Punjab-Haryana High Court
Naresh Batra vs Vikram Batra And Another on 29 May, 2012
Author: Ranjit Singh
Bench: Ranjit Singh
Crl. Misc. M No.18899 of 2005 (O&M) :{ 1 }:
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
DATE OF DECISION: MAY29, 2012
Naresh Batra .....Petitioner
VERSUS
Vikram Batra and another ....Respondents
CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH
1.Whether Reporters of local papers may be allowed to see the judgement?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present: Mr. Baldev Singh, Sr.Advocate with
Mr. Sudhir Sharma, Advocate.
Mr. S.S. Narula, Advocate,
(in CRM-M Nos.2458 of 2009 & 12545 of 2010).
Mr. J. S. Bedi, Advocate.
Mr. K. S. Nalwa, Advocate,
(in CRM-M Nos.2458 of 2009 & 12545 of 2010).
Mr. D.D. Sharma, Advocate
for U.T, Chandigarh,
(in CRM-M Nos.18899 of 2005,18810 of 2007 and
2458 of 2009).
Mr. Rajeev Sharma, Advocate,
for U.T., Chandigarh.
****
RANJIT SINGH, J.
This order will dispose of Criminal Misc. M Nos.18899 of Crl. Misc. M No.18899 of 2005 (O&M) :{ 2 }:
2005 (Naresh Batra Vs. Vikram Batra), 18810 of 2007 (Amrita Batra and others Vs. Vikram Batra), 2458 of 2009 (Sandeep Kakar Vs. Vikram Batra), 12545 of 2010 (Sandeep Kakar Vs. State of U.T., Chandigarh and another) and 33469 of 2010 (Naresh Batra Vs. Vikram Batra and another). For disposal of these petitions, the facts are being taken from Criminal Misc. M No.18899 of 2005.
These petitions, seeking quashing of the complaint and the summoning order, are pending for the last seven years. During its pendency, the petition has gone through the hands of 24 Judges. No doubt, some time was consumed during the period this petition was taken up for mediation, which failed, but still one request after another was made to seek adjournment for the purpose of negotiated settlement. This had to be brought to an end and the cases have now been heard.
Initially, the prayer made in the petition was for quashing of the complaint and the summoning order. Subsequently, the petitioner also filed a petition to challenge the order, whereby the Court had clubbed the complaint case with the FIR case by invoking the provisions of Section 210 Cr.P.C with further direction to treat the complaint case as having been filed by police. Smt.Amrita Batra and others, who were summoned alongwith petitioner, Mr.Naresh Batra separately approached this Court through Criminal Misc. M No.18810 of 2007 for quashing of the complaint and the summoning order.
Crl. Misc. M No.18899 of 2005 (O&M) :{ 3 }:
Considerable debate, thus, has ensued in regard to power of the Court for clubbing the complaint case with that of FIR case, where report under Section 173 Cr.P.C is filed. It is urged on behalf of the respondents that this petition was filed to challenge the order, when it was pointed out that plea against the summoning order and for quashing of the complaint would be rendered infructuous as the complaint case stood clubbed with the FIR case and to be treated as a police case.
Before the submissions made by the respective counsel in this regard are dealt with, it would be necessary to notice the facts of the case in brief.
A complaint was filed by Vikram Batra against Naresh Batra and others under Sections 204, 420, 406, 467, 468, 471 and 120-B IPC. Complainant Vikram Batra is nephew of Naresh Batra and son of Dr.Mahesh Batra, elder brother of Naresh Batra. As per the complainant, his grand father, Sh.B.L.Batra, who was Chairman of Batra Groups of Companies, named Gajraj Beverages Pvt. Ltd., Batra Breweries and Distilleries Pvt. Ltd., Batra Hotels Pvt. Ltd., Batra Finance Pvt. Limited and Batra Films Pvt. Ltd. Sh.B.L.Batra died on 10.8.1993. It is averred that father of the complainant as well as his Uncle Naresh Batra used to help their father in running the business. Sh.B.L.Batra had two daughters, named Kiran Kakkar and Saroj Sareen and both are married. One daughter had died 15 years ago. All the family members were holding shares in the Batra Group of Companies on their respective names. Father of the complainant Crl. Misc. M No.18899 of 2005 (O&M) :{ 4 }:
was also Director of above mentioned Companies and having full faith in his father, Sh.B.L.Batra. He had signed certain papers in blank and so also certain share forms for smooth functioning of the Companies.
After death of Shri B.L.Batra, Naresh Batra took control of the Companies by professing himself to be Managing Director. The father of the complainant asked him to associate him as well in the process of decision making and functioning of the Companies. Naresh Batra accordingly had assured father of the complainant in this regard, stating that his interest would be safe and secured with him. Father of the complainant had also prayed for returning the blank signed documents given by him to his late father but accused Naresh Batra had allegedly evaded this issue by saying that keys of the almirah were not traceable. It is stated that accused Naresh Batra did not call the father of the complainant in various meetings and even avoided giving accounts of the Companies. Upon this, the father of the complainant became suspicious and wrote to Registrar of Companies on 16.8.1996, seeking information regarding his shares in the said Companies. Similar letters were also written by some of other family members. No response, however, was received even after reminders. Thereafter, father of the complainant obtained copies of the annual returns and came to learn that all their shares have been transferred to one Company, namely, Batra Films Private Limited. Even restrictions were imposed on the family of the complainant for entering in Batra Cinema. It is alleged that Batra Films Pvt. Ltd. did not have any substantial assets at all in its name Crl. Misc. M No.18899 of 2005 (O&M) :{ 5 }:
whereas the complainant and his family owned highest proportion of share in Gajraj Beverages Pvt. Ltd. in comparison to other share holders. It is accordingly alleged that the shares standing in the name of the complainant's family having worth of Crores of rupees were transferred into a Company, which had absolutely no assets worth the name. Full record of the transfer was sought but no reply was given by accused Mr.Naresh Batra.
