Allahabad High Court
Nitin Jaiswal vs State Of U.P. And Another on 10 September, 2020
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on :7.8.2020 Delivered on: 10.09.2020 Court No.- 39 Case :- APPLICATION U/S 482 No. - 25681 of 2018 Applicant :- Nitin Jaiswal Opposite Party :- State of U.P. and Another Counsel for Applicant :- Anoop Trivedi,Abhinav Gaur,Vibhu Rai Counsel for Opposite Party :- G.A.,Sikandar B. Kochar Hon'ble Rajeev Misra,J.
1. This application under Section 482 Cr.P.C. has been filed by applicant Nitin Jaiswal (a co-accused) challenging order dated 25.01.2018 passed by Additional District Judge Ist, Court no.1, Bareilly in Complaint Case No. 1716 of 2016 (Nirmal Singh Garewal Vs. Nitin Jaiswal and others) under Sections 143, 456 and 427 I.P.C., P.S.-Kotwali Bareilly, District-Bareilly, whereby application dated 5.12.2017 (paper no. 70 Kha) filed by Complainant-Opposite Party No.2, Nirmal Singh Garewal, to the effect that he be provided Government Counsel to conduct the complaint case, as same has been transferred to Court of Sessions, was allowed and it was held that proceedings of above mentioned complaint case shall be conducted by ADGC (Criminal) and shall proceed in accordance with Chapter (XVIII) Cr.P.C, as well as order dated 26.03.2018 also passed by Additional District Judge-Ist, Court No.1 Bareilly, by which application (Paper no. 71 Kha 1) filed by accused-applicant Nitin Jaiswal and others co-accused, praying therein that since proceedings of aforesaid complaint case are irregular/illegal, hence liable to be dropped, was rejected and 25.06.2018 was fixed as the next date for framing of charges under Sections 147, 458 and 427 I.PC, against accused Nitin Jaiswal, Adesh Jaiswal, Sachin Jaiswal, Rajoo Jaiswal, Annu Jaiswal and Manish Goel.
2. I have heard Mr. Anoop Trivedi, learned Senior Counsel assisted by Mr. Vibhu Rai, learned counsel for applicant, learned A.G.A. for State and Mr. Sikandar B. Kochar learned counsel representing complainant opposite party no.2. When the matter was heard on 07.08.2020, Mr. Sikandar B. Kochar, learned counsel for opposite party no.2 submitted that he shall file fresh written argument on 12.08.2020. However, no fresh fresh written arguments have been filed by him.
3. It transpires from record that an incident occurred on 21.10.2012 at 6.00AM at 126A Civil Lines, District-Bareilly. In respect of aforesaid incident, an F.I.R. dated 21.10.2012 was lodged by Nitin Jaiswal, which came to be registered as Case Crime No. 2658 of 2012 under Sections 452, 307 I.P.C. P.S.-Kotwali Bareilly, District-Bareilly. In the aforesaid F.I.R., three persons namely Nirmal Singh Garewal, Jaspreet Singh Garewal and Tarnpreet Singh Garewal were nominated as named accused.
4. Police proceeded with investigation of above mentioned case crime number. Upon completion of statutory investigation in terms of Chapter XII Cr.P.C, Police submitted a charge-sheet dated 30.11.2012 in Case Crime No. 2658 of 2012 under Sections 452, 307 I.P.C. P.S.-Kotwali Bareilly, District-Bareilly against all named accused i.e. Nirmal Singh Garewal, Jaspreet Singh Garewal, Tarnpreet Singh Garewal. After submission of aforesaid charge-sheet cognizance was taken by concerned Magistrate and thereafter case was committed to Court of Sessions. Accordingly S.T. No. 123 of 2013 (State Vs. Nirmal Singh Garewal and others) under Sections 452, 307 IPC, P.S Kotwali Bareilly, District Bareilly came to be registered.
5. In respect of an another incident, which is alleged to have occurred on 21.10.2012 at 3.00AM. at 126 Civil Lines, District-Bareilly, opposite party no.2, Nirmal Singh Garewal filed an application under Section 156 (3) Cr.P.C., in Court of C.J.M. Bareilly, which was registered as Misc. Case No. 986 of 2012. Same was allowed by concerned Magistrate.
6. As a consequence of above, an FIR dated 25.11.2012 came to be registered as Case Crime No. 2675 of 2012 under Sections 307, 452, 427, 504, 506, 308, 436 and 392 IPC, PS-Kotwali Bareilly, District-Bareilly. wherein Opposite Party no.2 Nirmal Singh Garewal was shown as first informant, while present applicant along with 5 others namely Sachin Jaiswal, Adesh Jaiswal, Manish Goel, Annu Jaiswal and Raja Jaiswal were nominated as named accused.
7. On registration of above F.I.R., Police undertook statutory investigation of same in terms of Chapter XII Cr.P.C. Upon completion of same, Investigating Officer submitted a final report bearing No. 163 of 2012 dated 19.12.2012 (First Final Report) stating therein that a totally false report has been lodged by first informant Nirmal Singh Garewal, as upon investigation same has been found to be false. Accordingly, Investigating Officer recommended that proceedings under Section 182 Cr.P.C. be initiated against complainant/opposite party no.2 Nirmal Singh Garewal and his two sons namely:- Jaspreet Singh Garewal and Tarnpreet Singh Garewal.
8. Chief Judicial Magistrate, Bareilly thereafter examined the matter, but rejected aforesaid final report and directed further investigation vide order dated 25.05.2013.
9. In compliance of this order dated 25.05.2013, Police further investigated the matter but again submitted a final report bearing No. 16/13 of 2013 dated 16.08.2013 (Second Final Report).
10. Subsequent to second final report dated 16.08.2013, opposite party no.2 Nirmal Singh Garewal filed a protest petition. However, C.J.M., Bareilly on examination of record passed an order dated 06.04.2015 directing further investigation.
11. In compliance of aforesaid order dated 06.04.2015, Police further investigated the matter but again submitted final report bearing No.254 of 2015 dated 30.07.2015 (Third Final Report).
12. Against third final report dated 30.07.2015, complainant/opposite party no.2, Nirmal Singh Garewal submitted protest petition dated 20.08.2015.
13. It transpires from record that while protest petition dated 20.08.2015 was pending against third final report, concerned Magistrate passed an order dated 08.02.2016 by which final report dated 30.07.2015 (second trial report) was rejected and protest petition filed by complainant/opposite party no.2 against second final report was directed to be treated as a complaint. For ready reference operative portion of order dated 08.02.2016 is reporduced herein-below:
" vkns'k eq0v0la0&2675@12] /kkjk&307] 452] 436] 392] 380] 504 o 506 Hkk0 na0 la0 Fkkuk dksrokyh] ftyk cjsyh ds izdj.k esa foospd )kjk vafre fjikVZ la[;k&16@13 fnukafdr% 16-08-13 fujLr dh tkrh gS ,oa vkikfRr ;kfpdk dks ifjokn ds :i esa ntZ fd;k tk;sA i=koyh okLrs C;ku oknh varxZr ?kkjk&200 na0iz0la0 fnukad 17-01-2016 dks is'k gksA "
Order In the matter of Case Crime No. 2675/12, for offence u/s 307, 452, 436, 392, 380, 504 and 506 IPC, PS- Kotwali, District Bareilly, the final report no. 16/13 dated 16.8.2013 by the investigating officer is rejected and the objection be lodged as complaint. The file be put up for recording the statement of the complainant under section 200 Cr.P.C. on 17.1.2016"
(English Translation by Court) Consequently, Complaint Case No. 1716 of 2016 (Nirmal Singh Garewal Vs. Nitin Jaiswal) came to be registered in the Court of C.J.M., Bareilly.
14. Additional Chief Judicial Magistrate, Bareilly consequently proceeded with above mentioned complaint case. He recorded statements of complainant and his witnesses in terms of Sections 200 and 202 Cr.P.C. On the basis of aforesaid enquiry, A.C.J.M. Bareilly examined the allegations made in complaint and being prima facie satisfied, summoned applicant Nitin Jaiswal and others under Sections 143, 456 and 427 I.P.C. in above-mentioned complaint case vide summoning order dated 05.09.2016.
15. Feeling aggrieved by summoning order dated 05.09.2016, accused Maneesh Goel and others preferred Criminal Misc. Application under Section 482 Cr.P.C. No. 37916 of 2016 (Maneesh Goel and 5 others Vs. State of U.P. and another). This Court, however, refused to quash the summoning order. For ready reference order dated 8.3.2007 is quoted herein under:
"On the case being taken up, no-one has appeared on behalf of the applicants. Sri Sikandar B.Kochar, learned counsel for the opposite party no.2 and the learned AGA representing the State have been heard.
By means of the present application under Section 482 Cr.P.C. the applicants have invoked inherent jurisdiction of this Court with a prayer to quash the order dated 8.2.2016 whereby the applicants have been summoned to face the trial in Complaint Case No.1716 of 2016 under Sections 143,456 and 427 IPC pending in the court of Additional Chief Judicial Magistrate Court No.2 Bareilly.
From the perusal of the order sheet, it transpires that this case was placed as unlisted on 21.2.2017 and on the request of learned counsel for the applicants, this case was adjourned fixing 27.2.2017.
On 27.2.2017, this case was taken up and on the request of learned counsel for the applicants, this case was posted for 28.2.2017.
On 28.2.2017, this case was taken up and on the request of learned counsel for the applicants, this case was posted for 6th March 2017.
On 6th March 2017, this case was taken up and on the request of learned counsel for the applicants, this case was posted for 7th March 2017. Again on 7.3.2017, this was posted for 8th March 2017.
On 8th March 2017, this case was taken up, no-one has appeared on behalf of the applicants to address the Court. Learned counsel for the opposite party no.2 and learned AGA insisted that this case may not be swung sine die on the successive adjournments sought by the counsel for the applicants,thus this Court is proceeding to decide finally the present case after hearing the learned counsel for the opposite party no.2 and the learned AGA.
From the material on record it emerges that initially an application under section 156 (3) Cr. P.C. was moved by the opposite party no.2 against the applicants before the learned Magistrate Bareilly with the allegations that the applicants on 21.10.2012 associated with 70 to 80 persons came in 10 to 12 vehicles along with JCB to take possession of the entire house. The complainant and his son fired from their respective rifle in self defence. The accused persons fled from the place of occurrence leaving two ladders and three vehicles on front and back of the house. When the complainant after fleeing away of the accused persons came, he found that backside wall had fallen and they were taking away the house hold articles. The concerned police station was informed immediately by the complainant but no action was taken. The accused persons had entered into the house of the complainant and destroyed house hold articles and robbed valuable articles. The applicants also made indiscriminate firings extending threats to their life and the learned Magistrate directed the concerned police station to register the case against the applicants which was registered as Case Crime No. 2675 of 2012 under sections 307/436/392/380/504 and 506 IPC on 25.11.2012. After registration of the first information report, the investigating officer swung into action and submitted the final report. The learned Magistrate rejected the final report on 25.5.2013 and directed for further investigation. The investigating officer submitted the final report again on 16.8.2013 . The opposite party no.2 filed protest petition. The learned Magistrate again directed for further investigation on 6.4.2015. The investigating officer again submitted the final report on 30.7.2015. The opposite party no.2 again filed the protest petition on which the learned Magistrate rejected the final report and treated the protest petition as complaint case on 8.2.2016. The learned Magistrate summoned the applicants to face the trial in Complaint Case No.1716 of 2016 under Sections 143,456 and 427 IPC on the basis of statement of the complainant and the witnesses namely Amanveer Kaur ,Talbinder Kaur and Jaspreet Singh Grewal recorded under sections 200 and 202 Cr.P.C. The applicants have challenged the order dated 5.9.2016 before this Court. Two of the accused persons namely applicant no.1 and the applicant no.6 has filed a discharge application under section 245 (2) Cr.P.C which is still pending before the court below. A copy whereof has been brought on record by the learned counsel for the opposite party no.2. It is submitted by the learned counsel for the opposite party no.2 that in respect of the incident of the same date.The applicant no.2 had also lodged the first information report against the opposite party no.2 and other persons under sections 452/307 IPC in which charge sheet has been submitted and they are facing the trial in Sessions Trial No. 123 of 2013 and the proceeding is at the fag end.
It is contended by the learned counsel for the opposite party no.2 that the contents of the complaint cannot be nipped in the bud. The learned Magistrate has found sufficient materials showing the complicity of the applicants on the basis of which they have been summoned to face the trial. The order passed by the learned Magistrate does not suffer from any legal or procedural infirmity or perversity. The applicants will have ample opportunity to rake up their defence at the appropriate stage. The applicants have adopted circuitous device by lodging another first information report against the opposite party no.2 and his sons and they are misusing their position being Advocate by profession and extending threats to life and property to the applicant and his brothers in which the police has submitted charge sheet . A case under section 2/3 of the U.P.Gangsters and Anti-social Activities has also been registered by the police against the opposite party no.2, on the basis of the case in which trial is proceeding under section 307/452 IPC besides referring two other cases of the year 1989 and 2008.
From the perusal of the materials on record and looking into the facts and after considering the arguments of the learned counsel for the opposite party no.2 and learned AGA for the State, it cannot be said that no offence has been made out against the applicants. Cognizance taken by the trial court by applying his judicial mind, whereby the applicants have been summoned to face the trial suffers from no illegality once the summoning order has been passed by the learned Magistrate, it is of no consequence that thrice the investigating officer has submitted final report and that learned Magistrate erred in treating the protest petition as complaint case. If the learned Magistrate was not satisfied with the manner in which the investigation was done it can direct for further investigation under section 173 (8) Cr.P.C. and as such the prayer for quashing the proceedings is refused. At the stage of issuing process the court below is not expected to examine and assess in detail the material placed on record. Only this has to be seen whether prima facie cognizable offence is made out or not. The Apex Court has also laid down the guidelines in the case State of Haryana Vs. Bhajanlal, 1999 SCC(Crl) 426, and State of Bihar Vs. P. P. Sharma, 1992 SCC(Crl) 192.where the criminal proceedings could be interfered and quashed in exercise of its power envisaged under section 482 Cr.P.C.
Having considered rival submissions advanced by the learned counsel for the parties, this Court does not find any justifiable ground for quashing the proceedings pursuant to the summoning order in exercise of its inherent powers conferred under section 482 Cr.P.C. The bailable warrant has already been issued against the applicants which is evident from Annexure-6 to the supplementary affidavit whereby the learned Magistrate while rejecting the application of the applicant for committal of the complainant case to the court of Sessions whereby Sessions Trial No.123 of 2013 is going on has issued non-bailable warrant against the applicants vide order dated 19.11.2016. This fact has deliberately been concealed while filing the instant application under section 482 Cr.P.C.as well as while filing two supplementary affidavits for filing certain documents in defence which cannot be considered at this stage. The application is bereft of merits and is accordingly dismissed.
However, considering the facts and the circumstances of the case , it is directed that in case applicants appear before the court concerned in the aforesaid case within 45 days and apply for bail, the same shall be heard and disposed of in accordance with law."
16. Above quoted order dated 08.03.2017 passed by this Court was challenged by accused of complaint case referred to above before Apex Court by means of Special Leave to Appeal (Crl.) No. 359 of 2018 ( Maneesh Goel and Ors. Vs. The State of Uttar Pradesh and another), which was also dismissed, vide order dated 08.01.2018. The same is extracted herein below:
" Delay condoned.
Heard learned counsel for the petitioners.
