae Bareli.
5. In view of the above, it is directed that the learned Additional Chief Judicial Magistrate-1, Rae Bareli shall proceed in case NO. 1605 of 1999 under Section 272 & 273 IPC of Police Station Kotwali, district Rae Bareli only after disposing of the application of the petitioner moved under Section 210 Cr.P.C. and the complaint case and the police case be clubbed together if both the cases arise out of one and the same incident."
Referring the aforesaid, he submits that it is a settled law that in case of police case which is running, and for the same set of allegations, a complaint is filed, the learned Magistrate can invoke jurisdiction under section 210 of Cr.P.C.
After the abovesaid arguments, he submits that the applicants may be given liberty to move an application under section 210 of Cr.P.C. and the same may be directed to be decided within a stipulated period of time, as may be fixed by this court.
On the other hand, learned A.G.A. appearing for the State has vehemently opposed the contentions aforesaid on merits, but, he has no objection if the applicants are given liberty to move an application under section 210 of Cr.P.C.
Considering the submissions of learned counsel for the parties and after perusal of material placed on record, it transpires that the first information report was lodged in the year 2009 by the opposite party no. 2/complainant and once, the final report was submitted against the present applicants, in the year 2011, a complaint case has been instituted by the same complainant alleging therein the same set of allegations and thereafter, the Magistrate, after recording the statements of the witnesses and the complainant, has issued summoned to the present applicants.
There is a specific provision under section 210 of Cr.P.C. that where there is police case running, and a complaint case is also filed with the same allegations, the Magistrate will have to invoke the jurisdiction under section 210 of Cr.P.C. and pass orders, if it is liable to be clubbed.
This controversy has already been settled by this court in the case of Sanjay Kumar Vs. State of U.P. & Another(Supra) that the learned trial court while invoking the jurisdiction under section 210 of Cr.PC., can club the complaint case with the police case together, if both the cases are arising out of one and the same incident.
In view of the aforesaid, the summoning order dated 11-01-2023 cannot sustain and the same is hereby set aside.
The applicants are at liberty to move an application under section 210 of Cr.P.C. before the trial court concerned within a period of 10 days from today and if such an application is filed, the same shall be considered and decided by the trial court concerned within further period of 30 days.
In case of any violation of the observations abovesaid, the benefit of this order will not remain in existence.
With the aforesaid observations/directions, the instant application is allowed.
Order Date :- 28.7.2023 AKS