On this basis and after waiting for quite some time, father of the complainant lodged an FIR against Naresh Batra under Sections 420, 467, 468 and 471 IPC. It is alleged that documents were forged to effect this transfer of shares. Even the signatures of the parents of the complainant and that of late B.L.Batra were forged. The reasons given for transferring the shares were really unbelievable and as such, no sane person could have agreed to this transfer. The manner in which the transfer of shares was sought to be affected is also narrated in the complaint, alleging that some minutes of the meeting were also fudged and fabricated. Reference is also made to the opinion given by FSL, New Delhi, opining that signatures of Sh.B.L.Batra found endorsed to effect transfer of shares were forged. Details as to how the shares were transferred and on whose names these were so transferred is also given in the complaint. Other acts committed by accused Mr.Naresh Batra have also been referred in the complaint to indicate that this was done in a fraudulent manner to cheat the complainant and his family members. It is also alleged in the complaint that because of the influence of accused Naresh Batra and his other co-accused, the Investigating Crl. Misc. M No.18899 of 2005 (O&M) :{ 6 }:
Officer did not prepare the police report properly despite the fact that D.I.G was monitoring the investigation. No challan was filed against the co-accused of Mr.Naresh Batra. As per the complainant, a case was made out for conducting investigation from all those co-accused on whose names the shares had been transferred but they were never joined in any investigation. Complainant family was having 90% of shares in Batra Films Limited but still Mr.Naresh Batra continued to show and work as Chairman-cum-Managing Director and his wife as Director even in this Company.
The complainant produced three witnesses in support of the complaint, besides himself appearing to substantiate the facts narrated in the complaint. He has deposed on the lines of the averments made in the complaint while appearing as CW-1. His father, Dr.Mahesh Batra was appeared as CW-2 and gave evidence in support of the complaint. Two police witnesses were produced to place on record the directions issued by the Court for sending certified copies of the documents to Shimla for the purpose of getting opinion of the handwriting expert. One of the officer appeared to depose about the investigation carried out by him in the FIR lodged by father of the complainant. On the basis of this material and the evidence on record, the trial Magistrate opined that prima-facie case was made out against the accused, who had conspired together for transferring these shares. Hence, the Court summoned Mr.Naresh Batra and others for offences under Sections 467, 471 and 120-B IPC. The Court, however, declined to summon the accused under Sections 420, 468 and 406 IPC.
Crl. Misc. M No.18899 of 2005 (O&M) :{ 7 }:
In this petition, initial challenge was to this order annexed with the petition as Annexure P-4. This order was passed on the basis of a complaint dated 9.4.2002, which is annexed with the petition as Annexure P-3. Prayer in the petition is for quashing this complaint as well as the summoning order.
While the case was going from one Court to another, the respondent-complainant had filed reply to this quashing petition. He also moved an application for placing on record certain documents annexed with the application as Annexures R-4 and R-5. Annexure R-4 is an order passed by trial Court, framing the charges against petitioner-Mr.Naresh Batra. Annexure R-5 is the charge sheet dated 17.8.2010, vide which the trial Court has framed charges against the petitioner under Sections 420, 467, 468, 471, 120-B IPC. In his reply, the respondent-complainant has contested the prayer made in the petition for quashing of the complaint and the summoning order. It is stated that the complainant became aware of the lapses committed by the investigating agency on submission of challan and accordingly filed this complaint within four months of the submission of the challan. It is also pleaded that on the basis of FIR, challan was presented only against petitioner, Mr.Naresh Batra, whereas the complaint instituted by him makes out a case against the petitioner and seven other co-accused, for which they all are summoned.
Reference is made to Section 210 Cr.P.C to rebut the contentions raised in the petition that case filed on the basis of FIR and on the basis of complaint for the same cause, can not be allowed to be proceeded against. It is accordingly pleaded that police case and the Crl. Misc. M No.18899 of 2005 (O&M) :{ 8 }:
complaint case can be tried in the same Court to secure the ends of justice. It is stated that where the complaint case and the FIR case divulge facts akin to each other, then these cases can be clubbed but where the facts are divergent, then they may be tried by the same Court simultaneously. It is stressed that underlying maxim is to secure justice. As per the complainant-answering respondent, his father was defrauded in a well calculated design and on account of conspiracy and, thus, eight accused have been summoned, including the petitioner, who is the sole accused in the FIR case. It is, therefore, urged that the petitioner can not plead for quashing of the complaint on the ground that he is an accused in an FIR. In the reply, it is pointed out that the effective steps were being taken by the complainant for consolidating/clubbing both the cases for simultaneous trial, which was being defeated by the petitioner, adopting delaying tactics. Reference is made to the orders passed by the Sessions Judge and the Chief Judicial Magistrate. Sessions Judge had directed the Chief Judicial Magistrate to decide the case of transfer of the case as per the direction issued by him. Ultimately, the trial Court had passed the order on 31.8.2009 and the complaint case was ordered to be clubbed with the State case titled `State Vs. Naresh Batra' with a further direction that the complaint shall be deemed to have been instituted on the police report against all the accused persons. This order is then challenged by the petitioner through Criminal Misc. M No.33469 of 2010.
In between, the petitioner had also filed an application for staying the proceedings pending before the trial Court and the Crl. Misc. M No.18899 of 2005 (O&M) :{ 9 }:
respondent came out with plea that now the charge has been framed and the cases stood clubbed for trial as a State case and hence, the prayer for quashing the complaint and the summoning order would be rendered infructuous.
In the background of the facts as noticed, the core issue that would arise for consideration would be the order whereby the complaint case and the FIR case were clubbed together and both were treated as State case.