We do not find any ground to interfere.
The special leave petition is dismissed.
Pending applications, if any, stands disposed of."
17. After dismissal of above mentioned special leave petition, accused persons including present applicant appeared before Court below and were enlarged on bail.
18. At this juncture, complainant Nirmal Singh Garewal moved an application dated 18.10.2016 under Section 323 Cr.P.C. in Complaint Case No. 1716 of 2016 (Nirmal Singh Garewal Vs. Nitin Jaiswal) for transfer of aforesaid complaint case to Court of Sessions as according to complainant, above mentioned complaint case is cross version of S. T. No. 123 of 2013 (State Vs. Nirmal Singh Garewal and others) under Sections 307, 452 I.P.C., P.S. Kotwali Bareilly, District Bareilly, pending in the Court of Ist Additional District Judge, Court No.1, Bareilly and therefore, both be tried together.
19. Above application dated 18.10.2016 came to be rejected by Additional Chief Judicial Magistrate, Court no.2, Bareilly, vide order dated 19.11.2016. This order dated 19.11.2016 has been allowed to become final for want of further challenge.
20. After rejection of application dated 18.10.2016 under Section 323 Cr.P.C. filed by complainant Nirmal Singh Garewal in above noted complaint case, Jaspreet Singh, Garewal co-accused in Sessions Trial No. 123 of 2013 (State Vs. Nirmal Singh Garewal and others) under Sections 307, 452 I.P.C., P.S. Kotwali Bareilly, District Bareilly filed an application under Section 309 (1) Cr.P.C. (Paper No. 309 Kha) in above mentioned Sessions Trial praying therein that hearing of said Sessions Trial be stayed. This application was filed primarily on the ground that Complaint Case No. 1716 of 2016 (Nirmal Singh Garewal Vs. Nitin Jaiswal) is the cross version of S.T. No. 123 of 2013 (State Vs. Nirmal Singh Garewal and Others). Same should be heard together, and till such time, proceedings of S.T. No. 123 of 2013 (State Vs. Nirmal Singh Garewal and others) be stayed.
21. Aforesaid application under section 309 Cr.P.C. was opposed by ADGC (Criminal), who filed his objections (Paper No. 323 Kha) to the same.
22. Upon consideration of submissions made and evaluation of material on record, Additional Sessions Judge, Court No. 1, Bareilly rejected the application under Section 309 Cr.P.C. (Paper No. 323 Kha) filed by co-accused Jaspreet Singh Garewal, vide order dated 02.12.2016.
23. Assailing order dated 02.12.2016 passed in S.T. No. 123 of 2013 (State Vs. Nirmal Singh Garewal and others), co-accused Jaspreet Singh Garewal, approached this Court by means of an application under Section 482 Cr.P.C. i.e. Criminal Misc. Application No. 38644 of 2016 (Jaspreet Singh Garewal Vs. State of U.P. and another).
24. Above noted Criminal Misc. Application came up for admission on 15.12.2016 and same was disposed of finally by this Court on the same day without issuing notice to opposite party no.2 as he was unrepresented vide order dated 15.12.2016. Same reads as under:-
"Supplementary affidavit filed today, the same is taken on record.
Heard learned counsel for the applicant and learned A.G.A.
The present application has been filed with a prayer to quash the order dated 2.12.2016 passed by the Additional Sessions Judge, Court No. 1 Bareilly in Sessions Trial No. 123 of 2013 (State Vs. Nirmal Singh Garewal and others) arising out of Case Crime No. 2568 of 2012, under sections 452, 307 IPC, Police Station Kotwali Bareilly, District Bareilly whereby the application of the applicant filed under section 309 Cr.P.C. has been rejected.
Learned counsel for the applicant contended that civil dispute with regard to the property is pending between applicant and O.P. No. 2 and the O.P. No. 2 is trying to illegally took the possession of the property in question, on account of which the incident took place. Admittedly, cross version were lodged by both the sides.
It is contended that initially O.P. No. 2 initiated the proceeding of the incident which took place on 21.10.2012 against the applicant, his father and his brother under sections 452, 307 IPC in Case Crime No. 2568 of 2012. It is contended that on the same day applicant went for lodging the first information report but same was not lodged by the police, then application was moved under section 156(3) Cr.P.C. on 22.10.2012 which was allowed, pursuant to which a FIR was lodged by the police against O.P. No. 2 and five others under sections 307, 452, 427, 504, 506, 380, 436, 392 IPC in Case Crime No. 2675 of 2012. It is further contended that Investigating Officer of Case Crime No. 2675 of 2012 of Sessions Trial No. 123 of 2013 filed report on 19.12.2012 wherein it was mentioned that it was a cross version. It is next contended that applicant's father filed a protest petition, which was treated as a complaint case and after the statement recorded under sections 200 and 202 Cr.P.C. opposite party No. 2 and others were summoned by the Magistrate vide order dated 5.9.2016 under sections 143, 456 and 427 IPC in Complaint Case No. 1716 of 2016. It is contended that in spite of having knowledge of the same, the opposite party No. 2 and 5 others did not appear before the court concerned till date with the sole intention that the case against the applicant may proceed and the cross version of complaint case No. 1716 of 2016 may remain pending. It is contended that the Sessions Trial No. 123 of 2013 is proceeded on day to day basis because of the direction given by this Court vide order dated 24.10.2016 passed in Crl. Misc. Application U/s 482 Cr.P.C. No. 27370 of 2016 to be concluded the the trial if possible within two months on day to day basis."
Learned counsel for the applicant further contended that opposite party No. 2 did not bring this fact to the notice of the Court that opposite party No. 2 and others have already been summoned in Complaint Case No. 1716 of 2016. It is further contended that application under section 323 Cr.P.C. was filed before the Additional C.J.M., Court No. 2, Bareilly for committing the case to the court of sessions where Sessions Trial No. 123 of 2013 is proceedings and both the admitted cross case be heard and decided in view of the law laid down by this Court as well as by the Apex Court. Learned Magistrate vide order dated 19.11.2016 rejected the aforesaid application on account of the fact that accused persons had not appeared, therefore, no order could be passed. Copy of the aforesaid order has been filed as Annexure-10 to the accompanying affidavit. It is contended that as there is no dispute with regard to the fact that Sessions Trial No. 123 of 2013 and Complaint Case No. 1716 of 2016 are cross cases, therefore, an application was moved under section 309(2)(a) Cr.P.C. for adjournment of the proceedings till the complaint case is committed to the Court of sessions which application has been rejected by the order impugned. Learned counsel has cited the judgement of Sudhir Vs. State of M.P. 2001 SCC (Crl.) 387 and relied upon the paragraphs No. 8,9,10 and 11 of the aforesaid judgment indicating that the Apex Court has held that if there are cross cases, the same shall be disposed of by the same Court by pronouncing judgements on the same day. Paragraphs No. 8,9,10 and 11 are quoted below:
8. It is a salutary practice, when two criminal cases relate to the same incident, they are tried and disposed of by the same court by pronouncing judgments on the same day. Such two different versions of the same incident resulting in two criminal cases are compendiously called : case and counter-case" by some High Courts and 'cross-cases" by some other High Courts. Way back in the nineteen hunded and twenties a Division Bench of the Madras High Court (Waller and Cronish, JJ.) made a suggestion (Goriparthi Krishtamma, IN re that 'a case and counter-case arising out of the same affairs should always, if practicable, be tried by the same Court; and each party would represent themselves as having been the innocent victims of the aggressions of the others:
9. Close to its heels Jackson, J., made an exhortation to the then legislature to provide a mechanism as a statutory provision for trial or both cases by the same court (Vide Krishna Pannadi Vs. Emperor). The learned Judge said thus:
"There is o clear law as regards the procedure in counter-cases, a defect which the legislature ought to remedy. It is a generally recognized rule that such cases should be tried in quick succession by the same Judge, who should not pronounce judgement till the hearing of both cases is finished."
10. We are unable to understand why the legislature is still parrying to incorporate such a salubrious practice as a statutory requirement in the Code. The practical reasons for adopting a procedure that such cross-cases shall be tried by the same court, can be summarised thus:
11. In fact, many High Courts have reiterated the need to follow the said practice as a necessary legal requirement for preventing conflicting decisions regarding one incident. This Court has given its approval to the said practice in Nathi LalV. State of U.P. The procedure to be followed in such a situation has been succinctly delineated in the said decision and it can be extracted here: (SCC pp. 145-46, para 2) "2. We think that the fair procedure to adopt in a matter like the present where there are cross-cases, is to direct that the same learned Judge must try both the cross-cases one after the other. After the recording of evidence in one case is completed, he must hear the arguments but he must reserve the judgment. Thereafter he must proceed to hear the cross-case and after recording all the evidence he must hear the arguments but reserve the judgment in that case. The same learned Judge must thereafter dispose of the matters by two separate judgments. In deciding each of the cases, he can rely only on the evidence recorded in that particular case. The evidence recorded in the cross-case can not be looked into. Nor can the judge be influenced by whatever is argued in the cross-case. Each case must be decided on the basis of the evidence which has been placed on record in that particular case without being influenced in any manner by the evidnece or arguments urged in the cross case. But both the judgments must be pronounced by the same learned Judge one after the other."
It is contended by learned A.G.A. that it is not disputed that that both the cases being Complaint Case No. 1716 of 2016 and Sessions Trial No. 123 of 2013 are cross cases.
In view of the above, this matter requires re-consideration. Accordingly the order dated 2.12.2016 passed by Additional Sessions Judge,Court No. 1 Bareilly in Sessions Trial No. 123 of 2013 is set aside and matter is remitted back to the court concerned for reconsideration afresh, in accordance with law as well as the observations made above within a period of three week from the date a certified copy of this order is produced before him. Learned counsel for the applicant undertakes to file the certified copy of this order before the court concerned within two weeks from today.
Accordingly, this application is disposed of. It is clarified that the proceeding of sessions trial No. 123 of 2013 may go on but final orders may not be passed."
25. There is nothing on record to show as to what happened to the application under section 309 Cr.P.C. filed by one of the accused namely Jaspreet Singh Garewal in S.T. No. 123 of 2013 (State Vs. Nirmal Singh Garewal and others) after order dated 15.12.2016 was passed by this Court.
26. Feeling aggrieved by order dated 15.12.2016, passed by this Court, Nitin Jaiswal who was arrayed as Opposite Party no.2 in Criminal Misc. Application No. 38644 of 2016 (Jaspreet Singh Garewal Vs. State of U.P. and another) filed Criminal Misc. Recall Application No. 4345 of 2017 dated 04.01.2017 seeking recall of order dated 15.12.2016.
27. In order to hamper proceedings of Sessions Trial, one of the accused in Sessions Trial namely Jaspreet Singh Garewal filed Transfer Application Criminal No. 179 of 2016 (Jaspreet Singh Garewal Vs. State of U.P. and another) before this Court seeking transfer of Sessions Trial No. 123 of 2013 (State Vs. Nirmal Singh Garewal and Others) to the Court of Special Judge (Gangster Act/Additional District & Sessions Judge) Court No.5, Bareilly. This transfer application was filed on the ground that since accused-Jaspreet Singh Garewal and others are facing trial in the Court of Additional District and Sessions Judge, 5th,, Bareilly therefore, above mentioned Sessions Trail be also transferred to aforesaid court. However, this Court vide detailed order dated 08.07.2016 rejected the transfer application detailed above.
28. At this juncture, complainant opposite party no.2, Nirmal Singh Garewal, preferred Criminal Misc. Transfer Application No. 113 of 2017 (Nirmal Singh Garewal Vs. Nitin Jaiswal and 6 others) under Section 408 Cr.P.C. before Sessions Judge Bareilly seeking transfer of Complaint Case No. 1716 of 2016 (Nirmal Singh Garewal Vs. Nitin Jaiswal and others) under Sections 143, 456 and 427 I.P.C., P.S.-Kotwali, District-Bareilly, pending in the Court of Additional Chief Judicial Magistrate, Court no2, Bareilly to the Court of 1st Additional Sessions Judge, Bareilly, where S.T. No. 123 of 2013 (State Vs. Nirmal Singh Garewal and others) was pending. It is worth noticing that S.T. No. No. 123 of 2013 (State Vs. Nirmal Singh Garewal and Others) was at an advance stage as defence evidence had already been completed and the matter was now ripe for arguments.
29. Perusal of transfer application goes to show that the same was filed primarily on the ground that complaint case is the cross-version of Session Trial and secondly, the High Court vide order dated 15.12.2016 passed in Criminal Misc. Application No. 38644 of 2016 (Jaspreet Singh Garewal Vs. State of U.P.) has already held that the two cases i.e. Complaint Case and Sessions Trial referred to above are cross-cases. Consequently, both be tried together.
30. Aforesaid transfer application was allowed by Sessions Judge, Bareilly. vide order dated 13.7.2017 directing Additional Chief Judicial Magistrate, Court No.2, Bareily to immediately send record of Complaint Case No. 1716 of 2016 (Nirmal Singh Garewal Vs. Nitin Jaiswal and others) under Sections 143, 456, 427 I.P.C. P.S. Kotwali Bareilly District-Bareilly to the Court of Ist Additional Sessions Judge, Bareilly, where S.T. No. 123 of 2013 (State Vs. Nirmal Singh Garewal and others) under Sections 307, 452 I.P.C., P.S. Kotwali Bareilly, District Bareilly was pending.
31. Order dated 13.07.2017 was passed primarily on the basis of order dated 15.12.2016 passed by this Court in Criminal Misc. Application No. 38644 of 2016 (Jaspreet Singh Garewal Vs. State of U.P. and another), wherein this Court on the concession accorded by learned A.G.A. concluded that both the cases i.e. Complaint Case No. 1716 of 2016 (Nirmal Singh Garewal Vs. Nitin Jaiswal and others) under Sections 143, 456, 427 I.P.C., P.S. Kotwali Bareilly, District Bareilly and S.T. No. 123 of 2013 (State Vs. Nirmal Singh Garewal and others), under Sections 307, 452 I.P.C., P.S. Kotwali Bareilly, District Bareilly are cross cases.
32. Aggrieved by order dated 13.07.2017 passed by Sessions Judge, Bareilly, applicant/co-accused Nitin Jaiswal filed Criminal, Misc. Application U/S 482 Cr.P.C. No. 22262 of 2017 (Nitin Jaiswal Vs. State of U.P. and another). However, aforesaid application came to be dismissed vide order dated 29.08.2017. For ready reference order dated 29.8.2017 is reproduced herein below:
"Heard Sri Anoop Trivedi, learned counsel for the applicant, Sri Sikander B. Kocher as well as the learned A.G.A. for the State and perused the record.
By means of the instant 482 petition the applicant has invoked the power of this court under Section 482 Cr.P.C. to quash the order dated 13.7.2017 passed by the learned Sessions Judge, Bareilly in Criminal Misc. Transfer Application No. 113 of 2017 (Nirmal Singh Garewal Vs. Nitin Jaiswal and others).
The transfer application moved by the respondent no. 2 along with an affidavit with a prayer to transfer the Case No. 1716 of 2016, under Sections 456, 427 and 143 I.P.C., police station Kotwali, district Bareilly from the court of Additional Chief Judicial Magistrate, Bareilly to the court of First Additional Sessions Judge, Bareilly where S.T. No. 123 of 2013 (State vs. Nirmal Singh and others), under Sections 307 and 452 I.P.C. is pending.
