Chattisgarh High Court
Ratanlal Agrawal vs State Of Chhattisgarh on 1 September, 2023
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AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRMP No. 411 of 2020
1. Ratanlal Agrawal S/o Late Phool Chand Agrawal Aged About 82
Years R/o Hospital Colony, Surajpur, P. S. Surajpur, District
Surajpur Chhattisgarh.
2. Anand Kumar Agrawal S/o Ratanlal Agrawal Aged About 40
Years R/o Hospital Colony, Surajpur, P. S. Surajpur, District
Surajpur Chhattisgarh.
3. Arun Kumar Paswan S/o Ramchand Paswan Aged About 28
Years R/o Vargadawa, Vishnupur, P. S. Pusdarpur, District
Maharajganj U. P. Presently R/o Tilsiwa, P. S. Surajpur, District
Surajpur Chhattisgarh.
---- Petitioners
Versus
1. State Of Chhattisgarh Through Station House Officer Of Police
Station Surajpur, District Surajpur Chhattisgarh.
2. Kalwant Goyal S/o Shri Prakash Chand Goyal Aged About 55
Years R/o Bhaiyyathan Road, Surajpur, District Surajpur
Chhattisgarh.
---- Respondents
(Cause Title is taken from Case Information System) For Petitioners : Mr. Sourabh Dangi, Advocate For Respondent No.1 : Mr. Chitendra Singh, P.L. For Respondent No.2 : Mr. K. Rohan, Advocate Hon'ble Shri Justice Rakesh Mohan Pandey Order on Board 01.09.2023
1) The petitioners have filed this petition for quashing the charge- sheet bearing No. 133 of 2013 registered at Police Station Surajpur, District Surajpur, the proceedings of Criminal Case No. 594 of 2013 pending before the Chief Judicial Magistrate, Surajpur and all consequential proceedings including the order dated 29.01.2020 passed by the learned Sessions Judge, Surajpur, District Surajpur in Criminal Revision No. 49 of 2019. -2-
2) The facts of the present case are that respondent No.2 lodged a written report on 05.11.2012 alleging that on 09.06.2012 the petitioners entered into the land belonging to the complainant's mother and assaulted the complainant and threatened him for life. On such information, the police registered the FIR against the petitioners on 01.03.2013 for the commission of an offence punishable under Sections 447, 506 and 34 of the Indian Penal Code. At the same time, respondent No.2 filed a complaint case under Section 200 of Cr.P.C. alleging that on 09.06.2012, the petitioners entered into the land bearing survey No. 2706/1, 2707/1 and 2708/1 situated at Main Road, Surajpur and illegally started construction over it and when the complainant made efforts to stop the construction work the petitioners got annoyed, they abused him, pushed him and threatened him for life.
3) The FIR was registered by the Police on 01.03.2013 whereas the learned trial Court took cognizance of the complaint case on 12.12.2012. The learned trial Court framed charges against the petitioners for the commission of an offence punishable under Sections 447, 506 read with Section 34 of IPC on 11.12.2019 in Criminal Case No. 594 of 2013. The petitioners preferred a criminal revision against the order framing charge dated 11.12.2019 but the same has been dismissed by the learned Sessions Judge Surajpur, District Surajpur in Criminal Revision No. 49 of 2019 vide order dated 29.01.2020.
4) Learned counsel appearing for the petitioners would submit that the complaint case was filed against respondent No.2 by petitioner No.1 prior to 29.08.2012 whereas the written report was lodged against the petitioners on 05.11.2012 and the delay part has not been explained properly in both the cases. He would -3- further submit that the learned trial Court has taken cognizance of the complaint case as well as the final report submitted by the police and in the police case, the learned trial Court has framed charges. He would also submit that the learned trial Court ought to have complied with the provisions of Section 210 of Cr.P.C. He would place reliance on the judgment of the Hon'ble Supreme Court rendered in the matter of Kapil Agarwal and Others vs. Sanjay Sharma and Others, reported in (2021) 5 SCC 524.
5) On the other hand, learned counsel for the respondents would submit that the petitioners in the instant petition have challenged the criminal proceedings of Criminal Case No. 594 of 2013 parties being "State of Chhattisgarh vs. Ratanlal Agrawal and Others" including the final report. He would support the judgment passed by the learned Sessions Court. He has placed reliance on the judgments passed by the Hon'ble Supreme Court in the matter of Sankaran Moitra vs. Sadhna Das and Another, reported in (2006) 4 SCC 58 and Dilawar Singh vs. State of Delhi, reported in (2007) 12 SCC 641.
6) I have heard learned counsel for the parties and perused the documents carefully.