Counsel for the petitioner would find fault with this order, terming this to be illegal and in violation of provisions of Section 210 Cr.P.C whereas counsel for the respondent would equally justify this order under the same provisions i.e. Section 210 Cr.P.C. Both the learned counsel have placed before me number of precedents in support of their respective pleas.
As per counsel for the petitioner, the complaint case and the State case can only be clubbed and tried together, if the Magistrate, during the course of dealing with the complaint case, comes to know that investigation by the police is in progress in relation to the offence, which is subject matter of enquiry or trial held by him, when he shall stay the proceedings of such enquiry or trial and call for the report on the matter from the police officer conducting the investigation. The submission is that the investigation in the police case was already concluded and challan has been presented and hence, the complaint, which was filed subsequently, could not be either clubbed or treated as a case filed by the State, as has been ordered by the Court. In contrast, counsel for the respondent would Crl. Misc. M No.18899 of 2005 (O&M) :{ 10 }:
contend that provisions in sub-sections of Section 210 (1) Cr.P.C., can not be read in isolation and in this case, the provisions of sub- section (2) and (3) of the Section can not be ignored. It would be of benefit to take note of the provisions of Section 210 Cr.P.C., which are:-
"210. Procedure to be followed when there is a complaint case and police investigation in respect of the same offence.
(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 Crl. Misc. M No.18899 of 2005 (O&M) :{ 11 }:
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." The submission by counsel for the complainant is that sub-section (1) would apply, when the Magistrate learns about the police investigation while dealing with the complaint case and upon having learnt so, the Magistrate is to stay the proceedings of such enquiry or trial and call for the report from the police. According to the learned counsel, the provisions of sub-section (2) or (3) of Section 210 Cr.P.C would be attracted in this case. As per Section 210(2) Cr.P.C., when a report has already been made by Investigating Officer under Section 173 Cr.P.C and when the Magistrate had taken cognizance on this report against any person, who is also an accused in the complaint case, then the Magistrate shall enquire into and 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. It is this provision, which according to the counsel for the complainant would regulate the proceedings in this case as report under Section 173 Cr.P.C. in this case had already filed when this complaint was filed and, thus, the Magistrate would have to take recourse to sub-
section (2) of Section 210 Cr.P.C. by directing that both the complaint case as well as the police case be tried together as a case arising out of a police report as if both have been instituted on a police report. The counsel for the complainant says that Sub-section (3) of Section 210 Cr.P.C would not be attracted in this case as that will apply to those cases where the police report does not relate to any Crl. Misc. M No.18899 of 2005 (O&M) :{ 12 }:
accused in the complaint case or where Magistrate does not take cognizance of any offence on the police report, then he has to proceed with the enquiry and trial, which he might have stayed under sub-section (1). He is then proceed in accordance with law on the said complaint.
In support of this stand, the counsel has relied upon various judgements. Reference is made to Sankaran Motira Vs. Sadhana Das & Anr., 2006 (2) R.C.R. (Criminal) 389. While going into the scope of Section 210 Cr.P.C and its applicability, the Hon'ble Supreme Court has observed that this Section is intended to ensure that the private complaints do not interfere with the course of justice. It is meant to prevent harassment to the accused twice. This is also to obliviate anomalies, which might arise from taking cognizance of the same offence more than once. It is further noted that this Section can be invoked, when the following conditions are satisfied i.e.:-
"(i) there must be a complaint pending for enquiry or trial.
(ii) investigation by police must be in progress in relation to same offence;
(iii) a report must have been made by the police officer under Section 173;
(iv) Magistrate must have taken cognizance of an offence against a person who is accused in the complaint case."
As per counsel for the complainant, all the conditions are satisfied in this case and, as such, the order passed by the Trial Court directing trial of the complaint case as well as the FIR case is fully justified and is in accordance with the legal position.
Crl. Misc. M No.18899 of 2005 (O&M) :{ 13 }:
Delhi High Court in an unreported case titled A.K.Jajodia Vs. State of (through C.B.I., Criminal Revision No.737 of 2007, decided on 27.5.2009, has observed as under:-
"Once the criteria laid down in Sub-Section (1) are satisfied, then if the Magistrate takes cognizance of `any offence' against `any person who is an accused in the complaint case' on the basis of police report, it is the duty of the Magistrate under Sub-Section (2) to try the two cases together as if they were instituted on a police report. The respondents contend that the words `any offence' used in Sub-Section (2) show that the offence cognizance of which is taken on the basis of the police report should be the same which is being enquired into or tried in the complaint case. In my opinion this contention is not well-founded. The word `any' does not denote or refer to a particular or a specific offence. On the other hand, it suggests that it is sufficient if cognizance of `an offence' is taken.
Xx xx xx xx xx It, therefore, follows that if on the basis of a police report, cognizance of an offence, though it may be different from the offence mentioned in the complaint, is taken, the first ingredient of Sub-Sec. (2) is satisfied. The second ingredient of the Sub-Section is that cognizance of offence should be taken against `any person who is an accused in the complaint case'. This would be satisfied if Crl. Misc. M No.18899 of 2005 (O&M) :{ 14 }:
cognizance of the offence is taken against even only one of the person accused in the complaint case. Where both the ingredients are satisfied, the procedure to be followed in the two cases is as if both were instituted in a police report."
It is further observed in this case that it is the commonality of the incident, which is the subject matter of complaint and the FIR under investigation by the police and not the label of particular transgression of law fixed by the complainant in the complaint or FIR, which if it were not so, the provisions of Section 210 Cr.P.C can be evaded by a mere device of labelling the transaction to the different offences. Accordingly, it is observed that for application of Section 210 (2) Cr.P.C., the two conditions, which are to be satisfied are, where on a report of the police a cognizance of some offences has been taken by the Magistrate and any of the person accused in the complaint case is amongst the accused against whom the Magistrate has taken cognizance of an offence on the basis of a police report. It is accordingly observed that merely because the police investigation was conducted prior to filing of the complaint, it can not be said that the situation as contemplated under Section 210 Cr.P.C, was not attracted. Need and necessity to give a purposive and harmonious interpretation to the provisions contained in this Section in the facts of case would be there. In fact, this would meet the objection being raised by counsel for the petitioner to a large extent.