It is submitted by the learned counsel for the applicant that a first information report was lodged by the applicant against the respondent no. 2 Nirmal Singh Garewal and two others, namely, Jasprit Singh Garewal and Taranpreet Singh Garewal under Sections 452, 307 I.P.C on 21.10.2012 at 6.55 A.M. with respect to the incident dated 21.10.2012 at 6 A.M. In respect of the aforesaid offence the accused/respondents are facing trial in pursuance of the aforesaid first information report lodged by Nitin Jaiswal in S.T. No. 123 of 2013. This court by order dated 21.1.2013 directed the trial court to conclude the trial expeditiously on day to day basis preferably within a period of six months. On account of dilatory tactics played by the opposite party no.2 and his sons the trial has yet not been decided besides four years have elapsed despite this court has passed specific orders in several other 482 petitions filed on behalf of the applicants or by the opposite party no. 2. At a very belated stage, the opposite party no.2 moved an application under Section 309 (1) (a) Cr.P.C. on 29.11.2016 contending therein that a cross case is pending before the court of Additional Chief Judicial Magistrate, Court No. 2, Bareilly and hence an appropriate order be passed. The said application was rejected by the learned Additional Sessions Judge, Court No. 1, Bareilly vide order dated 2.12.2016. Jasprit Singh Garewal filed a 482 petition before this Court, which was numbered as 482 Petition No. 38644 of 2016, which was finally disposed of by another Bench of this Court on 15.12.2016. Pursuant to the order dated 15.12.2016 an application was moved by the opposite party no. 2 to pass appropriate order in the light of the observation made in the said order. The transfer application, which was moved by the opposite party no. 2 was only to delay the trial proceeding before the court of Sessions by the opposite party no. 2 and other when there was a specific order of this court for early disposal of the case within a stipulated period but without considering any aspect of the matter the learned Sessions Judge has proceeded to pass the order impugned by which the Additional Chief Judicial Magistrate, Court No. 2, Bareilly has been directed to transmit/transfer the file of Case No. 1716 of 2016 (Nirmal Singh Vs. Nitin Jaiswal) under Sections 456, 427 and 143 I.P.C. forthwith to the court of Additional Sessions Judge, Bareilly. The order passed by the learned Sessions Judge is absolutely without jurisdiction as the learned Sessions Judge is not empowered to transfer the trial, which is cognizable by the court of Magistrate as it is against the provisions of Section 408 Cr.P.C. Section 408 Cr.P.C. do not authorize the District Judge to assign the trial of a case triable exclusively by a court of Magistrate to court of Sessions. The application for transferring the case pending before the Chief Judicial Magistrate to the court of Sessions with regard to an application under Section 309 (1) (a) Cr.P.C. is pending in the court of Chief Judicial Magistrate, Court No. 2 Bareilly hence the application moved under Section 408 Cr.P.C. by the opposite party no. 2 before the District Judge, Bareilly is not maintainable on the ground that an application filed by the opposite party no. 2 under Section 323 Cr.P.C. in case No. 1716 of 2016 in the court of Additional Chief Judicial Magistrate, Court No. 2, Bareilly was rejected by the court concerned by an order dated 19.11.2016. The said order has attained finality and thus the order under challenge passed by the District Judge exercising power under Section 408 Cr.P.C. for transferring the trial of Case No. 1716 of 2016 from the court of Additional Chief Judicial Magistrate, Court No. 2, Bareilly to the court of District & Sessions Judge, Barielly is per se without jurisdiction, arbitrary unreasonable and illegal, which is in gross contravention of the provision of Section 209 Cr.P.C. It is further contended that the sessions court gets jurisdiction to deal with the matter only after the case is instituted upon by police or otherwise is committed by the court of Magistrate. When the power conferred under Section 209 or under Section 323 is exercised only then the provisions of Chapter XVIII would be applicable to such cases. The order passed by the court below is also in contravention of the various orders passed by this court to conclude the trial on day to day basis within two months, which was passed in Criminal Misc. Application No. 20143 of 2015, thus the opposite party no. 2 is somehow trying to elongate the proceeding in which the opposite party no. 2 along with two others are the accused persons and the trial is at the fag end thus by moving the transfer application the opposite party no. 2 has somehow obtained favourable order by the impugned order whereby it has been directed to transfer the case which is pending before the concerned Magistrate to the court of Additional Sessions Judge, Bareilly, which is unsustainable in the eye of law, hence liable to be rejected by this Court.
Learned counsel appearing on behalf of the opposite party no.2 has submitted that in respect of the incident which had taken place on 21.10.2012 the first information report was lodged against the opposite party no. 2 Nirmal Singh Garewal and his two brothers under Sections 452 and 307 I.P.C. as case Crime No. 2568 of 2012 on the same day the opposite party no. 2 also went for lodging the first information report but the same was not lodged by the police, then an application was moved under Section 156 (3) Cr.P.C. on 22.10.2012 pursuant to which a first information report was lodged by the police against the applicant and five others under Sections 307, 452, 427, 504, 506, 380, 436 and 392 I.P.C. as case Crime No. 2675 of 2012. The matter was investigated by the Investigating Officer and a final report was filed on 19.12.2012 and after further investigation the police again submitted the second final report on 16.8.2013. The matter was again sent further investigation and the police reiterated the final report and then the opposite party no.2 filed a protest petition before the court below and the court below proceeded to pass the order on 8.2.2016 rejecting the final report and treated the protest petition as complaint Case No. 1716 of 2016. After the statements of the complainant and witnesses were recorded under Sections 200 and 202 Cr.P.C. the applicant and others were summoned by the learned Magistrate by order dated 5.9.2016 under Sections 143, 456, 427 I.P.C. in complaint Case No. 1716 of 2016. The applicant did not appear before the court despite having full knowledge of summoning order with the sole intention that the case against the opposite party no. 2 may proceed and the cross version of complaint Case No. 1716 of 2016 may remain kept pending. Pursuant to the order of this court it was directed to proceed with the case on day to day basis and trial be concluded if possible within two months. Since the applicant and others had already been summoned in complaint case the application under Section 323 Cr.P.C. was filed before the Additional Chief Judicial Magistrate for committing the case to the court of sessions where S.T. No. 123 of 2013 is proceeding so that both the cases be heard and decided in accordance with law. It is settled law as held by the Hon'ble Apex Court in number of cases that counter or cross cases should be decided by the same court hence the learned Sessions Judge after considering that the date of incident in both the cases is the same, which took place between both the parties on the same date passed the order impugned that both the cases have to be tried by the same court. The learned District Judge has committed no error in allowing the application moved by the opposite party no. 2 exercising power under Section 408 (2) Cr.P.C. directing the Additional Chief Judicial Magistrate, Court No. 2, Bareilly to transmit the record of Case No. 1716 of 2016 (Nirmal Singh Garewal Vs. Nitin Jaiswal) under Sections 456, 427 and 143 I.P.C to the court of Ist Additional District & Sessions Judge, Bareilly. By challenging the order passed by the learned District Judge the applicant himself is trying to elongate the proceeding when the order passed by the learned Sessions Judge was well within its jurisdiction. The cases cited by the learned counsel for the applicant is not applicable in the present facts and circumstances of the case. There is no infirmity in the order passed by the court below, hence the petition may be dismissed with special costs as fraud and perjury has been committed by the applicant while filing the instant application for which an application has already been moved under Section 340 and 195 Cr.P.C. for initiating proceedings to take cognizance for the fraud played by the applicant upon the court of law which should not be ignored.
I have considered the submissions of the learned counsel for the parties. From the perusal of the record it is not disputed that both the sides have lodged cases against each other in respect of the incident of the same date. The first information report, which was lodged by the applicant the trial has been proceeded against the opposite party no. 2 and other persons. The first information report in respect of the incident of the same date could not be lodged on behalf of the opposite party no. 2 against the applicant and others and on account of repeated submissions of final report the protest petition was filed by the opposite party no. 2 and on the basis of the statement of the complainant and witnesses under Sections 200 and 202 Cr.P.C the learned Magistrate treating the protest petition as a complaint proceeded to pass order summoning the applicant and other persons to face trial. It is an admitted fact that there is cross case which should be heard and decided by the same court. In view of the law laid down by the Hon'ble Apex Court in Nathi Lal and others reported in 1990 SCC Criminal 638 that the counter cases should be tried in quick succession by the same judge by the same court who should not pronounce the judgment till the hearing of both the cases is finished. After recording of evidence in one case is completed the trial judge must hear the argument and reserve the judgment and thereafter he must proceed to hear the cross case and after recording of the evidence he must hear the argument and reserve the judgment and thereafter dispose of the matter by two separate judgments. In other words case must be decided on the basis of the evidence, which has been placed on record in that particular case without being influenced in any manner by the evidence or arguments urged in the cross case. In Sudhir and others Vs. State of M.P. reported in A.I.R. 2001 SC 826 while relying upon the aforesaid decision in (Natthi Lal) supra the Hon'ble Apex Court has exhaustively dealt with the case and counter case relating to the same incident and even one of those cases involves offence not exclusively triable by Sessions Court, could be tried in the manner indicated in Natthi Lal's case. The practical reason in adopting the procedure that such cross cases shall be tried by the same court has been summarized thus;
(I) It staves off the danger of an accused being convicted before his whole case is before the court;
(ii It deters conflicting judgments being delivered upon similar facts; and
(iii) In reality the case and the counter case are to all intents and purposes different or conflicting versions of one incident.
The Hon'ble Apex Court has further observed that from the aforesaid decisions it is crystal clear that in a situation where one of the two cases relating to the same incident is charge sheeted, involves offence or offences exclusively triable by a court of Sessions, but none of the offences involved in other case is exclusively triable by the court of Sessions, the Magistrate before whom the former case reaches has no escape from committing the case to the Sessions Court as provided in Section 209 of the Code. Once the said case is committed to the court of Sessions court, thereafter it is governed by the provisions subsumed in Chapter XVIII of the Code. Though the cross case cannot be committed in accordance with Section 209 of the Code, the Magistrate has nevertheless power to commit the case to the Court of Sessions, albeit none of the offences involved therein is exclusively triable by the Sessions Court. Section 323 is incorporated in the Code to meet similar cases also. The Sessions Judge has to exercise discretion regarding the cases, which he has to continue for trial in his court and the case, which has to be summoned from the court of Chief Judicial Magistrate.
When earlier 482 petition was filed by the respondents there was clear observations that there are two cross cases for which the direction was given for re-consideration of the matter. The present impugned order has been passed, which has been challenged by means of the instant petition under Section 482 Cr.P.C. The learned Sessions judge is fully empowered to withdraw any case at any time before the trial of the case from one court to another court in his session division. The trial in both the cases must be decided by the same judge one after the other. This court does not find any illegality or perversity in the impugned order which was passed against the applicant and six others but the applicant alone has challenged the order on flimsy ground installing the entire proceeding which is pending against the applicant and others as complaint case.
In view of the above prolix and verbose discussion, the petition lacks any merit and is accordingly dismissed.
The learned court below is directed to proceed with the police case and the cross case instituted by the complainant by way of complaint and decide the trial in both the matter in the light of the direction given herein above. It is further directed that the learned court blow will accord priority to the cross case and dispose of both the cases expeditiously. "
33. Against order dated 29.08.2017 passed by this Court, applicant-Nitin Jaiswal filed Special Leave to Appeal (Crl.) No. 8152 of 2017 (Nitin Jaiswal Vs. The State of U.P. and another ) before Apex Court, which was dismissed, vide order 06.11.2017. For ready reference order dated 6.11.2017 is quoted herein under:
"In the peculiar facts of this case, we are not inclined to entertain the present petition as the order of consolidation of two cases is substantially correct. However, we leave the question open as to whether the Additional Sessions Judge had the power to order consolidation of the cases under Section 408 of the Cr.P.C., even when we find that the Additional Sessions Judge did not have the power to do so.
We are also conscious of the fact that insofar as the case filed by the petitioner is concerned, it has already reached the advanced stage of final arguments. In these circumstances, we would impress the Trial Court to have expeditious trial of the case which is filed by the respondent, possibly within one year.
The Special Leave Petition is disposed of.
Pending applications(s), if any, stands disposed of accordingly."
34. Dissatisfied with order dated 6.11.2017, applicant Nitin Jaiswal filed a Review Petition. Same was also dismissed, vide order dated 31.01.2018, which reads as under:
" The instant review petition is filed against the order dated 06.11.2017 whereby the aforementioned special leave petition was disposed of.
We have carefully gone through the review petition and the connected papers. We find no error much less apparent in the order impugned. The review petition is, accordingly, dismissed."
35. At this juncture, opposite party no.2, Nirmal Singh Garewal filed an application dated 05.12.2017 (Paper No. 70 kha) in Complaint Case No. 1716 of 2016 ((Nirmal Singh Garewal Vs. Nitin Jaiswal and others) with the prayer that he be provided Government Counsel (ADGC) to conduct complaint case, as same has been transferred to Court of Sessions.
36. Perusal of application dated 5.12.2017 (Paper No. 70 Kha) goes to show that same was filed on the grounds that Complaint Case No. 1716 of 2016 (Nirmal Singh Garewal Vs. Nitin Jaiswal and others) under Sections 143, 456 and 427 I.P.C., P.S.-Kotwali Bareilly, District-Bareilly, is the cross version of S.T. No. 123 of 2013 (State Vs. Nirmal Singh Garewal and Others under Sections 452, 307 IPC P.S.-Kotwali Bareilly, District-Bareilly. The aforesaid complaint case has been transferred to Court of Sessions vide order dated 13.7.2017, passed by Sessions Judge, Bareily in Criminal Misc. Transfer Application No. 113 of 2017 (Nirmal Singh Garewal and Others VS. Nitin Jaiswal and 6 others) filed under Section 408 Cr. P. C. Consequently, trial of above mentioned case has to be conducted in accordance with Section 225 Cr. P. C.
37. Aforesaid application dated 05.12.2017, filed by complainant was opposed by accused including present applicant and he, accordingly, filed an objection dated 21.12.2017 (Paper No.70-kha). In opposition to aforesaid application it was pleaded by applicant that application dated 5.12.2017 filed by complainant is not maintainable and is, therefore, liable to be dismissed. According to applicant, Complaint Case No. 1716 of 2016 (Nirmal Singh Garewal Vs. Nitin Jaiswal and others) under Sections 143, 456 and 427 I.P.C., P.S.-Kotwali Bareilly, District-Bareilly, is not the cross version of S.T. No. 123 of 2013 (State Vs. Nirmal Singh Garewal) and Others under Sections 452, 307 IPC P.S.-Kotwali Bareilly, District-Bareilly. Since above mentioned complaint case has not been transferred to Court of Sessions in terms of Sections 323 or 209 Cr.P.C. therefore, trial of complaint case shall not proceed in accordance with section 225 Cr.P.C. There is no provision in Section 225 Cr.P.C. which enables the Court to provide Government Counsel to complainant. Appointment of Government Counsel in a case triable by Court of Sessions is regulated by Section 209 (d) Cr.P.C. As the contingency provided in Section 209 (d) is not attracted in present case, inasmuch as the complaint case has neither been committed to Court of Sessions nor transferred in terms of section 323 Cr.P.C. therefore, prayer made by complaint for providing him with a Government Counsel to conduct the proceedings of complaint case is liable to be rejected.
