Madhya Pradesh High Court
Parmanand Sisodia vs Madhukar And Ors. on 17 April, 2002
Equivalent citations: 2002CRILJ3640, 2002(3)MPHT343
JUDGMENT S.L. Kochar, J.
1. This order shall also govern the disposal of the aforesaid Criminal Revision Nos. 187/2002 to 195/2002 as similar questions of law and facts are involved.
2. The appellant has lodged his grievance against the order dated 24-12-2001 passed by the Special Judge, Indore in respect of Special Case Nos. 4 to 13 in the aforesaid Criminal Revisions, rejecting the application filed by the applicant/complainant under Section 210 of the Code of Criminal Procedure (for short, "the Code").
3. The applicant has put in issue for decision before this Court whether after discharge of the non-applicant Nos. 1 to 6 from the charges under Sections 13(1)(d) and 13(2), Prevention of Corruption Act, 1988 (for short, "the Act") in Criminal Revision No. 233/2001 by the High Court, even then the private complaint will survive and the same shall be enquired into by the Court below as per Provisions of Section 202 of the Code.
4. Necessary facts required to be mentioned here are as follows :--
That the applicant filed criminal complaint against the non-applicants on 25-1-2000 before the Special Judge, Indore under the Provisions of the Act. Along with the complaint, the applicant has also filed certified copy of the First Information Report in Crime No. 46/98 registered by the Special Police Establishment, Bhopal against the non-applicants for the offences under Sections 13(1)(d), 13(2) of the Act and Sections 120B, 420, 467, 468 and 471 of the IPC. The Special Judge, on the basis of the First Information Report as well as the complaint, called the report about the investigation done by the police, from the concerned Police Station in the aforesaid crime and ordered for sending photo-copy of the complaint to the Superintendent of Police, Ujjain, Special Police Establishment, Lok Ayukta Office.
5. On the basis of this order, the Special Police Establishment, had filed report under Section 173 of the Code (charge-sheet) against the non-applicants for the offence under Sections 13(1)(d), 13(2) of the Act and Section 120B of the IPC. This report was taken in the complaint case filed by the applicant and the Special Judge framed the charges against non-applicants after hearing rival contentions of the parties.
6. Against the order of framing of charge on 16-11-2001 against non-applicant Nos. 1 to 6 revisioned before this Court in Criminal Revision Nos. 238/2001, 244/2001, 245/2001, 247/2001, 248 to 254 of 2001 and 283/2001, 288/2001 and 5505/2001. All these criminal revisions have been allowed by this Court by a common order dated 26-11-2001 thereby setting aside the order of framing of charge and discharged the accused persons. Copy of this order has been filed by the applicant along with the criminal revision, available at page 11.
7. The allegation, in short, against the non-applicants is that they had acted illegally and without jurisdiction after entering into conspiracy regarding compounding illegal construction of the builders. This Court has set aside the order of framing of charge against the non-applicants on the ground that under Section 403 of the Municipal Corporation Act they had acted for compounding illegal construction and the said orders are quasi judicial orders against which, forum for filing appeal was available and against quasi judicial authority for passing illegal order, the prosecution cannot be launched as they are fully protected by Section 402 of the Municipal Corporation Act. This Court has also quashed the order of framing of charge on merits.
8. After passing of the aforesaid order of discharge by this Court, the Special Judge passed the order on 24-12-2001 in presence of the non-applicant Nos. 1 to 6/accused persons, discharging their bail bonds and surety bonds and ordered for filing the case in the record room. The applicant had filed application under Section 210 of the Code praying for grant of permission to adduce additional evidence which has been dismissed and now the aforesaid revisions are preferred against this impugned order.
9. For convenience, Section 210 of the Code is reproduced as under:--
"210. Procedure to be followed when there is complaint case and police investigation in respect of the same offence.-- (1) When in 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 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 within the inquiry or trial which was stayed by him, in accordance with the provisions of this Code."