Reference is also made to a decision of this Court in Crl. Misc. M No.18899 of 2005 (O&M) :{ 15 }:
Kamaljit Singh and others Vs. State of Punjab and another, 2009 (4) RCR (Criminal) 433, where this Court had declined to quash the complaint and the summoning order sought by the husband on the ground that FIR for the same allegation had also been lodged and was being prosecuted and directions were issued for clubbing the FIR and the complaint case together. Relevant observations of this Court are as under:-
"To deal with this first contention, it is observed that provisions of Section 210 Cr.P.C. Can always be invoked for clubbing the FIR case and the complaint case. The helpless wife could not wait in case FIR is not registered. Therefore, she has taken recourse to alternative remedy available to her. In complaint case, all the three accused have been summoned but in the FIR only two persons were found guilty. Therefore, the only option available is that both the complaint case and FIR case be clubbed under Section 210 Cr.P.C. Thus, necessary directions are issued to the Area Magistrate to club both the cases under Section 210 Cr.P.C."
In Namathoti Sankaramma Vs. State of A.P., 2001(2) RCR (Criminal) 323, Andhra Pradesh High Court has observed that where the Magistrate has taken cognizance of both FIR and the complaint case in the same incident, then the complaint case would merge into the police case and Magistrate has to consider the material available in the complaint case as if it is a material in the police report. In this case again, two conditions, which are noticed Crl. Misc. M No.18899 of 2005 (O&M) :{ 16 }:
above are said to be the conditions, which are required to be satisfied for applicability of Section 210 (2) Cr.P.C. Besides, it is observed that the Section stipulates commonality of atleast one accused person amongst whose cognizance has been taken on a police report and those who are the accused in the complaint case. The requirement of Section 201 (2) Cr.P.C is satisfied if cognizance is taken in respect of any offence and it is not necessary that the cognizance should have been taken in respect of all the offences, which are covered in the complaint case. This legal position apparently is satisfied in this case.
The view expressed by Orissa High Court in Chintamani Parida and others Vs. Jadumani and others, 1981 Cri.L.J. 54, to the effect that where the Court has taken cognizance in respect of some of the accused, then the complaint must be deemed to be a police report in regard to accused persons, who are common in both the cases, was dissented upon and it is observed by the Court that it was unable to agree with the view taken by the Orissa High Court that where all the accused are not common in respect of other accused, Section 210 (3) Cr.P.C. applies.
Reliance is also placed on State Vs. Har Narain and others, 1976 Cri.L.J. 562, where the Court has listed the requisites for amalgamating the case instituted on a complaint and a case instituted on a police report. In this regard, it is observed as under:-
"Once the criteria laid down in Sub-Section (1) are satisfied, then if the Magistrate takes cognizance of `any offence' against `any person who is an accused in the Crl. Misc. M No.18899 of 2005 (O&M) :{ 17 }:
complaint case' on the basis of police report, it is the duty of the Magistrate under Sub-Section (2) to try the two cases together as if they were instituted on a police report. The respondents contend that the words `any offence' used in sub-Section (2) show that the offence cognizance of which is taken on the basis of the police report should be the same which is being enquired into or tried in the complaint case. In my opinion this contention is not well founded. The word `any' does not denote or refer to a particular or a specific offence. On the other hand, it suggests that if is sufficient if cognizance of `an offence' is taken. The Concise Oxford Dictionary gives the meaning of `any' thus: "one, some (no matter which) as have you any wool? Have you any of them? Were any Frenchmen there?" The Shorter Oxford Dictionary gives its meaning when used as singular equivalent to `a' thus: "no matter which, or what", when used as plural equivalent to `some' it means "no matter which, of what kind or how many." It, therefore, follows that if on the basis of a police report, cognizance of an offence, though it may be different from the offence mentioned in the complaint, is taken, the first ingredient of Sub-Section (2) is satisfied. The second ingredient of the Sub-Section is that cognizance of offence should be taken against `any person who is an accused in the complaint case.' This would be satisfied if cognizance of the offence is taken Crl. Misc. M No.18899 of 2005 (O&M) :{ 18 }:
against even only one of the persons accused in the complaint case. Where both the ingredients are satisfied, the procedure to be followed in the two cases is as if both were instituted as a police report.
The ingredients of Sub-Sec. (3) are couched in the negative. The Shorter Oxford Dictionary shows that when the word `any' is used with a preceding negative it means "None at all, of any kind, etc., not even one". It follows therefore that the expression 'the police report does not relate to any accused in the complaint case', means that none of the accused in the complaint case is the subject- matter of the police report. Similarly the expression `does not take cognizance of any offence on the police report' means that cognizance of no offence is taken. It is only when the conditions laid down under Sub-Section (3) are satisfied that the two cases have to be tried according to the separate procedure laid down for each of them. This Sub-Section also shows that as long as the police repot relates to one of the accused mentioned in the complaint case and the Magistrate takes cognizance of an offence on the basis of the police report, the case will fall under Sub-Section (2) and the procedure mentioned therein will have to be followed."
This Court in Harbhajan Singh Vs. Gurdip Kaur, 1997 (3) RCR (Criminal) 345 did not find any fault in the order passed by the Magistrate clubbing the complaint case and the FIR case where Crl. Misc. M No.18899 of 2005 (O&M) :{ 19 }:
the complainant had filed a complaint on the same facts, stating that basic allegations constituting an offence against the accused had deliberately not been mentioned in the challan. The Court found that it is open to the court to amalgamate two proceedings and proceed with them as only one case. It is further observed that constitution of two parallel proceedings against the same accused would amount to trying the accused twice for the same offence. In this regard, reliance is placed on Tula Ram and others Vs. Kishore Singh, AIR 1977 Supreme Court 2401.