38. Ultimately, Court below i.e. Additional Sessions Judge, Court No.1, Bareilly, vide order dated 25.01.2018 allowed application (paper no. 70 Kha) filed by complainant Nirmal Singh Garewal. It was, accordingly, directed that proceedings of above mentioned complaint case shall be conducted by Public Prosecutor and same shall proceed in accordance with Chapter XVIII Cr.P.C.
39. Order dated 25.1.2010 was passed by court below on the grounds that Sessions Judge, Bareilly, vide order dated 13.7.2017 has already concluded that S.T. No. 123 of 2013 (State Vs. Nirmal Singh Garewal and Others), under Sections 452, 307 IPC P.S.-Kotwali Bareilly, District-Bareilly, is the cross version of Complaint Case No. 1716 of 2016 (Nirmal Singh Garewal Vs. Nitin Jaiswal and others) under Sections 143, 456 and 427 I.P.C., P.S.-Kotwali Bareilly, District-Bareilly and accordingly directed A.C.J.M. Court No.2 Bareilly to transfer record of complaint case to the Court of Ist Additional Sessions Judge, Bareilly, where above mentioned Sessions Trial is pending. Court below further considered that in the order dated 13.7.2017, passed by Sessions Judge, Bareilly, it has been observed that Apex Court in Sudhir Vs. State of U.P., 2001 (2) SCC 688, and Nathi Lal Vs. State of U.P., 1990 Supp SCC 145 and Kerala High Court in Santosh Vs. State of Kerala (2007) (1) 139 AICLR (Kerala) have held that where the Magistrate does not commit cross case to Court of sessions, then Sessions Judge, by exercising powers under section 408(1) Cr.P.C. can transfer such case to Court of Sessions. It was in the light of aforesaid that transfer application filed by Nirmal Singh Garewal was allowed by Sessions Judge, Bareilly, vide order dated 13.7.2017, as concerned Magistrate refused to exercise jurisdiction under section 323 Cr.P.C. It was then observed that order dated 13.7.2017 passed by Sessions Judge, Bareilly was challenged by accused Nitin Jaiswal, vide Criminal Misc. Application U/S 482 No. 22262 of 2017. Aforesaid application was dismissed by High Court (vide order dated 29.8.2017, quoted above). The High Court in aforesaid order considered the judgement in case of Sudhir and Others Vs. State of U.P., 2001 (2) SCC 688, wherein Apex Court considered the judgement in Nathi Lal's Case and has observed that trial of case and counter case arising out of same incident should be conducted jointly. Supreme Court has further observed that even if one case is not being tried by Court of Sessions then by placing reliance upon judgement in Nathi Lal's Case (Supra) such trial can be conducted by Sessions Judge. It was further observed that when case is committed to Court of Sessions under section 209 Cr.P.C., then consequential trial will be conducted in accordance with Chapter XVIII Cr.P.C. In such cases, Magistrate can exercise powers under section 323 Cr.P.C. and without there being any formal committal to court of Sessions, it can be transferred to Court of Sessions. Thereafter Court discussed the ratio laid down in case of Sudhir (Supra). Ultimately, Court below concluded that in present case, complaint case has not been committed to Court of Sessions by Magistrate by exercising his Jurisdiction under section 323 Cr.P.C. The transfer application was allowed by Session Judge, which order has been affirmed by High Court, vide order dated 29.8.2017 and it was directed that Sessions Trial Case be tried along with complaint case. Against order dated 29.8.2017, Special Leave to Appeal was filed before Apex Court, which was rejected. Thus, Court below came to the conclusion that both the cases are related to each other, as has already been held by High Court. Transfer of complaint case shall be treated to be in alternative of section 323 and shall therefore, be tried in accordance with provisions of Chapter XVIII Cr.P.C. Consequently, by virtue of Section 225 Cr.P.C., public prosecutor has to be entrusted with the conduct of proceedings of complaint case.
40. According to applicant, since proceedings of above mentioned complaint case were being proceeded with, in an irregular/illegal manner, therefore, he filed an application dated 05.12.2017 (Paper No. 71 Kha) praying therein that entire proceedings against applicant and others be dropped.
41. Application (Paper No. 71 kha) was filed on the grounds that second final report dated 16.8.2013 was submitted by Police against which a protest petition was filed by complainant Opposite Party No.2. On this protest petition, C.J.M, Bareilly passed order dated 6.4.2015, directing further investigation. In compliance of aforesaid order, Police further investigated the matter and submitted final report (third final report) bearing no. 254 of 2015 dated 30.7.2015. Against third final report, complainant opposite party No. 2 Nirmal Singh Garewal submitted protest petition dated 20.8.2015. However, in ignorence of aforesaid, Court below passed an order dated 8.2.2016 on the protest petition filed against second final report dated 30.7.2015, whereby second final report dated 30.7.2015 was rejected and the protest petition filed against second final report was directed to be treated as a complaint. It was, therefore, urged before Court below that without accepting or rejecting third final report, the Magistrate could not have proceeded against applicant and the accused. As such, the proceedings are wholly illegal.
42. Above noted application (Paper No. 71 Kha) came to be rejected by Court below i.e. Additional Sessions Judge, Court No.1, Bareilly, vide order dated 23.06.2018. While rejecting aforesaid application, court below observed that it is true that while passing order dated 8.2.2016, Magistrate has not specifically referred to the third final report, but has taken cognizance of the same. While passing order dated 8.2.2016, intention of the Court was to reject the third final report No. 254/15 dated 30.7.2015. It was next concluded that order dated 8.2.2016 and summoning order dated 5.9.2016 were challenged before High Court by means of Criminal Misc. Application under Section 482 Cr. P. C. No. 37916 of 2018 (Maneesh Goel and others Vs. State of U.P. and another), but same was dismissed, vide order dated 8.3.2017. Therefore, objections raised by accused at this stage cannot be considered as same have already been rejected.
43. On the issue that complaint case has not been committed to the Court of Sessions, but has been transferred to the Court of Sessions, on the basis of order dated 13.7.2013, whereby transfer application under Section 408 Cr. P. C. filed by complainant was allowed, vide order dated 13.7.2013, Court below observed that it is true that procedure provided under Chapter XVI Cr. P. C. has not been followed. However, the complaint case has been transferred to Court of Sessions by Sessions Judge, Bareilly, vide order dated 13.7.2017. Aforesaid order dated 13.7.2017 was challenged by Nitin Jaiswal before High Court, vide Criminal Misc. Application No. 22262 of 2017, but same was dismissed, vide order dated 20.8.2017. Further order dated 20.8.2017 was challenged before Apex Court by way of Special Leave to Appeal (Criminal) No. 8152 of 2017 (Nitin Jaiswal Vs. State of U.P. and others). In view of above, it cannot be said that since proceedings for committal to the Court of Sessions have not taken place, therefore, entire proceedings of complaint case as have proceeded before Sessions Court are illegal and therefore liable to be set aside. Vide order dated 25.1.2018, (passed by Ist Additional Sessions Judge, Bareilly), it was directed that proceedings of complaint case shall proceed as a cross case in accordance with Chapter XVIII Cr. P. C. Accordingly, order dated 25.1.2018 is made part of the order. Court below further concluded that on the basis of evidence of witness, accused were summoned under Sections 143, 456 and 427 IPC. However, on the same evidence i.e. evidence of witness offence under Section 458 IPC is also made out and accordingly charge under aforesaid section is also liable to be framed. Submission urged on behalf of accused that statement of witnesses recorded under Section 202 Cr. P. C. is not evidence and therefore same cannot be relied upon for framing of charge, was rejected by Court below by placing reliance upon judgement in Sheo Prakash Tiwari and Others Vs. State of U.P. and another 2011 (3) JIC 131, wherein it has been held that upon consideration of statement under Sections 200 and 202 Cr. P. C. charges can be framed. On behalf of accused, it was also urged that protest petition must deal with all the facts stated in the complaint. However, in the present case, same has not been done. Court below rejected aforesaid argument by observing that in the present case, proceedings were initiated by submitting an application under Section 156 (3) Cr. P. C. and protest petition was filed against final report. In case, every fact has not been stated in the application, same will not make much difference, as it cannot be presumed that all facts have not been stated in the protest petition. Consequently, accused cannot be granted any benefit on that score also.
44. Thus, feeling aggrieved by orders dated 23.06.2018 and 25.01.2018 referred to above, applicant has now approached this Court by means of Present Application under Sections 482 Cr.P.C. Instant application came up for admission on 3.8.2018 and this Court passed following interim order:
"Heard Mr. Anoop Trivedi, learned counsel for the applicant in length and detail, the learned A.G.A. for the State and Mr. Sikandar Kochar, Advocate, who has put in appearance on behalf of the opposite party No. 2 by filing his vakalatnama in Court today, which is taken on record.
This application under section 482 Cr. P. C. has been filed with the following prayer:-
"It is, therefore, most respectfully prayed that this Hon'ble Court may very kindly be pleased to allow this application and to quash the orders dated 25.01.2018 passed by the Additional District Judge, Bareilly in Complaint Case no. 1716 of 2016 whereby the application no. 70 kha of the opposite party no. 2 has been allowed and the order dated 23.6.2018 passed by the Additional District Judge, First, Bareilly in Case No. 1716 of 2016 (Nirmal Singh Garewal Versus Nitin Jaiswal and other) under Sections 456, 427 and 143 I.P.C. and by which the application no. 71 (kha) (1) has been rejected."
Mr. Anoop Trivedi, learned counsel for the applicant submits that the applicant had filed an application (Paper No. 71 kha), whereby it was prayed that entire consequential proceedings subsequent to the order dated 8.2.2016 are null and void. The said prayer was made on the ground that since second final report had already been rejected, vide order dated 6.4.2015, therefore, by rejecting the said final report by means of the order dated 8.2.2106 and directing that the protest petition shall be treated as complaint and consequently proceeding thereafter in the matter as a complaint case has rendered the entire consequential proceedings illegal. He thus submits that subsequent to the order dated 6.4.2015 passed by the Magistrate, whereby the second final report was rejected and the protest petition was allowed with a direction for further investigation, the case was further investigated by the police and thethird final report dated 20.8.2015 has been submitted, which is pending consideration before the Magistrate.
On the aforesaid factual premise, the legal submission urged by the learned counsel for the applicant is that in the absence of an order rejecting the final report no direction can be issued by the Magistrate that the protest petition shall be treated as a complaint and accordingly to be proceeded with as a complaint case.
It is further submitted that the Court below while passing the impugned order dated 23.6.2018, whereby the application (Paper No. 71 Kha) had been rejected has travelled beyond the controversy and has also acted in excess of jurisdiction vested in it at that stage by observing that in view of the material on record, charges under sections 147, 458, 427 are also liable to be framed and for that purpose fixed the matter for 25.6.2018.
Sri Anoop Trivedi, learned counsel for the applicant at this stage submits that the Court below has no jurisdiction to pass the impugned order when the real issue was not answered one way or the other way.
It was next contended that by means of the impugned order dated 25.1.2018, the Court below has allowed the application (Paper No. 70 Kha) filed by the opposite party No. 2. From the record, it appears that the said application was filed by the opposite party No. 2 with a prayer that he be provided a Government counsel as the said case is going on in the Court of Sessions. The applicant his objection dated 21.12.2017. However, the Court allowed the same.
From the perusal of this bulky record, it transpires that one of the issues engaging the attention of the Court is whether the transfer of the complaint case to the Court of Sessions in exercise of power under section 409 Cr. P. C. is valid or not.
Learned counsel appearing on behalf of the opposite party No. 2 submits that the issue has become final and it cannot be open at this stage.
Perusal of the order dated 06.11.2017 passed by the Apex Court clearly shows that this question as to whether the Sessions Judge was empowered to transfer the complaint case under section 409 Cr. P. C. has been left open. It is admitted to the parties that pursuant to the order passed by the Apex Court, the said question has not been decided till date. It further transpires that the consolidation of the cases i.e. the State case and Complaint case has taken place in the light of the observations contained in the order dated 15.12.2016 passed by His Lordship Hon'ble Mr. Justice R.D. Khare. A perusal of the said order will go to show that in the proceedings in which the aforesaid order has been passed, a concession was made by the learned A.G.A. that both the cases are cross cases and on the basis of the said concession, the Court below passed the order dated 15.12.2016. Learned counsel for the applicant submitted that the applicant has filed a recall application seeking recall of the order dated 15.12.2016 which is pending.
In the light of the aforesaid facts, it is desirable that the recall application filed by the applicant in Criminal Misc. Application No. 38644 of 2016 be also heard along with the present application.
Put up this case along with the record of Criminal Misc. Application No. 38644 of 2016 as unlisted case on 10.08.2018.
Till then, the Court below is restrained from proceeding with the above mentioned complaint case pending before the Court of Sessions."
45. However, above quoted order dated 03.08.2018 was corrected by this Court, vide order 26.07.2019. It was now provided that in place of Section 409 Cr.P.C. occurring in 4th line of third last paragraph of order dated 3.8.2018, Section 408 Cr.P.C. shall be read.
46. It may be noted here that against above quoted interim order dated 03.08.2018, S.L.P. (Criminal) No.16536 of 2019 (Nirmal Singh Garewal Vs. State of U.P. and another) was filed before Apex Court. same was disposed of finally, vide order dated 10.05.2019, which is reproduced herein-under.
" Delay condoned.
These petitions by special leave have been filed against the interim orders passed by the High Court in an application under Section 482 Cr.P.C.
Learned counsel for the petitioner has submitted that the matter is already fixed for hearing on 17.05.2019. The application being pending, we are of the view that the High Court shall take steps for early disposal of the matter looking into the nature of issues which have been raised in the Application under Section 482 Cr.P.C. Learned counsel for the petitioner has relied upon an order of this Court dated 06.11.2017 passed in SLP (Crl.) No. 8152 of 2017.
The special leave petitions are disposed of accordingly."
47. Present application was taken up on 21.05.2019 and the Court hearing the matter passed following order:
"It appears that in this case previously a detailed order was passed on 3.8.2018, wherein the entire matter was comprehensively considered by the co-ordinate Bench of this Court and the matter was directed for further hearing along with the record of other connected cases. Both the parties have no objection, if the case is heard by the co-ordinate Bench of this Court (which passed the order on 3.8.2018).
Consequently, this case is released.
Office is directed to place this matter before the appropriate Court after obtaining nomination from Hon'ble The Chief Justice.
Till next date after nomination, interim order shall continue."
48. Subsequent to aforesaid order, office submitted report dated 23.05.2019 and on the basis of this office report, Hon'ble the Senior Judge, vide order dated 24.05.2019 nominated Criminal Misc. Application No. 25681 of 2018 (Nitin Jaiswal Vs. State of U.P. and another), Criminal Misc. Application No. 38644 of 2016 (Jaspreet Singh Garewal Vs. State of U.P. and another) and Criminal Misc. Application No.11932 of 2014 (Nirmal Singh Garewal Vs. State of U.P. and another) before this Court. Accordingly, the above mentioned Criminal Misc. Applications have come up before this Bench.
49. Criminal Misc. Recall Application No. 4345 of 2017 filed by opposite party no.2 Nitin Jaiswal in Criminal Misc. Application No. 38644 of 2016 (Jaspreet Singh Garewal Vs. State of U.P.) seeking recall of order dated 15.12.2016 was allowed by this Court vide order dated 19.09.2019. Consequently, order dated 15.12.2016 passed by this Court stood recalled. The effect of the same is that order of this Court dated 15.12.2016 holding that the two cases i.e. S.T. No. 123 of 2013 (State Vs. Nirmal Singh Garewal and Others under Section 452, 307 IPC P.S.-Kotwali Bareilly, District-Bareilly and Complaint Case No. 1716 of 2016 (Nirmal Singh Garewal Vs. Nitin Jaiswal and others) under Sections 143, 456 and 427 I.P.C., P.S.-Kotwali Bareilly, District-Bareilly, are cross cases came to be extinguished.