7) It appears that respondent No.2 filed a complaint case on 05.11.2012 alleging that on 09.06.2012 the petitioners entered into the land bearing survey Nos. 2706/1, 2707/1 and 2708/1 situated at Main Road, Surajpur and illegally raised construction over the said piece of land. Prior to that, on the same date i.e. on 05.11.2012, a written report was lodged before the Police Station Surajpur. The police registered the FIR for the commission of an offence punishable under Sections 447 and 506 read with Section 34 of IPC against the petitioners. The FIR was lodged on -4- 01.03.2013 whereas the charge sheet was filed before the learned Chief Judicial Magistrate, Surajpur on 20.06.2013.
8) The order sheets annexed along with this petition would reveal that the learned trial Court has taken cognizance of the police report and charges have been framed vide order dated 11.12.2019 for the commission of an offence punishable under Sections 447, 294 and 506 part II read with Section 34 of IPC. A criminal revision was also preferred against the order dated 11.12.2019 and the same has been dismissed. The issue involved in the present case is whether the learned trial Court may proceed with the complaint case and the case instituted on the police report simultaneously or separately.
9) The Hon'ble Supreme Court in the matter of Sankaran Moitra (supra) has held in paragraphs 75 to 81 as under:
"75. In my view, even Section 210 of the Code has no application to the facts of the case on hand. Section 210 requires procedure to be followed when there is a complaint case and police investigation in respect of the same offence and reads thus:
"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 to taken by the Magistrate against any person who an accused in the complaint case, the Magistrate shall inquire 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 provision of this Code.
76. A bare reading of the above provision makes it clear that during an inquiry or trial relating to a complaint case, if it is brought to the notice of the Magistrate that an investigation by the police is in progress in respect of the same offence, he shall stay the proceedings of the complaint case and call for the record of the police officer conducting the investigation.
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77. The object of enacting Section 210 of the Code is three fold:
(i) it is intended to ensure that private complaints do not interfere with the course of justice;
(ii) it prevents harassment to the accused twice; and
(iii) it obviates anomalies which might arise from taking cognizance of the same offence more than once.
78. The Joint Committee of Parliament observed:
"It has been brought to the notice of the Committee that sometimes when 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 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.
79. It is thus clear that before Section 210 can be invoked, the following conditions must be satisfied.
(i) There must be a complaint pending for inquiry or trial;
(ii) Investigation by the police must be in progress in relation to the same offence;
(iii) A report must have been made by the police officer under Section 173; and
(iv) The magistrate must have taken cognizance of an offence against a person who is accused in the complaint case.
80. In the impugned order passed by the High Court, no such contention appears to have been raised by the appellant. On the basis of the complaint filed by the complainant and on being satisfied on the material placed on record, the learned Chief Judicial Magistrate, Alipore had proceeded with the case which cannot be said to be illegal.
81. It may also be stated here that the High Court in its order, dated June 20, 2003 considered this contention and observed that Section 210 of the Code could not arrest the proceedings initiated by the complainant, since the 'basic tenor of the two cases were different.' Relying on the decision of this Court in Harjinder Singh v. State of Punjab, (AIR 1985 SC 404), it was submitted that both the cases could not be clubbed together since the prosecution version was quite different in those cases. It may be stated that Special Leave Petition against the order of the High Court was dismissed by this Court on July 28, 2003. Even this ground, therefore, cannot take the case of the appellant anywhere."
In the matter of Dilawar Singh (supra) in para 13 & 14, the Hon'ble Supreme Court held as under:
"13. The principle has been statutorily recognised in Section 210 of the Cr.P.C. which enjoins upon the Magistrate, when it is made to -6- appear before him either during the inquiry or the trial of a complaint, that a complaint before the police is pending investigation in the same matter, he is to stop the proceeding in the complaint case and is to call for a report from the police. After the report is received from the police, he is to take up the matter together and if cognizance has been taken on the police report, he is to try the complaint case along with the G.R. Case as if both the cases are instituted upon police report. The aim of the provision is to safeguard the interest of the accused from unnecessary harassment.
14. The provisions of Section 210, Cr.P.C, are mandatory in nature. It may be true that non- compliance of the provisions of Section 210, Cr.P.C., is not ipso facto fatal to the prosecution because of the provision of Section 465 Cr. P.C., unless error, omission or irregularity has also caused the failure of justice and in determining the fact whether there is a failure of justice the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings. But even applying the very same principles it is seen that in fact the appellant was in fact prejudiced because of the non- production of the records from the police."