For the purpose of clubbing and trying together cases arising out of the complaint and police report, support is taken from Pawan Kumar Vs. State of Haryana, 1991 (1) RCR (Criminal) 178, Namothoti Sankaramma's case (supra), Mohammed Gouse Pasha Vs. Tummala Venkata Krishna Rao and another, 2005 Cri.C.J. 1500. Similar is the ratio laid down in Ranjit Singh and others Vs. State of Punjab etc., 2006 (4) RCR (Criminal) 230 and Dilawar Singh Vs. State of Delhi, 2007 (5) R.A.J. 37. Rather in the case of Dilawar Singh (supra), the provisions of Section 210 Cr.P.C. have been held to be mandatory. Direction to club the complaint case with the police case was given in Smt.Kamlesh Bhardwaj and Anr. Vs. State of U.P. And Anr., 2007 (5) RCR (Criminal) 660, while negating the prayer of the accused for quashing the proceedings instituted on the complaint in respect of the same incident on the plea that he could not be tried twice for the same offence.
All the accused may not be same in both the complaint as well as FIR case but the cases can be tried together, when the Crl. Misc. M No.18899 of 2005 (O&M) :{ 20 }:
complaint case and the police case are in respect of same offence or when offence arising in the course of same transaction. The trial jointly of both the cases if held, would not prejudice the accused persons. This is so held in Chinnu Naicken Vs. Rangasami, 1983 Cri.L.J. 494. Even otherwise, as per Section 223 Cr.P.C, person accused of same offence committed in the course of same transaction can be tried together and, thus, commonality of the accused for clubbing the case would not be a legally essential requirement. In Lalu Prasad @ Lalu Prasad Yadav Vs. State through CBI, 2003 Cri.L.J. 4452, the Hon'ble Supreme Court has held that Section 223 Cr.P.C gives a discretion to the Magistrate to amalgamate cases and hold a joint trial but after satisfying that the accused persons are not prejudicially affected and that it is expedient to amalgamate cases.
Reference is also made to a decision of this Court in Crl.Misc. No.25447 M of 2005 (Mandeep Arora and others Vs. State of Punjab and another), decided on 17.12.2007, where the directions were issued for clubbing the complaint case and the FIR case for being tried together, it being within the purview of Section 210 (2) Cr.P.C. In this case, reference is also made to the observations of the Joint Committee of Parliament, which are as under:-
"It has been brought to the notice of the Committee that sometimes when a serious case is under investigation by the police, some of the persons file complaint and quickly get an order of acquittal either by cancellation or Crl. Misc. M No.18899 of 2005 (O&M) :{ 21 }:
otherwise. Thereupon the investigation of the case becomes infructuous leading to miscarriage of justice in some cases. To avoid this, the Committee has provided that where a complaint is filed and the Magistrate has information that the police is also investigating the same offence, the Magistrate shall stay the complaint case. If the police report (under Section 173) is received in the case, the Magistrate should try together the complaint case and the case arising out of the police report. But if no such case is received the Magistrate would be free to dispose of the complaint case. This new provision is intended to secure that private complainants do not interfere with the course of justice."
On the other hand, counsel for the petitioner has referred to Savera Sidhu Vs. Harleen Sidhu and another, 2011(2) RCR (Criminal) 442. In this case summoning order was set-aside with a direction to the Court to pass an appropriate order, complying with the mandatory provisions of Section 210 Cr.P.C. This case may not help the line of submissions pursued by the counsel for the petitioner. Compliance of the provisions of Section 210 Cr.P.C. is held to be a mandatory and summoning order was only set-aside for complying with the said mandatory provisions.
Here the petitioner, apparently is aggrieved against the action of clubbing these cases together, though initially he had come up with the prayer that he can not be waxed twice to face trial for the same allegations in two separate proceedings. His grievance Crl. Misc. M No.18899 of 2005 (O&M) :{ 22 }:
obviously would have been to club these cases together. That is what is the purpose meant to be achieved by Section 210 Cr.P.C., as has been noticed in the case of Sankaran Moitra case (supra) i.e. to prevent harassment to the accused twice.
In Pal @ Palla Vs. State of Uttar Pradesh, 2010 (4) RCR (Criminal) 511, the clubbing of cases was not approved on the ground that version in the complaint case and the police report were totally different, though were arising out of the same transaction. This apparently is not the situation in the present case. The plea for recording evidence separately and for pronouncing the judgement separately in a complaint and an FIR case, reliance is placed on Ranjit Singh Vs. State of Haryana, 1997 (1) RCR (Criminal) 620. In fact, in this case, Ranjit Singh, petitioner, was the accused and had approached the Court on the ground that separate trial in a complaint and FIR case will prejudice his right as he would not be able to formulated and modulate his line of defence fairly. The direction for holding simultaneous trial was issued in this background. The Court in this case has observed that treating of a complaint case as if filed on a police report is based on two factors i.e. accused persons are common in both the cases and that the version sought to be proved is more or less the same. It may not be necessary to have identical offences in both the cases. These principles are stated to be well settled and in this regard, reliance has been placed on Kadiresan Vs. Kasim, 1987 Cri.L.J. 1225, Harjinder Singh Vs. State of Punjab and others, AIR 1985 Supreme Court 404. The test, which is to be seen while issuing such direction is where the version in two Crl. Misc. M No.18899 of 2005 (O&M) :{ 23 }:
cases is mutually exclusive and materially different. In this case, the Court was satisfied that the case would be contradictory to a great extent to each other and so the amalgamation was not permitted. Again, that is not the situation in the present case.