50. Order dated 19.09.2019 passed by this Court referred to above was challenged by Jaspreet Singh Garewal by filing Special Leave to Appeal (Criminal) No. 9850 of 2019 before Apex Court, wherein following order dated 13.11.2019 was passed:
" Application for exemption from filing official translation is allowed.
Issue notice on the special leave petition as well as on the prayer for interim relief, returnable in three weeks.
Dasti service, in addition, is permitted."
51. After order dated 13.11.2019 was passed by Apex Court, Mr. Sikander B. Kochar, learned counsel for opposite party No.2, filed an application praying therein that hearing of present application be deferred on account of pendency of above mentioned special leave petition before Supreme Court. Said application came to be rejected, vide order dated 22.11.2019. Consequently, counsel for parties were heard, at length, and in detail.
52. No counter affidavit has been filed by opposite party no.1 . Consequently, averments made in affidavit, filed in support of present application under section 482 Cr.P.C. remain un-rebuted. A short counter affidavit has been filed by Opposite Party No.2 but there is no parawise reply to the affidavit filed in support of Application under Section 482 Cr.P.C.
53. Perusal of short counter affidavit filed by opposite party no.2 goes to show that opposite party no.2 has brought on record various orders passed by Apex Court as well as this Court. The genesis of the same is that transfer of complaint case to the court of Ist Additional Sessions Judge where Sessions Trial is pending has become final and the same is not liable to be interfered with.
54. On the facts of the case as detailed above, Mr. Anoop Trivedi, learned Senior Counsel, appearing for applicant, submits that seven issues arise for determination in present application :- (i) Proceedings of Complaint Case No. 1716 of 2016 ( Nirmal Singh Garewal Vs. Nitin Jaiswal and others) were transferred from the Court of IInd Additional Chief Judicial Magistrate, Bareilly to the Court of Ist Additional Sessions Judge, Bareilly, vide order dated 13.7.2007 passed by Sessions Judge, Bareilly in Criminal Misc. Transfer Application No.113 of 2017 (Nirmal Singh Garewal Vs. Nitin Jaiswal and Others) under section 408 Cr.P.C. Aforesaid order dated 13.7.2007, was passed on the basis of order dated 15.12.2016, passed by this Court in Criminal Misc. Application U/S 482 Cr.P.C. No. 38644 of 2006 (Jaspreet Singh Garewal Vs. State of U.P. and others) wherein it was held that the two cases i.e. Complaint Case and Sessions Trial are cross cases. Once order dated 15.12.2016 has been recalled by this Court, vide order dated 19.9.2019, the basis of transfer of Complaint Case No. 1716 of 2016 (Nirmal Singh Garewal Vs. Nitin Jaiswal and others) under Sections 143, 456 and 427 I.P.C., P.S.-Kotwali Bareilly, District-Bareilly to the court of sessions vide order dated 13.7.2007 has now disappeared. Consequently, complaint case shall stand reverted to the Court of Additional CJM Court No. 2 Bareilly, where it was pending before transfer. (ii) Sessions Judge, Bareilly, vide order dated 13.7.2007 has only transferred the complaint case to the Court of Sessions, but has not consolidated the complaint case and the State case for being tried together as complaint case is the cross case of Sessions Trial. Additional District Judge, Court No.1 Bareilly has no jurisdiction under section 408 Cr.P.C. or otherwise to conclude that both the cases are related to each other and therefore have to be tried together. As such order dated 25.1.2018, passed by Ist Additional District Judge, Court No.1, Bareilly is totally illegal and without jurisdiction as it holds that both cases should be tried together as Complaint Case is cross version of Sessions Trial (iii) Complaint case has been transferred to the Court of Sessions but not committed to the Court of Sessions and therefore, proceedings of Complaint Case have to be conducted in accordance with the procedure provided in Cr.P.C. for conducting a complaint case. Therefore, merely on the ground that complaint case has been transferred to the Court of Sessions, it will not result in change of procedure regarding trial of complaint cases. (iv) In present case, in compliance of order passed by Magistrate, Police has investigated/reinvestigated the matter thrice and ultimately submitted third final report dated 30.7.2015. However, no orders have been passed on the third final report. To the contrary vide order dated 8.2.2016, Magistrate has rejected second final report and has proceeded with protest petition filed against second final report bearing No. 16/13 of 2013 dated 16.5.2013 by treating it as a complaint. Same is manifestly illegal as without adjudicating upon third final report, proceedings could not be initiated against applicant, and therefore finding recorded in order dated 23.6.2018 that Magistrate has taken cognizance of third final report is patently erroneous (v) Court below could not have proceeded to frame charges against applicant and others on the basis of deposition of complainant and his witnesses as recorded in terms of sections 200/202 Cr.P.C. as same is not evidence (vi) Subsequent to order dated 25.6.2018, applicant Nitin Jaiswal filed his discharge application dated 4.7.2018. The other five accused have filed their separate discharge applications dated 4.7.2018. Once the discharge applications have been filed by accused persons, the same ought to be decided first and only thereafter Court below should proceed to frame charge. (vii) The impugned orders dated 25.1.2018 and 23.6.2018, are therefore unsustainable in law and fact and hence liable to be set aside by this Court.
55. Learned A.G.A. representing opposite party No.1 has vehemently opposed present application. He submits that once Magistrate has taken cognizance by treating the protest petition filed by opposite party No.2 to the second final report dated 16.8.2013 as a complaint and further after undertaking the exercise as contemplated under sections 200/202 Cr.P.C, applicant and others have been summoned. As such, no infirmity can be said to be in existence in proceedings initiated against applicant and others. He further submits that summoning order dated 8.2.2016, passed in complaint case has already been challenged by accused before this Court and same has been upheld. Consequently, applicant cannot turn around now and plead illegality regarding the proceedings pending against them.
56. It is next submitted that complaint case is undoubtdly triable by Magistrate and therefore, same should be decided in terms of Chapter XVI Cr.P.C. However, in present case, complaint case has been transferred to Court of Sessions vide order dated 13.7.2007, passed by Sessions Judge, Bareilly, in terms of Section 408 Cr.P.C, therefore, by virtue of law laid down by Apex Court in case of Sudheer Vs. State of U.P., 2001 (2) SCC 688 and Nathi Lal Vs. State of U.P. 1990 Supp SCC 145, the complaint case can be tried by Court of Sessions in accordance with procedure provided in Chapter XVIII Cr.P.C. Thus, according to learned A.G.A. no illegality has been committed by Court below in passing impugned orders. Consequently, the present application is liable to be rejected.
57. Mr. Sikander B. Kocher, learned counsel representing opposite party no.2 opposing the present application submits that since vide order dated 19.9.2019, this Court has recalled the earlier order dated 15.12.2016, passed in Criminal Misc. Application No. 38644 of 2016 (Jaspreet Singh Garewal Vs. State of U.P.), the main defence of complainant opposite party No.2 that complaint case and Sessions Trial are cross cases has been taken away. Accordingly, it is urged by him that hearing of present application be deferred during pendency of Special Leave to appeal filed before Apex Court wherein order dated 19.9.2019 (detailed in paragpraph 40 of the judgement) has been challenged. Apart prom aforesaid, it is also urged that transfer of complaint case to the Court of Sessions has been affirmed by the Supreme Court. The same has become was final and therefore, submission liable to be rejected.
58. Before proceeding to consider the issues involved in present application, it would be worthwhile to reproduce the statutory provisions of the Code of Criminal Procedure (hereinafter refer to as 'Code') which have a material bearing on the controversy in hand.
" Section-309. Power to postpone or adjourn proceedings.--(1) In every inquiry or trial, the proceedings shall be continued from day-to-day until all the witnesses in attendance have been examined, unless the Court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded.
Provided that when the inquiry or trial relates to an offence under section 376, section 376A, section 376B, section 376C or section 376D of the Indian Penal Code (45 of 1860), the inquiry or trial shall, as far as possible be completed within a period of two months from the date of filing of the charge sheet.
(2) If the Court, after taking cognizance of an offence, or commencement of trial, finds it necessary or advisable to postpone the commencement of, or adjourn, any inquiry or trial, it may, from time to time, for reasons to be recorded, postpone or adjourn the same on such terms as it thinks fit, for such time as it considers reasonable, and may by a warrant remand the accused if in custody:
Provided that no Magistrate shall remand an accused person to custody under this section for a term exceeding fifteen days at a time:
Provided further that when witnesses are in attendance, no adjournment or postponement shall be granted, without examining them, except for special reasons to be recorded in writing:
Provided also that no adjournment shall be granted for the purpose only of enabling the accused person to show cause against the sentence proposed to be imposed on him.] [Provided also that ---
(a) no adjournment shall be granted at the request of a party, except where the circumstances are beyond the control of that party;
(b) the fact that the pleader of a party is engaged in another Court, shall not be a ground for adjournment.
(c) where a witness is present in Court but a party or his pleader is not ready to examine or cross-examine the witness, the Court may, if thinks fit, record the statement of the witness and pass such orders as it thinks fit dispensing with the examination-in-chief or cross-examination of the witness, as the case may be.] Explanation 1.- If sufficient evidence has been obtained to raise a suspicion that the accused may have committed an offence, and it appears likely that further evidence may be obtained by a remand, this is a reasonable cause for a remand.
Explanation 2.- The terms on which an adjournment or postponement may be granted include, in appropriate cases, the payment of costs by the prosecution or the accused.
\Section-323. Procedure when, after Commencement of inquiry or trial, Magistrate finds case should be committed.-- If, in any inquiry into an offence or a trial before a Magistrate, it appears to him at any stage of the proceedings before signing judgment that the case is one which ought to be tried by the Court of Session, he shall, commit it to that Court under the provisions hereinbefore contained and thereupon the provisions of Chapter XVIII shall apply to the commitment so made]."
"Section-408. Power of Sessions Judge to transfer cases and appeals.--(1) Whenever it is made to appear to a Sessions Judge that an order under this sub-section is expedient for the ends of justice, he may order that any particular case be transferred from one Criminal Court to another Criminal Court in his sessions division.
(2) The Sessions Judge may act either on the report of the lower Court, or on the application of a party interested, or on his own initiative.
(3) The provisions of sub- sections (3), (4), (5), (6), (7) and (9) of section 407 shall apply in relation to an application to the Sessions Judge for an order under sub-section (1) as they apply in relation to an application to the High Court for an order under subsection (1) of section 407, except that sub-section (7) of that section shall so apply as if for the words" one thousand rupees" occurring therein, the words" two hundred and fifty rupees" were substituted."
CHAPTER XVI COMMENCEMENT OF PROCEEDINGS BEFORE MAGISTRATES Section-204. Issue of process.- (1) If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be -
(a) a summons-case, he shall issue his summons for the attendance of the accused, or
(b) a warrant-case, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or (if he has no jurisdiction himself) some other Magistrate having jurisdiction.
(2) No summons or warrant shall be issued against the accused under sub-section (1) until a list of the prosecution witnesses has been filed.
(3) In a proceeding instituted upon a complaint made in writing, every summons or warrant issued under sub-section (1) shall be accompanied by a copy of such complaint.
(4) When by any law for the time being in force any process-fees or other fees are payable, no process shall be issued until the fees are paid and, if such fees are not paid within a reasonable time, the Magistrate may dismiss the complaint.
(5) Nothing in this section shall be deemed to affect the provisions of section 87.
Section-205. Magistrate may dispense with personal attendance of accused.- (1) Whenever a Magistrate issues a summons, he may, if he sees reason so to do, dispense with the personal attendance of the accused and permit him to appear by his pleader.
(2) But the Magistrate inquiring into or trying the case may, in his discretion, at any stage of the proceedings, direct the personal attendance of the accused, and, if necessary, enforce such attendance in the manner hereinbefore provided.
Section-206.Special summons in cases of petty offence.- (1) If, in the opinion of a Magistrate taking cognizance of a petty offence, the case may be summarily disposed of under section 260, the Magistrate shall, except where he is, for reasons to be recorded in writing of a contrary opinion, issue summons to the accused requiring him either to appear in person or by pleader before the Magistrate on a specified date, or if he desires to plead guilty to the charge without appearing before the Magistrate, to transmit before the specified date, by post or by messenger to the Magistrate, the said plea in writing and the amount of fine specified in the summons or if he desires to appear by pleader and to plead guilty to the charge through such pleader, to authorise, in writing, the pleader to plead guilty to the charge on his behalf and to pay the fine through such pleader:
Provided that the amount of the fine specified in such summons shall not exceed one hundred rupees.
(2) For the purposes of this section, petty offence means any offence punishable only with fine not exceeding one thousand rupees, but does not include any offence so punishable under the Motor Vehicles Act, 1939, (4 of 1939) or under any other law which provides for convicting the accused person in his absence on a plea of guilty.
Section-207.Supply to the accused of copy of police report and other documents.- In any case where the proceeding has been instituted on a police report, the Magistrate shall without delay furnish to the accused, free of cost, a copy of each of the following:-
(I) the police report;
(ii) the first information report recorded under section 154;
(iii) the statements recorded under sub-section (3) of section 161 of all persons whom the prosecution proposes to examine as its witnesses, excluding therefrom any part in regard to which a request for such exclusion has been made by the police officer under sub-section (6) of section 173;
(iv) the confessions and statements, if any, recorded under section 164;
(v) any other document or relevant extract thereof forwarded to the Magistrate with the police report under sub-section (5) of section 173:
Provided that the Magistrate may, after perusing any such part of a statement as is referred to in clause (iii) and considering the reasons given by the police officer for the request, direct that a copy of that part of the statement or of such portion thereof as the Magistrate thinks proper, shall be furnished to the accused:
Provided further that if the Magistrate is satisfied that any document referred to in clause (v) is voluminous, he shall, instead of furnishing the accused with a copy thereof, direct that he will only be allowed to inspect it either personally or through pleader in Court.
Section-208.Supply of copies of statements and documents to accused in other cases triable by Court of Session.- Where, in a case instituted otherwise than on a police report, it appears to the Magistrate issuing process under section 204 that the offence is triable exclusively by the Court of Session, the Magistrate shall without delay furnish to the accused, free of cost, a copy of each of the following:-
(i) the statements recorded under section 200 or section 202, of all persons examined by the Magistrate;
(ii) the statements and confessions, if any, recorded under section 161 or section 164;
(iii) any documents produced before the Magistrate on which the prosecution proposes to rely:
Provided that if the Magistrate is satisfied that any such document is voluminous, he shall, instead of furnishing the accused with a copy thereof, direct that he will only be allowed to inspect it either personally or through pleader in Court.
Section-209.Commitment of case to Court of Session when offence is triable exclusively by it.- When in a case instituted on a police report or otherwise, the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall-
(a) commit the case to the Court of Session;
(b) subject to the provisions of this Code relating to bail, remand the accused to custody during, and until the conclusion of, the trial;
(c) send to that Court the record of the case and the documents and articles, if any, which are to be produced in evidence;
(d) notify the Public Prosecutor of the commitment of the case to the Court of Session.
Section-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.
Chapter XVIII Section-225. Trial to be conducted by Public Prosecutor. (1) In every trial before a Court of Session, the prosecution shall be conducted by a Public Prosecutor.