10. According to Section 210 of the Code, during the course of inquiry or trial held by the Magistrate in the private complaint, he was apprised of the fact that an investigation by the police is also in progress in relation to the offence, which is the subject-matter of the inquiry or trial. The Magistrate shall stay the proceedings and call for a report from the concerned police officer conducting the investigation.
11. In the present case, the Court has not entered into the inquiry or started trial of the accused persons/non-applicant Nos. 1 to 6 but on the same day of filing of the complaint, on the basis of the First Information Report filed by the applicant, directed for calling of the police report by sending copy of the complaint to the concerned police station. Certified copy of the order-sheet dated 28-1-2000 filed by the Counsel for the applicant is clearly indicating this fact.
12. The Police of Special Establishment, after receiving the copy of the complaint and order of the Court, submitted the charge-sheet under Section 173 of the Code for the aforesaid offences against the non-applicants. According to Sub-section (2) of Section 210 of the Code, when the police report under Section 173 of the Code is filed then complaint case and the case arising out of police report, will be tried together as if both the cases are instituted on a police report.
13. In view of the Provision of Sub-section (2) of the Section 210 of the Code, the complaint filed by the applicant, was not having any separate and independent identity. It was merged into the police report and cognizance taken by the Special Judge was on police report and complaint and thereafter, framed charges against non-applicant Nos. 1 to 6. This order dated 8-3-2001 was challenged by the non-applicant Nos. 1 to 6 before this Court and the same has been set aside in the aforesaid revision petitions by a common order dated 26-11-2001. After discharge of the non-applicant Nos. 1 to 6 for the same offences, question of entertaining the application under Section 210 of the Code allowing the complainant to adduce additional evidence, would not arise because the non-applicant Nos. 1 to 6 were already discharged for the said offences by the High Court. Counsel for the applicant placed reliance on a judgment in R.S. Nayak v. A.R. Antulay (AIR 1984 SC 991) but this judgment is not relating to the Provision of Section 210 of the Code. This decision is rendered by the Supreme Court deciding the issue that when cognizance of offence is taken under Section 8(1) of the Criminal Law Amendment Act, 1951, the Judge has to hold the trial according to the procedure prescribed under Chapter XIX-B i.e., Sections 244 to 247 of the Code. To be precise, the Judge has to try the case according to the procedure prescribed for cases instituted otherwise than on police report. Here in a complaint case filed by the applicant, the Special Judge has not reached upto the stage of application of Chapter XIX-B i.e., the cases instituted otherwise than on police report, for application of these provisions, the Judge has to proceed first under Chapter XV regarding the complaint to Magistrate and he has to comply with the provisions of Sections 200, 201, 202, 203 of the Code and thereafter, under Chapter XVI, if the Provisions are applicable in the complaint case instituted otherwise than police report. In the present case, on the date of filing of the complaint, the Special Judge has directed for calling of the police report and thereafter charge-sheet was filed by the police as defined under Section 173 of the Code. Therefore, private complaint is deemed to be merged in the police report as envisaged under Section 210 Sub-section (2) and in the said case, non-applicant Nos. 1 to 6 have already been discharged. So the question of permitting the complainant to adduce evidence would not arise,
14. In the present case, after filing of the charge-sheet by the police as per orders passed by the learned Magistrate, in a complaint case, at the first instance on that very day complaint was filed by the applicant against the same accused and for the same allegations, learned Trial Court took cognizance and framed the charge. The non-applicant Nos. 1 to 6, against framing of charge came up before this Court. This Court has passed the order of discharge. Thereafter, if the applicant has any grievance, he can go in some other forum against the said order of discharge. His application under Section 210 of the Code is not maintainable and the same is misconceived. Allowing his application, would nothing but trying the accused persons contrary to the procedure prescribed by law, which will infringe fundamental rights, of the non-applicant Nos. 1 to 6 enshrined under Article 21 of the Constitution of India.
15. In the light of the aforesaid analysis, all the aforesaid criminal revisions deserve the fate of dismissal. They are accordingly, dismissed as having no substance.
16. This order be retained in Criminal Revision No. 186/2002 and copy thereof be placed in all the aforesaid connected criminal revisions.