In Bakha Singh Vs. State of Haryana, 1992(1) RCR 493 relied upon by the petitioner, the Court was dealing with the provisions of Section 223 in regard to joint trial of person accused of the same offence, which was not permitted on the ground that two sets of accused can not be described to be the person accused of the same offence. How this ratio would govern this case can not be made out.
Clubbing of cases was not permitted in Banchhanidhi Mahapatra and others Vs. State of Orissa and another, 1992 Cri.L.J. 1739, on the ground that no police investigation was pending, when the complaint was filed. In this case, the trial Court had clubbed both the cases, when the order discharging the accused was reversed in a revision. That would be the peculiarity in this case, besides the absence of consideration of provisions of Section 210(2) Cr.P.C. by the Court while passing this order. The view as expressed in this case is apparently not in consonance with the statutory provisions of sub-section (2) of Section 210 Cr.P.C.
The prayer in Bhanja Paramanik Vs. State of Orissa, 2003 Cri.L.J. 982, was for adding an offence under Section 376 IPC and also for adding three accused and for their joint trial in an FIR case under Section 363, 366 IPC, which was not allowed, as the offences were not common and so the accused were made to face a Crl. Misc. M No.18899 of 2005 (O&M) :{ 24 }:
separate trial. This is a case of trial in one case for clubbing it of trial with another case.
The clubbing was not permitted in Kishan Lal and others Vs. State and others, 1999 Cri.L.J. 4493, as accused in complaint case and the FIR case were different. Commonality of the accused is one of the essential condition for clubbing the cases under Section 210(2) Cr.P.C., as has been noticed above on the basis of law laid down in large number of cases, which have been referred to in the fore-going part of this judgement.
In Harjinder Singh's case (supra), clubbing was not approved as prosecution version in both the cases were different. Similarly, the plea of clubbing was not allowed in Nunaram and others Vs. State of Rajasthan and another, 1993 Cri.L.J. 1274 on the ground that version in the complaint case was totally different from the version in the police case, which was also implicating more persons than were found in the police report. In these facts, Section 210 Cr.P.C. was not found attracted. Case of Chintamani Parida (supra) has already been referred to above and was not approved in the case of Namathoti Sankaramma's case (supra). The ratio of law in this case apparently is not in consonance with the ratio that would emerge from various judgements noticed above, which have been referred to by counsel for the petitioner.
Let us examine the facts in the present case in the light of law that would emerge from the ratio in the cases noted above.
The purpose and applicability of Section 210 Cr.P.C. and Crl. Misc. M No.18899 of 2005 (O&M) :{ 25 }:
the distinction between sub-section (1) and sub-section (2) thereof has clearly been noticed in various judgements noted above. This provision is aimed at preventing harassment to the accused and to avoid the accused being waxed to defend himself twice in the same case. It is to obviate anomalies that may arise if these two cases on the basis of the complaint and FIRs are tried separately. The condition on which the provisions of Section 210 Cr.P.C can be invoked have also been noticed above and these are the pendency of the complaint for enquiry or trial, the investigation by the police or the report must have been made under Section 173 Cr.P.C., where the Magistrate has taken cognizance of an offence against a person who is accused in a complaint case as well. This being the law and also the purpose, as was noticed by the Joint Parliament Committee, should govern the clubbing of the complaint case and the FIR case in the present case. The submission that investigation should be pending for putting in operation, the provisions of Section 210 Cr.P.C., would apparently be against the purpose for which this Section has been enacted and this plea would not be in consonance with the statutory provisions of sub-Section (2) of Section 210 Cr.P.C. Even the Joint Committee of Parliament has clearly noticed that if the police report (under Section 173 Cr.P.C) is received in the case, the Magistrate should try the complaint case and the case arising out of the police report together. Thus, the plea and the grounds urged by the petitioner to find fault with the order passed by the trial Judge are legally not tenable.
In view of the detailed discussion above and on the basis Crl. Misc. M No.18899 of 2005 (O&M) :{ 26 }:
of law, the action of the trial Court in clubbing the complaint case and the FIR case in the instant case is justified and legally in order and would not call for any interference. There is substance in the submission made by counsel for the petitioner that co-accused of the petitioner have filed a revision against the order of clubbing the cases, which they have chosen not to argue. As per the counsel, the present petition apparently was filed for quashing of the complaint, when the order of clubbing was not there and the petitioner had approached this Court with a grievance that he will be waxed twice to face prosecution in the complaint and the FIR case. His co-accused not being accused in the FIR, could not make this grievance and so are seeking quashing of the complaint and the summoning order. Subsequently, the complaint case and the FIR case was clubbed together and was ordered to be tried as if complaint was filed as a police case, which would have rendered the prayer of quashing the summoning order and the complaint infructuous. Petitioner, Mr.Naresh Batra, then has challenged the order directing amalgamation of complaint case and the FIR case. It would be worth notice that counsel for the petitioner has also prayed for trying the both cases together but separately, which apparently is with an aim to see that the prayer for quashing of the complaint or the summoning order is not rendered infructuous after amalgamation of both the cases.
Even a plea was made to find fault with the summoning order on the ground that the statement of the accused could not have been relied upon by the Court to summon the petitioner and his co-
Crl. Misc. M No.18899 of 2005 (O&M) :{ 27 }:
accused in the complaint. To support this plea, the counsel for the complainant-respondent has referred to the case of State of Bombay Vs. Kathi Kalu Oghad, AIR 1961 Supreme Court 1808, where the issue in regard to the accused being compelled to be a witness against himself has been considered, ultimately to record the following conclusion:-
"In view of these considerations, we have come to the following conclusions :-
(1) An accused person cannot be said to have been compelled to be a witness against himself simply because he made a statement while in police custody, without anything more.' In other words, the mere fact of being in police custody at the time when the statement in question was 'made would not., by itself, as a proposition of law, lend itself to the inference that the accused was compelled to make the statement, though that fact, in conjunction with other circumstances disclosed in evidence in a particular case, would be a relevant consideration in an enquiry whether or not the accused person had been compelled to make the impugned statement.