Section-226. Opening case for prosecution. When the accused appears or is brought before the Court in pursuance of a commitment of the case under section 209, the prosecutor shall open his case by describing the charge brought against the accused and stating by what evidence he proposes to prove the guilt of the accused.
Section-227. Discharge. If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing.
Section-228. Framing of charge. (1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which-
(a) is not exclusively triable by the Court of Session, he may, frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate, and thereupon the Chief Judicial Magistrate shall try the offence in accordance with the procedure for the trial of warrant- cases instituted on a police report;
(b) is exclusively triable by the Court, he shall frame in writing a charge against the accused.
(2) Where the Judge frames any charge under clause (b) of sub- section (1), the charge shall be read and explained to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried.
Section-229. Conviction on plea of guilty. If the accused pleads guilty, the Judge shall record the plea and may, in his discretion, convict him thereon.
Section-230. Date for prosecution evidence. If the accused refuses to plead, or does not plead, or claims to be tried or is not convicted under section 229, the Judge shall fix a date for the examination of witnesses, and may, on the application of the prosecution, issue any process for compelling the attendance of any witness or the production of any document or other thing.
Section-231. Evidence for prosecution. (1) On the date so fixed, the Judge shall proceed to take all such evidence as may be produced in support of the prosecution.
(2) The Judge may, in his discretion, permit the cross- examination of any witness to be deferred until any other witness or witnesses have been examined or recall any witness for further cross- examination.
Section-232. Acquittal. If, after taking the evidence for the prosecution, examining the accused and hearing the prosecution and the defence on the point, the Judge considers that there is no evidence that the accused committed the offence, the Judge shall record an order of acquittal.
Section-233. Entering upon defence. (1) Where the accused is not acquitted under section 232, he shall be called upon to enter on his defence and adduce any evidence he may have in support thereof.
(2) If the accused puts in any written statement, the Judge shall file it with the record (3) If the accused applies for the issue of any process for compelling the attendance of any witness or the production of any document or thing, the Judge shall issue such process unless he considers, for reasons to be recorded, that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice.
Section-234. Arguments. When the examination of the witnesses (if any) for the defence is complete, the prosecutor shall sum up his case and the accused or his pleader shall be entitled to reply: Provided that where any point of law is raised by the accused or his pleader, the prosecution may, with the permission of the Judge, make his submissions with regard to such point of law.
Section-235. Judgment of acquittal or conviction. (1) After hearing arguments and points of law (if any), the Judge shall give a judgment in the case.
(2) If the accused is convicted, the Judge shall, unless he proceeds in accordance with the provisions of section 360, hear the accused on the question of sentence, and then pass sentence on him according to law.
Section-236. Previous conviction. In a case where a previous conviction is charged under the provisions of sub- section (7) of section 211, and the accused does not admit that he has been previously convicted as alleged in the charge, the Judge may, after he has convicted the said accused under section 229 or section 235, take evidence in respect of the alleged previous conviction, and shall record a finding thereon: Provided that no such charge shall be read out by the Judge nor shall the accused be asked to plead thereto nor shall the previous conviction be referred to by the prosecution or in any evidence adduced by it, unless and until the accused has been convicted under section 229 or section 235.
Section-237. Procedure in cases instituted under section 199 (2). (1) A Court of Session taking cognizance of an offence under sub- section (2) of section 199 shall try the case in accordance with the procedure for the trial of warrant- cases instituted otherwise than on a police report before a Court of Magistrate: Provided that the person against whom the offence is alleged to have been committed shall, unless the Court of Session, for reasons to be recorded, otherwise directs, be examined as a witness for the prosecution.
(2) Every trial under this section shall be held in camera if either party thereto so desires or if the Court thinks fit so to do.
(3) If, in any such case, the Court discharges or acquits all or any of the accused and is of opinion that there was no reasonable cause for making the accusation against them or any of them, it may, by its order of discharge or acquittal, direct the person against whom the offence was alleged to have been committed (other than the President, Vice- President or the Governor of a State or the Administrator of a Union territory) to show cause why he should not pay compensation to such accused or to each or any of such accused, when there are more than one.
(4) The Court shall record and consider any cause which may be shown by the person so directed, and if it is satisfied that there was no reasonable cause for making the accusation, it may, for reasons to be recorded, make an order that compensation to such amount not exceeding one thousand rupees, as it may determine, be paid by such person to the accused or to each or any of them.
(5) Compensation awarded under sub- section (4) shall be recovered as if it were a fine imposed by a Magistrate.
(6) No person who has been directed to pay compensation under subsection (4) shall, by reason of such order, be exempted from any civil or criminal liability in respect of the complaint made under this section; Provided that any amount paid to an accused person under this section shall be taken into account in awarding compensation to such person in any subsequent civil suit relating to the same matter.
(7) The person who has been ordered under sub- section (4) to pay compensation may appeal from the order, in so far as it relates to the payment of compensation, to the High Court.
(8) When an order for payment of compensation to an accused person is made, the compensation shall not be paid to him before the period allowed for the presentation of the appeal has elapsed, or, if an appeal is presented, before the appeal has been decided.
59. After hearing counsel for parties and upon evaluation of material on record in the light of relevant provisions of the Code as noted above following questions arise for consideration.
(i) Whether in view of order dated 19.9.2019, passed in Criminal Misc. Recall Application No. 4345 of 2017 in Criminal Misc. Application No. 38644 of 2018 (Jaspreet Singh Garewal Vs. State of U.P. and Others), whereby order dated 15.12.2016, passed by this Court has been recalled, the basis of order dated 13.7.2017, passed by Sessions Judge, Bareilly in Criminal Misc. Transfer Application No. 38644 of 2016 under Section 408 Cr.P.C. for transferring Complaint Case No. 1716 of 2016 (Nirmal Singh Garewal Vs. Nitin Jaiswal and Others) under Section 143, 456 and 427 IPC, P.S. Kotwali, Bareilly, District Bareilly to the Court of Ist Additional District Judge, Court No.1, Bareilly, wherein S.T. No 123 of 2013 (State Vs. Nirmal Singh Garewal and Others) was pending, has now disappeared and therefore, the proceedings of complaint case shall stand reverted to the Court of IInd A.C.J.M , Bareilly, where it was initially filed.
(ii) Whether Ist Additional Sessions Judge Bareilly, vide order dated 13.7.2017 has only transferred complaint case to Court of Sessions i.e. the Court of Ist Additional Sessions Judge, Court No.1 Bareilly, but has not consolidated the two cases to be tried as cross cases and therefore IInd Additional Sessions Judge, Bareilly could not proceed to conduct the trial of the two cases as cross cases as observed in the order dated 25.1.2018 passed by him.
(iii) Whether the transfer of a complaint case from the Court of Magistrate to the Court of Sessions, will also result in the change of procedure regarding trial of such cases or a complaint case triable by Magistrate shall be tried by Court of Sessions in accordance with the procedure provided in the Code for trial of complaint case by Magistrate.
(iv) Whether Court below should proceed to frame charges without deciding the discharge application.
(v) Whether charges can be framed in a complaint case on the basis of evidence recorded under Sections 200/202 Cr. P. C. or after recording evidence in terms of Section 244 Cr.P.C.
(vi) Whether the procedure adopted by Court below in proceedings against the accused even when the protest petition against the third final report was pending is justified.
(vii) Whether in the facts and circumstances of the Case, the impugned orders dated 25.1.2018 and 26.3.2018 are liable to be set aside by this Court.
60. Having noted the facts of the case, in detail and also formulated the questions which arise for determination, I now proceed to answer each of the questions so framed.
61. Question No.1:- is to the following effect:- Whether proceedings of complaint case shall stand reverted to the Court of IInd A.C.J.M, Bareilly after recall of order dated 15.12.2016, passed by this Court or not.
62. The facts necessary to answer this question have already been mentioned in detail herein above. Suffice it to mention here that opposite party No.2 filed an application under Section 309 Cr.P.C. (Paper No.323 Kha) in S.T. No. 123 of 2013 (State Vs. Nirmal Singh Garewal and Others) praying therein that complaint case is the cross version of aforesaid Sessions Trial and therefore both should be tried together. However, till it is done, proceedings of S.T. No. 123 of 2013 (State Vs. Nirmal Singh Garewal and Others) be stayed. This application came to be rejected by Court below vide order dated 02.12.2016. Feeling aggrieved by order dated 2.12.2016, Jaspreet Singh Garewal (co-accsused) filed Criminal Misc . Application U/S 482 Cr.P.C. No. 38644 of 2016 (Jaspreet Singh Garewal Vs. State of U.P. and Others) which was allowed by this Court vide order dated 15.12.2016. Order dated 02.12.2016 passed by court below was quashed with a direction to Court below for consideration afresh. Nothing has been brought on record to show as to what has subsequently happened to the application under section 309 Cr.P.C. filed by Nirmal Singh Garewal .
63. Be that as it may, there is no dispute regarding the fact that feeling aggrieved by order dated 02.12.2016 passed by this Court, Nitin Jaiswal, the informant in Sessions Trial, who was arrayed as opposite party No.2 in Crimilnal Misc. Application, wherein order dated 15.12.2016 was passed, filed recall application seeking recall of order dated 15.12.2016. Aforesaid recall application was ultimately allowed by this Court vide order dated 19.9.2019. Consequently, order dated 15.12.2016 stood recalled. Against order dated 19.9.2019, Nirmal Singh Garewal, filed Special Leave to appeal before Apex Court, wherein no interim order has been passed.
64. According to Mr. Anoop Trivedi, learned Senior Counsel appearing for applicant, vide order dated 13.7.2017 passed by Sessions Judge, Bareilly, complaint case giving rise to present application under section 482 Cr.P.C. was transferred to the Court of Ist Additional District Judge, Court No.1, Bareilly, where Sessions Trial was pending. This order was passed by placing reliance upon order dated 15.12.2016, passed by this Court. Once order dated 15.12.2016 itself has been recalled by this Court, the order dated 13.7.2017 being consequential in nature shall cease to exist. In short, the submission is that if the principal order has gone, the consequential order cannot stand.
65. What is the effect of recall of an order, has been explained by Apex Court in S. Rames and Others Vs. State represented by Inspector of Police and Others, (2019) 5 SCC 715, wherein following has been observed in paragraph 10:-
"10. In our considered opinion, the effect of recalling the orders dated 1.3.2018 was that the three criminal original petitions stood restored to their respective numbers for their disposal on merits in accordance with law as if the orders dated 1.3.2018 had not been passed in those cases and that they remained pending for their disposal on merits."
66. Admittedly, Crimianl Misc. Application No. 38644 of 2016 (Jaspreet Singh Garewal Vs. State of U.P) was filed challenging order dated 2.12.2016, passed by Court below, on the application under section 309 Cr. P.C wherein order dated 15.12.2016 was passed, has been dismissed by this Court by separate order of date. Thus order dated 2.12.2016 passed by Court below has been upheld by this Court. The effect of the same is that neither there was any ground to commit the complaint case under section 323 Cr.P.C. to the Court of Sessions as already held by Court below vide order dated 19.11.2016 nor there is any ground to stay the proceedings of Sessions Trial as held by Court below vide order dated 2.12.2016. Both these orders stand affirmed by this Court.
67. Reference may also be made to the judgement of Apex Court in Badri Nath Vs. Government of Tamilnadu (2000) 8SCC 395 wherein paragraph 27 Court has discussed about the effect of consequential orders when the basis of proceeding is gone. For ready reference same is reproduced hereunder:-
" This flows from the general principle applicable to "consequential orders." Once the basis of proceeding if gone, may be at a later point of time by order of a superior authority, any intermediate action taken in the meantime... like the recommendation of the State and by the UPSC and the action taken thereon .... would fall to the ground. This principle of consequential orders which is applicable to judicial and quasii-orders. In other words, where an order is passed by an authority and its validity is being reconsidered by a superior authority (Like the Governor in this case) and if before the superior authority has given its decision, some further action has been taken on the basis of the initial order of the primary authority, then such further action will fall to the ground the moment the superior authority has set aside the primary order."
68. In view of above, it can be safely concluded that once an order has been recalled, the effect of the same is that no such order was passed. Consequently, once the basis of order dated 13.7.2017, passed by Sessions Judge, Bareilly, in Criminal Misc. Transfer Application No. 113 of 2017 (Nirmal Singh Garewal and Other Vs. Nitin Jaiswal and 6 Others) under section 408 Cr.P.C i.e. order dated 15.12.2016, passed by this Court in Criminal Misc. Application No. 38644 of 2016 (Jaspreet Singh Garewal Vs. state of U.P. and another) has vanished, the consequential order dated 13.7.2017 shall also fall.
69. Challenge to order dated 13.7.2017 by accused before this Court was refused vide order dated 29.8.2017. Order dated 29.8.2017 was challenged before Apex Court, which also declined to interfere vide order dated 6.11.2017. These orders were passed when order dated 15.12.2016, passed by this Court, holding that two cases i.e. complaint case and sessions trial, are cross cases, was operating. Once order dated 15.12.2016 itself has ceased to exist, the consequential order dated 13.7.2017, shall also fall and orders passed by this Court as well as Apex Court referred to above cannot come in the way.
70. Therefore, in view of above, proceedings of complaint case should stand reverted to the Court of IInd A.C.J.M, Bareilly, where it was initially pending. Accordingly, as propriety demands proceedings of Complaint Case No. 1716 of 2016 (Nirmal Singh Garewal Vs. Niting Jaiswal and Others), shall stand reverted to the Court of Additional Chief Judicial Magistrate, Bareilly, where it was pending before transfer. Question No.1 stands answered accordingly.
71. Question No.2:- is to the effect:- Whether Additional Sessions Judge has no power to consolidate two cases on account of them being cross cases, therefore, order dated 25.1.2018, passed by Ist Additional Session Judge, Bareilly, holding that the two cases i.e. the complaint case as well as Sessions Trial are related to each other and therefore should be tried together (joint trial) is totally illegal and without jurisdiction.
72. It is evident from record that Complaint Case no. 1716 of 2016 (Nirmal Singh Garewal Vs. Nitin Jaiswal and others) was pending in the Court of IInd Additional Chief Judicial Magistrate, Bareilly. One of the accused in S.T. No. 123 of 2013 (State Vs. Nirmal Singh Garewal and Others) Jaspreet Singh Garewal filed an application under section 309 Cr.P.C. (paper no. 323 Kha) in S.T. No. 123 of 2013 (State VS. Nirmal Singh Garewal and Others) for stay of proceedings of above mentioned sessions trial. This application came to be rejected by Court below vide order dated 2.12.2016. Against order dated 2.12.2016, Nirmal Singh Garewal filed Criminal Misc . Application U/S 482 Cr.P.C. No. 38644 of 2016 (Jaspreet Singh Garewal Vs. State of U.P. and Others), which was allowed vide order dated 15.12.2016. This Court quashed the order dated 2.12.2016 and directed Court below to reconsider the matter, by holding that the two cases are cross-cases.
73. There is nothing on record to show as to what has happened to the application under section 309 Cr.P.C. (paper no. 323 Kha) after order dated 15.12.2016, was passed, by this Court.