In the matter of Kapil Agarwal (supra), the Hon'ble Supreme Court held as under:
"14. It is the case on behalf of the appellants that as on the same allegations, the private respondent-complainant has filed an application under Section 156(3) Cr.P.C., which is pending before the learned Magistrate, the impugned FIR with the same allegations and averments would not be maintainable, and therefore, the FIR lodged with the police station Loni Border, District Ghaziabad deserves to be quashed and set aside. The aforesaid cannot be accepted for the simple reason that Code of Criminal Procedure permits such an eventuality of a complaint case and enquiry or trial by the Magistrate in a complaint case and an investigation by the police pursuant to the FIR.
15. At this stage, Section 210 Cr.P.C. is required to be referred to, which reads as under:
"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 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.-7-
16. Thus, as per Section 210 Cr.P.C., when in a case instituted otherwise than on a police report, i.e., in a complaint case, during the course of the inquiry or trial held by the Magistrate, it appears to the Magistrate 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. It also provides that if a report is made by the investigating police officer under Section 173 Cr.P.C. 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. It also further provides that 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 Cr.P.C.
17. Thus, merely because on the same set of facts with the same allegations and averments earlier the complaint is filed, there is no bar to lodge the FIR with the police station with the same allegations and averments.
18. However, at the same time, if it is found that the subsequent FIR is an abuse of process of law and/or the same has been lodged only to harass the accused, the same can be quashed in exercise of powers under Article 226 of the Constitution or in exercise of powers under Section 482 Cr.P.C. In that case, the complaint case will proceed further in accordance with the provisions of the Cr.P.C. 18.1 As observed and held by this Court in catena of decisions, inherent jurisdiction under Section 482 Cr.P.C. and/or under Article 226 of the Constitution is designed to achieve salutary purpose that criminal proceedings ought not to be permitted to degenerate into weapon of harassment. When the Court is satisfied that criminal proceedings amount to an abuse of process of law or that it amounts to bringing pressure upon accused, in exercise of inherent powers, such proceedings can be quashed.
18.2 As held by this Court in the case of Parbatbhai Aahir v. State of Gujarat (2017) 9 SCC 641, Section 482 Cr.P.C. is prefaced with an overriding provision. The statute saves the inherent power of the High Court, as a superior court, to make such orders as are necessary (i) to prevent an abuse of the process of any Court; or (ii) otherwise to secure the ends of justice. Same are the powers with the High Court, when it exercises the powers under Article 226 of the Constitution."
10) Now coming to the facts of the present case, it appears that the FIR was registered against the petitioners on 01.03.2013 whereas the complaint case was filed on 05.11.2012. In the case instituted on the police report, charges were framed on 11.12.2019 and in the complaint case, the statement of accusation was read over to the petitioners on 11.12.2019 and both proceedings are going on simultaneously.
11) Section 210 of the Cr.P.C. is reproduced herein below for ready -8- reference:-
"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 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."
12) A bare reading of the above provisions makes it clear that during the enquiry relating to the complaint case if it is brought to the notice of the Court about the investigation in respect of the same offence, the Court concerned shall stay the proceedings of the complaint case. The provisions of Section 210 of Cr.P.C. can be invoked when there is a complaint case pending enquiry or trial and the investigation by the police is in progress in relation to the same offence.
13) If a Magistrate has received a report from the police, he has to take a decision altogether and if cognizance has been taken on the case instituted on the police report, he has to try the complaint case along with the case instituted on the police report. Merely because of the same set of facts with the same allegations earlier the complaint was filed, there is no bar to register an FIR with the same allegations and facts.
14) From a perusal of the FIR, it appears that on 05.11.2012 a complaint was made to the Home Minister about the incident which had taken place on 09.06.2012 and on the same date i.e. -9- 05.11.2012, a complaint case under Section 200 of Cr.P.C. was also filed but the same has not been disclosed in the written complaint made to the Home-Minister, State of Chhattisgarh. It also appears that on the written report of the complainant, the FIR was registered on 01.03.2013 and after completion of the investigation; the charge-sheet was filed on 20.06.2013. The allegations made in the FIR and complaint case are not one and the same. The Learned Trial Court in the Complaint Case has framed charges for the commission of offences punishable under Sections 323 and 506 part II read with Section 34 of IPC whereas in a case instituted on the police report the Learned Trial Court has framed charges for offences punishable under Sections 447, 294 and 506 part II read with Section 34 of IPC. In both cases, allegations are not similar and the charges framed against the petitioners are also not similar, therefore, the ratio laid down by the Hon'ble Supreme Court in the matter of Kapil (supra) would not apply in the present case.
15) In both cases, the prosecution witnesses are the same, and the complaint case, as well as the case instituted on the police report, arises out of the same incident. Also, both cases are pending before the same Court therefore the petitioners would be at liberty to move an appropriate application before the learned trial Court for an analogous hearing of both criminal cases.
16) With the aforesaid observation(s) and direction(s), this petition is disposed of.
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(Rakesh Mohan Pandey) Judge Nimmi