(2) The mere questioning of an accused person by a police officer, resulting in a voluntary statement, which may ultimately turn out to be incriminatory, is not "compulsion".
(3) `To be a witness' is not equivalent to
Crl. Misc. M No.18899 of 2005 (O&M) :{ 28 }:
garnishing evidence' in its widest significance ; that is to say, as including not merely making of oral or written statements but also production of documents or giving materials which may be relevant at a trial to determine the guilt or innocence of the accused. (4) Giving thumb impressions or impressions of foot or palm or fingers or specimen writings or showing parts of the body by way of identification were not included in the expression "to be a witness".
(5) "To be a witness" means imparting knowledge in respect of relevant facts by an oral statement or a statement in writing, made or given in Court or otherwise. (6) "To be a witness" in its ordinary grammatical sense means giving oral testimony in Court. Case law has gone beyond this strict literal interpretation of the expression which may now bear a wider meaning, namely, bearing testimony in Court or out of Court by a person accused of an offence, orally or in writing.
(7) To bring the statement in question within the prohibition of Art. 20(3), the person accused must have stood in the character of an accused person At the time he made the statement. It is not enough that he should become an accused, any time after the statement has been made."
As is noticed in this case, to bring the statement in question within the prohibition of Article 20(3) of the Constitution, Crl. Misc. M No.18899 of 2005 (O&M) :{ 29 }:
person accused must have stood in the character of an accused person at the time he made the statement. It is not enough that he should become an accused any time after the statement has been made. For terming the statement as a compulsive testimony, the Court has made following relevant observations:-
"In order to bring the evidence within the inhibitions of clause (3) of Art. 20 it must be shown not only that the person making the statement was an accused at the time, he made it and that it had a material bearing on the criminality of the maker of the statement, but also that be was compelled to make that statement. "Compulsion' in the context, must mean what in law is called 'duress'. In the Dictionary of English Law by Earl Jowitt, 'duress' is explained as follows.:
" Duress is where a man is compelled to do an act by injury, beating or unlawful imprisonment (sometimes called duress in strict sense) or by the threat of being killed, suffering some grievous bodily harm, or being unlawfully imprisoned (sometimes called menace, or duress per minas). Duress also includes threatening, beating or imprisonment of the wife, parent or child of a person."
The compulsion in this sense is a physical objective act and not the state of mind of the person making the statement, except where the mind has been so conditioned by some extraneous process as to render Crl. Misc. M No.18899 of 2005 (O&M) :{ 30 }:
the making of the statement involuntary and, therefore, extorted. Hence, the mere asking by a police officer investigating a crime against a certain individual to do a certain thing is not compulsion within the meaning of Art. 20 (3). Hence, the mere fact that the accused person, when he made the statement in question was in police custody would not, by itself, be the foundation for an inference of law that the accused was compelled to make the statement. Of course, it is open to an accused person to show that while he was in police custody at the relevant time, he was subjected to treatment which, in the circumstances of the case, would lend itself to the inference that compulsion was, in fact, exercised. In other words, it will be a question of fact in each case to be determined by the Court on weighing the facts and circumstances disclosed in the evidence before it'."
In Nandini Satpathy Vs. P.L.Dani and another, (1978) 2 Supreme Court Cases 424, the Hon'ble Supreme Court considered the question of prohibitive sweep of Article 20(3) of the Constitution and in this regard, held that Section 161 Cr.P.C enables the police to examine accused during investigation, though the sweep of Article 20 (3) goes back to the stage of police interrogation and not during the commencement of the proceedings in the Court only. In this regard, the Court has held as under:-
"We hold that Section 161 enables the police to examine Crl. Misc. M No.18899 of 2005 (O&M) :{ 31 }:
the accused during investigation. The prohibitive sweep of Article 20(3) goes back to the stage of police interrogation-not, as contended, commencing in court only. In our judgment, the provisions of Article 20(3) and Section 161 (1) substantially cover the same area, so far as police investigations are concerned. The ban on self-accusation and the right to silence, while one investigation or trial is under way, goes beyond that case and protects the accused in regard to other offences pending or imminent, which may deter him from voluntary disclosure of criminatory matter. We are disposed to read 'compelled testimony' as evidence procured not merely by physical threats or violence but by psychic torture, atmospheric pressure, environmental coercion, tiring interrogative prolixity, overbearing and intimidatory methods and the like not legal penalty for violation. So, the legal perils following upon refusal to answer, or answer truthfully, cannot be regarded as compulsion within the meaning of Article 20(3). The prospect of prosecution may lead to legal tension in the exercise of a constitutional right, but then, a stance of silence is running a calculated risk. On the other hand, if there is any mode of pressure, subtle or crude, mental or physical, direct or indirect, but sufficiently substantial, applied by the policeman for obtaining information from an accused strongly Crl. Misc. M No.18899 of 2005 (O&M) :{ 32 }:
suggestive of guilt, it becomes 'compelled testimony', violative of Article 20(3)."
In view of the law as noted above, the submission of counsel for the respondent is not fully unjustified, when he urges that the statements of the accused as recorded by the police, when they were not accused in this case and were recorded under Section 161 Cr.P.C., would not be covered by the prohibitive sweep of Article 20 (3) of the Constitution of India. The counsel would accordingly justify the action of the Trial Court in making reference to these statements while summoning the accused in the complaint case. As per the counsel that was not the only evidence or material on the basis of which the petitioner and other co-accused were summoned in the complaint and has referred to number of documents and other material, which was relied upon by the Court while summoning the petitioner and other co-accused in the complaint case.