74. Subsequently, Nirmal Singh Garewal, another co-accused in Sessions Trial filed Transfer Application No. 113 of 2017 (Nirmal Singh Garewal Vs. Nitin Jaiswal and 6 Others), under Section 408 Cr.P.C, before Sessions Judge, Bareilly seeking transfer of Complaint Case No. 1716 of 2016 (Nirmal Singh Garewal Vs. Nitin Jaiswal and Others) under sections 143, 456 and 427 IPC. P.S. Kotwali, District Bareilly, pending in the Court of Additional Chief Judicial Magistrate Court No. 2, Bareilly to the Court of Ist Additional Sessions Judge, Bareilly, where S.T. No. 123 of 2013 (State Vs. Nirmal Singh Garewal and others) was pending. This transfer application was allowed by Sessions Judge, Bareilly, vide order dated 13.7.2017, on the strength of order dated 15.12.2016, passed by this Court in Criminal Misc . Application U/S 482 Cr.P.C. No. 38644 of 2016 (Jaspreet Singh Garewal Vs. State of U.P. and Others). However, Sessions Judge, Bareilly by means of aforesaid order only transferred the complaint case to the Court of Sessions but did not direct that trial of both cases i.e. Complaint Case and Sessions Trial shall be held together (joint trial) as Sessions Trial is the cross version of complaint case.
75. Record shows that Ist Additional District Judge, Bareilly, vide order dated 25.1.2018, held that both the cases i.e. complaint case as well as session trial are cross cases and therefore shall be tried together.
76. According to Mr. Anoop Trivedi, learend Senior Cousnel, appeaing for applicant, Additional Sessions Judge, Court No.1, Bareilly has no power under section 408 Cr.P.C. to direct consolidation of two cases for being tried together (joint trial) on account of them being cross cases. He further submits that irrespective of various orders, passed by this Court and Apex Court, the question still remains open as is clearly evident from order dated 6.11.2017, passed by Apex Court. It is thus urged by learned Senior Counsel for applicant that order dated 25.1.2018, passed by Ist Additional District Judge, Court No. 1, Bareilly, whereby it also directs that both cases i.e complaint case as well as sessions trial shall be tried together on account of them being cross cases is manifestly illegal and without jurisdiction. As a result, the same is liable to be quashed.
77. Learned A.G.A. and Mr. Sikander B. Kochar, have jointly opposed aforesaid submissions urged by learned Senor Counsel for applicant. They submit that it is not open to the applicant to raise this question at this stage as the complaint case stands transferred to the Court of Sessions vide order dated 13.7.2017 and challenge to order dated 13.7.2017 has already been negated by this Court vide order dated 29.8.2017, passed in Criminal Misc. Application No. 22262 of 2017 (Niting Jaiswal VS. State of U.P. and another). Further order dated 29.8.2017, passed by this Court was assailed before Supreme Court but the Apex Court declined to interfere. Thus the transfer of complaint case to the Court of Ist Additional Seesions Judge, Bareilly, has attained finality and cannot be reopened.
78. Having heard counsel for parties, the factual position which emerges is that it is an undisputed fact that Sessions Judge, Bareilly, vide order dated 13.7.2017, only transferred complaint case to the Court of Sessions but did not direct that proceedings of complaint case shall be tried jointly with the pending Sessions Trial on account of them being cross cases. In such a situation, remedy before opposite party No.2 was to approach higher court for joint trial of the case i.e. Complaint Case and Sessions Trial. However, as already noted above, opposite party no.2 filed an application under section 323 Cr.P.C. for transfer of complaint case to the court of sessions but same was rejected vide order dated 19.12.2016 and same has been allowed to become final. It is well settled that jurisdiction is the creation of statue and same cannot be usurped or conferred by consent of the parties. Section 408 Cr.P.C. only empowers Sessions Judge to transfer and consolidate cases. This being the position, the Ist Additional Sessions Judge, clearly erred in holding that the trial of complaint case and sessions trial shall be held together as they are cross and hence order dated 25.1.2018, passed by Ist Additional Sessions Judge,, Bareilly being manifeslty illegal and without jurisdiction, cannot be sustained and is therefore, liable to be quashed. Accordingly it is held that Ist Additional Sessions Judge, Bareilly did not have the jurisdiction to consolidate the two cases i.e. complaint case and sessions trial for joint trial.
79. Queston No.3 is regarding the procedure to be followed by a Court of Sessions while trying a complaint case upon transfer, which was cognizable by the court of Magistrate. The question so framed is no longer res-integra and stands settled by the judgements of Apex Court in the case of Sudhir Vs. State of U.P. 2001 (2) SCC 688 and Natthi Nal Vs. State of U.P. 1990 (Suppl.) SCC 145, wherein it has been held that where the Magistrate does not commit cross-case to court of Sessions then Sessions Judge by exercising powers under Sections 408 (1) Cr.P.C. can transfer such case to Court of Sessions. Consequently, Sessions Court shall decide the complaint case so transferred in accordance with Chapter XVIII Cr.P.C.
80. Question No. 4 Whether Court below should proceed to frame charges without deciding discharge application.
81. The right to claim discharge is a statutory right recognized under the Code. Section 245 Cr. P. C. deals with right of an accused to seek discharge in a complaint case, whereas Section 227 deals with the right of an accused to claim discharge in a case triable by Sessions. Similarly Section 239 relates to the right of an accused to claim discharge in a warrant trial case triable by Magistrate.
82. In the light of above, two issues arise for determination. Whether the accused-applicant and co-accused can claim discharge under Section 245 Cr. P. C. or under Section 227 Cr. P. C. or under Section 239 Cr. P. C. Secondly, the discharge application filed by an accused has to be decided before charges are framed or even subsequently. The first issue has become redundant in view of my answer to question no.1 that proceedings of complaint case shall stand reverted to the court of Additional Chief Judicial Magistrate, Bareilly where it was earlier pending. Consequently, applicants can claim discharge under Section 245 Cr.P.C., before the Magistrate.
83. In the present case, applicant and other co-accused were summoned in a complaint case by the Magistrate, vide summoning order dated 5.9.2016. Thereafter, the case was transferred to the Court of Sessions, vide order dated 13.7.2007 passed by Sessions Judge, Bareilly. The Ist Additional Sessions Judge, Bareilly where Complaint Case has been transferred passed order dated 25.1.2018 and 26.3.2018. i.e (Orders impugned in present application). Subsequent to aforesaid orders, discharge applications dated 4.7.2018 have been filed by accused in above noted complaint case which are pending.
84. Chapter XVII of the Code deals with charge. It is by now well settled that once a charge has been framed, the Court has to answer the charge one way or the other. Therefore, in view of aforesaid the discharge application filed by an accused has necessarily to be decided before framing of charge.
85. In the present case, accused can claim discharge under Section 245 Cr.P.C. which reads as under:-
"245. When accused shall be discharged- (1) If, upon taking all the evidence referred to in section 244, the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him.
(2) Nothing in this section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless."
86. Under the scheme of the Code, in all propriety discharge application filed by applicant should be decided first and only thereafter Court should proceed to frame charges against the accused. I am fortified in this view by the judgement of Apex Court in Ajoy Kumar Ghose Vs. State of Jharkhand and Another, 2009 (14) SCC 115 wherein it has been held that the discharge application filed by the accused should be decided before framing of charges. For ready reference, paragraphs 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30 and 31 of aforesaid judgement, which deal with the issue in hand are reproduced herein-under:-
19. The essential difference of procedure in the trial of warrant case on the basis of a police report and that instituted otherwise than on the police report, is particularly marked in Sections 238 and 239 Cr.P.C. on one side and Sections 244 and 245 Cr.P.C., on the other. Under Section 238, when in a warrant case, instituted on a police report, the accused appears or is brought before the Magistrate, the Magistrate has to satisfy himself that he has been supplied the necessary documents like police report, FIR, statements recorded under sub-Section (3) of Section 161 Cr.P.C. of all the witnesses proposed to be examined by the prosecution, as also the confessions and statements recorded under Section 164 and any other documents, which have been forwarded by the prosecuting agency to the Court.
20. After that, comes the stage of discharge, for which it is provided in Section 239 Cr.P.C. that the Magistrate has to consider the police report and the documents sent with it under Section 173 Cr.P.C. and if necessary, has to examine the accused and has to hear the prosecution of the accused, and if on such examination and hearing, the Magistrate considers the charge to be groundless, he would discharge the accused and record his reasons for so doing. The prosecution at that stage is not required to lead evidence. If, on examination of aforementioned documents, he comes to the prima facie conclusion that there is a ground for proceeding with the trial, he proceeds to frame the charge. For framing the charge, he does not have to pass a separate order. It is then that the charge is framed under Section 240 Cr.P.C. and the trial proceeds for recording the evidence. Thus, in such trial prosecution has only one opportunity to lead evidence and that too comes only after the charge is framed.
21. However, in a warrant trial instituted otherwise than on a police report, when the accused appears or is brought before the Magistrate under Section 244(1) Cr.P.C., the Magistrate has to hear the prosecution and take all such evidence, as may be produced in support of the prosecution. In this, the Magistrate may issue summons to the witnesses also under Section 244(2) Cr.P.C. on the application by prosecution. All this evidence is evidence before charge. It is after all this, evidence is taken, then the Magistrate has to consider under Section 245(1) Cr.P.C., whether any case against the accused is made out, which, if unrebutted, would warrant his conviction, and if the Magistrate comes to the conclusion that there is no such case made out against the accused, the Magistrate proceeds to discharge him. On the other hand, if he is satisfied about the prima facie case against the accused, the Magistrate would frame a charge under Section 246(1) Cr.P.C. The complainant then gets the second opportunity to lead evidence in support of the charge unlike a warrant trial on police report, where there is only one opportunity.
22. In the warrant trial instituted otherwise than the police report, the complainant gets two opportunities to lead evidence, firstly, before the charge is framed and secondly, after the charge. Of course, under Section 245(2) Cr.P.C., a Magistrate can discharge the accused at any previous stage of the case, if he finds the charge to be groundless.
23. Essentially, the applicable Sections are Section 244 and 245 Cr.P.C., since this is a warrant trial instituted otherwise than on police report. There had to be an opportunity for the prosecution to lead evidence under Section 244(1) Cr.P.C. or to summon its witnesses under Section 244(2) Cr.P.C. This did not happen and instead, the accused proceeded to file an application under Section 245(2) Cr.P.C., on the ground that the charge was groundless.
24. Now, there is a clear difference in Sections 245(1) and 245(2) of the Cr.P.C. Under Section 245(1), the Magistrate has the advantage of the evidence led by the prosecution before him under Section 244 and he has to consider whether if the evidence remains unrebutted, the conviction of the accused would be warranted. If there is no discernible incriminating material in the evidence, then the Magistrate proceeds to discharge the accused under Section 245(1) Cr.P.C.
25. The situation under Section 245(2) Cr.P.C. is, however, different. There, under sub-Section (2), the Magistrate has the power of discharging the accused at any previous stage of the case, i.e., even before such evidence is led. However, for discharging an accused under Section 245 (2) Cr.P.C., the Magistrate has to come to a finding that the charge is groundless. There is no question of any consideration of evidence at that stage, because there is none. The Magistrate can take this decision before the accused appears or is brought before the Court or the evidence is led under Section 244 Cr.P.C. The words appearing in Section 245(2) Cr.P.C. "at any previous stage of the case", clearly bring out this position.
26. It will be better to see what is that "previous stage". The previous stage would obviously be before the evidence of the prosecution under Section 244(1) Cr.P.C. is completed or any stage prior to that. Such stages would be under Section 200 Cr.P.C. to Section 204 Cr.P.C. Under Section 200, after taking cognizance, the Magistrate examines the complainant or such other witnesses, who are present. Such examination of the complainant and his witnesses is not necessary, where the complaint has been made by a public servant in discharge of his official duties or where a Court has made the complaint or further, if the Magistrate makes over the case for inquiry or trial to another Magistrate under Section 192 Cr.P.C. Under Section 201 Cr.P.C., if the Magistrate is not competent to take the cognizance of the case, he would return the complaint for presentation to the proper Court or direct the complainant to a proper Court.
27. Section 202 Cr.P.C. deals with the postponement of issue of process. Under sub-Section (1), he may direct the investigation to be made by the Police officer or by such other person, as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding. Under Section 202(1)(a) Cr.P.C., the Magistrate cannot given such a direction for such an investigation, where he finds that offence complained of is triable exclusively by the Court of sessions. Under Section 202(1)(b) Cr.P.C., no such direction can be given, where the complaint has been made by the Court.
28. Under Section 203 Cr.P.C., the Magistrate, after recording the statements on oath of the complainant and of the witnesses or the result of the inquiry or investigation ordered under Section 202 Cr.P.C., can dismiss the complaint if he finds that there is no sufficient ground for proceeding.
29. On the other hand, if he comes to the conclusion that there is sufficient ground for proceeding, he can issue the process under Section 204 Cr.P.C. He can issue summons for the attendance of the accused and in a warrant-case, he may issue a warrant, or if he thinks fit, a summons, for securing the attendance of the accused. Sub-Sections (2), (3), (4) and (5) of Section 204 Cr.P.C. are not relevant for our purpose. It is in fact here, that the previous stage referred to under Section 245 Cr.P.C. normally comes to an end, because the next stage is only the appearance of the accused before the Magistrate in a warrant- case under Section 244 Cr.P.C.
30. Under Section 244, on the appearance of the accused, the Magistrate proceeds to hear the prosecution and take all such evidence, as may be produced in support of the prosecution. He may, at that stage, even issue summons to any of the witnesses on the application made by the prosecution. Thereafter comes the stage of Section 245(1) Cr.P.C., where the Magistrate takes up the task of considering on all the evidence taken under Section 244(1) Cr.P.C., and if he comes to the conclusion that no case against the accused has been made out, which, if unrebutted, would warrant the conviction of the accused, the Magistrate proceeds to discharge him.
31. The situation under Section 245(2) Cr.P.C., however, is different, as has already been pointed out earlier. The Magistrate thereunder, has the power to discharge the accused at any previous stage of the case. We have already shown earlier that that previous stage could be from Sections 200 to 204 Cr.P.C. and till the completion of the evidence of prosecution under Section 244 Cr.P.C. Thus, the Magistrate can discharge the accused even when the accused appears, in pursuance of the summons or a warrant and even before the evidence is led under Section 244 Cr.P.C., makes an application for discharge.
87. Consequently, aforesaid question is answered in favour of applicant and accordingly, it is held that discharge application filed by accused ought to have been decided first and thereafter, charges be framed.
88. Question No. 5, Whether charges can be framed in a complaint case on the basis of evidence recorded under Sections 200/202 Cr. P. C. Court below by placing reliance upon judgement in case of Sheo Prakash Tiwari and Others Vs. State of U.P. and another 2011 (3) JIC 131 has held that upon consideration of statements as recorded under Sections 200 and 202 Cr. P. C. charges can be framed. Mr. Anoop Trivedi, learned senior counsel for applicant has relied upon judgement of Apex Court in Sunil Mehta and another Vs. State of Gujarat and another, (2013) 9 SCC 209. wherein it has has clearly held that depositions of complainant and his witnesses recorded by Magistrate under Chapter XVI of the Code at the time of taking of cognizance of offence, cannot be considered as evidence for framing charge under Chapter XVI (Section 245). Evidence referred to in Section 245 should be construed in the light of section 3 and section 138 of Evidence Act. Paragraphs 9, 10, 11, 12 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23 and 24 of the aforesaid judgement are relevant for the controversy in present case and are therefore quoted herein below:-
"9. There is no gainsaying that a Magistrate while taking cognizance of an offence under Section 200, whether such cognizance is on the basis of the statement of the complainant and the witnesses present or on the basis of an inquiry or investigation in terms of Section 202, is not required to notify the accused to show cause why cognizance should not be taken and process issued against him or to provide an opportunity to him to cross- examine the complainant or his witnesses at that stage.