I, therefore, do not find any merit in the petition. No case for quashing the complaint or summoning order is made out against the petitioner. There is no legal infirmity noticed in the order passed by the trial Court, clubbing the complaint case and the FIR case for the purpose of trial and it is in consonance with the legal position emerging from Section 210 Cr.P.C., which is a mandatory provision. CRIMINAL MISC. M NOS.12545 OF 2010 & 2458 OF 2009 This petition is filed by Sandeep Kakar praying for setting- aside the order dated 13.2.2010, whereby attachment of his property was ordered and also the subsequent order dated 4.3.2010, vide which the prayer of the petitioner to seek withdrawal of the Crl. Misc. M No.18899 of 2005 (O&M) :{ 33 }:
attachment order in respect of House No.76, Sector 12, Panchkula, was declined.
Petitioner, Sandeep Kakar, has filed this petition through special power of attorney and has not approached the Court in his personal capacity. The obvious reason in this regard as can be made out from the petition is that the petitioner has been declared as a proclaimed offender. When the proclamation was issued, the petitioner appears to have filed this petition, especially when the order attaching the salary, passport and house was made by the trial Judge. Application, seeking exemption of accused Amrita Batra was also moved before the trial Court. Co-accused, Naresh Batra, submitted on behalf of the petitioner that they have filed a petition for quashing the complaint etc. before the High Court and accordingly prayed for staying the proceedings. The Court, however, declined the said prayer as there was no stay granted by this Court. It is also noticed that earlier Naresh Batra had approached this Court by way of Crl.Misc. M No. 30732 of 2008 seeking quashing of the non- bailable warrants issued against petitioner, Sandeep Kakar and also for setting-aside the order passed by Additional Sessions Judge. The complainant had appeared before this Court in the said petition and had expressed his concern to say that petitioner, Sandeep Kakar, should be made to join criminal proceedings pending against him before the trial Magistrate. The counsel appearing for the petitioner gave an undertaking before this Court that Sandeep Kakar, who was residing in United States of America, would appear before the trial Magistrate on 12.10.2009 and would attend the proceedings. The Crl. Misc. M No.18899 of 2005 (O&M) :{ 34 }:
petitioner still failed to comply with the order and has chosen not to appear to join the proceedings before the trial Court till date.
On an application moved by the petitioner, he was granted extended time till 10.3.2010 to appear before the trial Magistrate. This Court disposed of the prayer permitting the petitioner to appear on or before 27.1.2010. The petitioner challenged these orders of attachment without appearing before the trial Court despite his undertaking.
When this petition came up for hearing before this Court, it is noticed that the petitioner was still staying in U.S.A and had filed this petition through special power of attorney. The counsel thereafter took time to satisfy the Court whether this petition could be filed by a person, who is an accused in a case pending against him in a Court of law in India but while he is residing in a foreign country. Thereafter, the counsel for the petitioner only prayed for adjournment to make submissions in response to this query. No notice was issued. The case in this manner was adjourned till 8.7.2010 to enable the counsel to satisfy this query only. On 8.7.2010, the case was listed before another Bench, where it was simply adjourned on the request made by the counsel on number of occasions till 9.11.2010. On this day, this petition was ordered to be heard with Crl.Misc. M No.2458 of 2009 on 15.11.2010. This petition was then listed before yet another Bench and was adjourned on the request of counsel for the petitioner for arguments. This process then followed and the case was adjourned on various dates without issuing any notice. Still the presence of the counsel on behalf of the respondents was shown. On Crl. Misc. M No.18899 of 2005 (O&M) :{ 35 }:
5.9.2011, the adjournment was sought on the ground that the matter was pending between the parties before the Mediation Centre.
Thereafter, again the petition was adjourned from time to time till 7.3.2012. On that day, this case alongwith other petitions pending between the parties was ordered to be listed before this Court under the directions of Hon'ble the Chief Justice. This is how, the petition has now been taken up for hearing, it being connected with Criminal Misc. M No.2458 of 2009 with which it was ordered to be so heard.
Even at the time of arguments, counsel for the petitioner could not show any law, which would entitle him to maintain this petition through attorney and that too without complying with the undertaking, which was given on his behalf by his counsel. The counsel has neither chosen to respond to the query of this Court ever since May 2010 and also not complied with the undertaking filed on his behalf to appear before the Court to join the proceedings. The petitioner is an accused and is seeking quashing of the orders by filing this petition through attorney. Not only this, in Criminal Misc. M No.2458 of 2009, the petitioner has approached this Court for quashing of the complaint and the summoning order, pursuant to which, the impugned order of attachment of property has been passed against the petitioner. Similar prayer made by co-accused Naresh Batra for quashing of the complaint and the summoning order has been declined by passing a detailed order in Criminal Misc. M No.18899 of 2005. For the same reason, the present petition is also deserves to be dismissed. In addition, the petitioner a proclaimed offender and so far has not surrendered to join the proceedings Crl. Misc. M No.18899 of 2005 (O&M) :{ 36 }:
despite the undertaking given on his behalf by his counsel, as already noticed. This would be an added reason to decline the prayer made in Crl. Misc. M No.2548 of 2009 for quashing of the complaint and the summoning order.
Thus, without going into the question of his right to file this petition through attorney, I am of the considered view that the petitioner does not deserve to be heard, once he has failed to comply with the undertaking given on his behalf before this Court and has failed to join proceedings. He is a proclaimed offender and his properties have been attached. Unless, the petitioner surrenders himself before law, he would not have any right to be heard by filing this petition through attorney. Proclaimed offender can also not be heard to seek quashing of the summoning order or the complaint before he appears and surrender himself before law.
The petitions are accordingly dismissed.
May 29, 2012 ( RANJIT SINGH ) khurmi JUDGE