10. In contra distinction, Chapter XIX of the Code regulates trial of warrant cases by Magistrates. While Part A of that Chapter deals with cases instituted on a police report, Part B deals with cases instituted otherwise than on a police report. Section 244 that appears in Part B of Chapter XIX requires the Magistrate to "proceed to hear the prosecution" and "take all such evidence as may be produced in support of the prosecution" once the accused appears or is brought before him. Section 245 empowers the Magistrate to discharge the accused upon taking all the evidence referred to in Section 244, if he considers that no case against the accused has been made out which if unrebutted would warrant his conviction. Sub-section (2) of Section 245 empowers the Magistrate to discharge an accused even "at any previous stage" if for reasons to be recorded by such Magistrate the charges are considered to be "groundless". In cases where the accused is not discharged, the Magistrate is required to follow the procedure under Section 246 of the Code. That provision may at this stage be extracted:
"246. Procedure where accused is not discharged -
(1) If, when such evidence has been taken, or at any previous stage of the case, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try and which, in his opinion, could be adequately punished by him, he shall frame in writing a charge against the accused.
(2) The charge shall then be read and explained to the accused, and he shall be asked whether he pleads guilty or has any defence to make.
(3) If the accused pleads guilty, the Magistrate shall record the plea, and may, in his discretion, convict him thereon.
(4) If the accused refuses to plead, or does not plead or claims to be tried or if the accused is not convicted under sub-section (3), he shall be required to state, at the commencement of the next hearing of the case, or, if the Magistrate for reasons to be recorded in writing so thinks fit, forthwith, whether he wishes to cross-examine any, and, if so, which, of the witnesses for the prosecution whose evidence has been taken.
(5) If he says he does so wish, the witnesses named by him shall be recalled and, after cross-examination and re-examination (if any), they shall be discharged.
(6) The evidence of any remaining witnesses for the prosecution shall next be taken, and after cross-examination and re- examination (if any), they shall also be discharged."
11. A simple reading of the above would show that the Magistrate is required to frame in writing a charge against the accused "when such evidence has been taken" and there is ground for presuming that the accused has committed an offence triable under this Chapter which such Magistrate is competent to try and adequately punish.
12. Sections 244 to 246 leave no manner of doubt that once the accused appears or is brought before the Magistrate the prosecution has to be heard and all such evidence as is brought in support of its case recorded. The power to discharge is also under Section 245 exercisable only upon taking all of the evidence that is referred to in Section 244, so also the power to frame charges in terms of Section 246 has to be exercised on the basis of the evidence recorded under Section 244. The expression "when such evidence has been taken" appearing in Section 246 is significant and refers to the evidence that the prosecution is required to produce in terms of Section 244(1) of the Code. There is nothing either in the provisions of Sections 244, 245 and 246 or any other provision of the Code for that matter to even remotely suggest that evidence which the Magistrate may have recorded at the stage of taking of cognizance and issuing of process against the accused under Chapter XV tantamounts to evidence that can be used by the Magistrate for purposes of framing of charges against the accused persons under Section 246 thereof without the same being produced under Section 244 of the Code. The scheme of the two Chapters is totally different. While Chapter XV deals with the filing of complaints, examination of the complainant and the witnesses and taking of cognizance on the basis thereof with or without investigation and inquiry, Chapter XIX Part B deals with trial of warrant cases instituted otherwise than on a police report. The trial of an accused under Chapter XIX and the evidence relevant to the same has no nexus proximate or otherwise with the evidence adduced at the initial stage where the Magistrate records depositions and examines the evidence for purposes of deciding whether a case for proceeding further has been made out. All that may be said is that evidence that was adduced before a Magistrate at the stage of taking cognizance and summoning of the accused may often be the same as is adduced before the Court once the accused appears pursuant to the summons. There is, however, a qualitative difference between the approach that the Court adopts and the evidence adduced at the stage of taking cognizance and summoning the accused and that recorded at the trial. The difference lies in the fact that while the former is a process that is conducted in the absence of the accused, the latter is undertaken in his presence with an opportunity to him to cross-examine the witnesses produced by the prosecution.
13. Mr. U.U. Lalit, learned senior counsel appearing for the respondent- complainant strenuously argued that Section 244 does not envisage, leave alone provide for in specific terms, cross-examination of witnesses produced by the prosecution by the accused. He submitted that since the provision of Section 244 did not recognise any such right of an accused before framing of charges, it did not make any difference whether the Court was evaluating evidence adduced at the stage of cognizance and summoning of the accused or that adduced after he had appeared before the Magistrate under Section 244. He particularly drew our attention to sub-section (4) to Section 246 which requires the Magistrate to ask the accused whether he wishes to cross-examine any, and if so, which of the witnesses for the prosecution whose evidence has been taken. It was contended by Mr. Lalit that the provision of sub-section (4) to Section 246 provides for cross- examination by the accused only after charges have been framed and not before. There is, in our opinion, no merit in that contention which needs to be noticed only to be rejected. We say so for reasons more than one. In the first place, the expression "Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution" appearing in Section 244 refers to evidence within the meaning of Section 3 of the Indian Evidence Act, 1872. Section 3 reads as under:
3. Interpretation clause -
In this Act the following words and expressions are used in the following senses, unless a contrary intention appears from the context:-- xx xx xx "Evidence".--"Evidence" means and includes--
1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry, such statements are called oral evidence;
2) all documents including electronic records produced for the inspection of the Court, such documents are called documentary evidence."
14. We may also refer to Chapter X of the Evidence Act which deals with examination of witnesses. Section 137 appearing in that Chapter defines the expressions examination-in-chief, cross and re-examination while Section 138 stipulates the order of examinations and reads as under:
"138. Order of examinations.- Witnesses shall be first examined- in-chief, then (if the adverse party so desires) cross-examined, then (if the party calling him so desires) re-examined.
The examination and cross-examination must relate to relevant facts, but the cross-examination need not be confined to the facts to which the witness testified on his examination- in-chief.
Direction of re-examination.- The re-examination shall be directed to the explanation of matters referred to in cross- examination; and, if new matter is, by permission of the Court, introduced in re-examination, the adverse party may further cross-examine upon that matter."
15. It is trite that evidence within the meaning of the Evidence Act and so also within the meaning of Section 244 of the Cr.P.C. is what is recorded in the manner stipulated under Section 138 in the case of oral evidence. Documentary evidence would similarly be evidence only if the documents are proved in the manner recognised and provided for under the Evidence Act unless of course a statutory provision makes the document admissible as evidence without any formal proof thereof.
16. Suffice it to say that evidence referred to in Sections 244, 245 and 246 must, on a plain reading of the said provisions and the provisions of the Evidence Act, be admissible only if the same is produced and, in the case of documents, proved in accordance with the procedure established under the Evidence Act which includes the rights of the parties against whom this evidence is produced to cross-examine the witnesses concerned.
17. Secondly, because evidence under Chapter XIX (B) has to be recorded in the presence of the accused and if a right of cross-examination was not available to him, he would be no more than an idle spectator in the entire process. The whole object underlying recording of evidence under Section 244 after the accused has appeared is to ensure that not only does the accused have the opportunity to hear the evidence adduced against him, but also to defend himself by cross-examining the witnesses with a view to showing that the witness is either unreliable or that a statement made by him does not have any evidentiary value or that it does not incriminate him. Section 245 of the Code, as noticed earlier, empowers the Magistrate to discharge the accused if, upon taking of all the evidence referred to in Section 244, he considers that no case against the accused has been made out which may warrant his conviction. Whether or not a case is made out against him, can be decided only when the accused is allowed to cross- examine the witnesses for otherwise he may not be in a position to demonstrate that no case is made out against him and thereby claim a discharge under Section 245 of the Code. It is elementary that the ultimate quest in any judicial determination is to arrive at the truth, which is not possible unless the deposition of witnesses goes through the fire of cross-examination. In a criminal case, using a statement of a witness at the trial, without affording to the accused an opportunity to cross-examine, is tantamount to condemning him unheard. Life and liberty of an individual recognised as the most valuable rights cannot be jeopardised leave alone taken away without conceding to the accused the right to question those deposing against him from the witness box.
18. Thirdly, because the right of cross-examination granted to an accused under Sections 244 to 246 even before framing of the charges does not, in the least, cause any prejudice to the complainant or result in any failure of justice, while denial of such a right is likely and indeed bound to prejudice the accused in his defence. The fact that after the Court has found a case justifying framing of charges against the accused, the accused has a right to cross-examine the prosecution witnesses under Section 246(4) does not necessarily mean that such a right cannot be conceded to the accused before the charges are framed or that the Parliament intended to take away any such right at the pre-charge stage.
19. We are supported in the view taken by us by the decision of this Court in Ajoy Kumar Ghose (supra). That was a case where the trial Court had framed charges against the accused without the prosecution having any evidence whatsoever in terms of Section 244 of the Cr.P.C. This Court held that the procedure adopted by the trial Court was not correct because the language of Section 246(1) Cr.P.C. itself sufficiently indicated that charges have to be framed against the accused on the basis of some evidence offered by the complainant at the stage of Section 244(1). This Court observed:
"The language of the Section clearly suggests that it is on the basis of the evidence offered by the complainant at the stage of Section 244(1) Cr.P.C., that the charge is to be framed, if the Magistrate is of the opinion that there is any ground for presuming that the accused has committed an offence triable under this Chapter. Therefore, ordinarily, when the evidence is offered under Section 244 Cr.P.C. by the prosecution, the Magistrate has to consider the same, and if he is convinced, the Magistrate can frame the charge."
20. This Court further clarified that the expression "or at any previous stage of the case" appearing in Section 246(1) did not imply that a Magistrate can frame charges against an accused even before any evidence was led under Section 24. This Court approved the decision of the High Court of Bombay in Sambhaji Nagu Koli v. State of Maharashtra 1979 Cri LJ 390 (Bom), where the High Court has explained the purport of the expression "at any previous stage of the case". The said expression, declared this Court, only meant that the Magistrate could frame a charge against the accused even before all the evidence which the prosecution proposed to adduce under Section 244(1) was recorded and nothing more. This Court observed:
"44. In Section 246 Cr.P.C. also, the phraseology is "if, when such evidence has been taken", meaning thereby, a clear reference is made to Section 244 Cr.P.C. The Bombay High Court came to the conclusion that the phraseology would, at the most, mean that the Magistrate may prefer to frame a charge, even before all the evidence is completed. The Bombay High Court, after considering the phraseology, came to the conclusion that the typical clause did not permit the Magistrate to frame a charge, unless there was some evidence on record. For this, the Learned Single Judge in that matter relied on the ruling in Abdul Nabi v. Gulam Murthuza Khan 1968 Cri LJ 303 (AP)."
21. More importantly, this Court recognised the right of cross- examination as a salutary right to be exercised by the accused when witnesses are offered by the prosecution at the stage of Section 244(1) of the Code and observed:
"51. The right of cross-examination is a very salutary right and the accused would have to be given an opportunity to cross- examine the witnesses, who have been offered at the stage of Section 244(1) Cr.P.C. The accused can show, by way of the cross- examination, that there is no justifiable ground against him for facing the trial and for that purpose, the prosecution would have to offer some evidence. While interpreting this Section, the prejudice likely to be caused to the accused in his losing an opportunity to show to the Court that he is not liable to face the trial on account of there being no evidence against him, cannot be ignored."
22. In Harinarayan G. Bajaj v. State of Maharashtra & Ors. (2010) 11 SCC 520, this Court reiterated the legal position stated in Ajoy Kumar Ghose (supra) and held that the right of an accused to cross-examine witnesses produced by the prosecution before framing of a charge against him was a valuable right. It was only through cross-examination that the accused could show to the Court that there was no need for a trial against him and that the denial of the right of cross-examination under Section 244 would amount to denial of an opportunity to the accused to show to the Magistrate that the allegations made against him were groundless and that there was no reason for framing a charge against him. The following passages are in this regard apposite:
"18. This Court has already held that right to cross-examine the witnesses who are examined before framing of the charge is a very precious right because it is only by cross-examination that the accused can show to the Court that there is no need of a trial against him. It is to be seen that before framing of the charge under Section 246, the Magistrate has to form an opinion about there being ground for presuming that the accused had committed offence triable under the Chapter. If it is held that there is no right of cross-examination under Section 244,. then the accused would have no opportunity to show to the Magistrate that the allegations are groundless and that there is no scope for framing a charge against him.
xx xx xx
20. Therefore, the situation is clear that under Section 244, Cr. P.C. the accused has a right to cross-examine the witnesses and in the matter of Section 319, Cr.P.C. when a new accused is summoned, he would have similar right to cross-examine the witness examined during the inquiry afresh. Again, the witnesses would have to be re-heard and then there would be such a right. Merely presenting such witnesses for cross-examination would be of no consequence."
23. In the light of what we have said above, we have no hesitation in holding that the High Court fell in palpable error in interfering with the order passed by the Revisional Court of Sessions Judge, Gandhi Nagar. The High Court was particularly in error in holding that the appellant had an opportunity to cross-examine the witnesses or that he had not availed of the said opportunity when the witnesses were examined at the stage of proceedings under Chapter XV of the Code. The High Court, it is obvious, has failed to approach the issue from the correct perspective while passing the impugned order."
89. In view of the aforesaid authoritative pronouncements, it is clear that no charges can be framed, simply on the basis of statements which has been recorded under Sections 200 and 202 Cr. P. C. Consequently view taken by Court below vide order dated 26.3.2018 that charges under sections 147, 458 and 427 IPC are also liable to be framed, is manifestly erroneous.
90. Question No.6 as has been framed is reproduced hereinunder for ready reference:-
(vi) Whether the procedure adopted by Court below in proceedings against the accused even when the protest petition against the third final report was pending is justified.
91. It transpires from record that in respect of an incident, which occurred on 21.10.2012 at 3.00AM. at 126 Civil Lines, District-Bareilly, opposite party no.2, Nirmal Singh Garewal filed an application under Section 156 (3) Cr.P.C., in the Court of C.J.M. Bareilly, which was registered as Misc. Case No. 986 of 2012. Aforesaid application was allowed by concerned Magistrate. As a consequence of above, an FIR dated 25.11.2012 came to be registered as Case Crime No. 2675 of 2012 under Sections 307, 452, 427, 504, 506, 308, 436 and 392 IPC, PS-Kotwali Bareilly, District-Bareilly. In the aforesaid FIR, opposite party no.2 was shown as first informant, whereas present applicant along with 5 others namely Sachin Jaiswal, Adesh Jaiswal, Manish Goel, Annu Jaiswal and Raja Jaiswal were nominated as named accused. After aforesaid FIR was registered, Police undertook statutory investigation of the same in terms of Chapter XII Cr.P.C. Upon completion of investigation, Investigating Officer submitted a final report bearing No. 163 of 2012 dated 19.12.2012 (First Final Report) . Upon filing of above mentioned final report, Chief Judicial Magistrate, Bareilly examined the matter and directed for further investigation vide order dated 25.05.2013. In compliance of this order, Police further investigated the matter but again submitted a final report bearing No. 16/13 of 2013 dated 16.08.2013 (Second Final Report). Upon submission of second final report dated 16.08.2013, opposite party no.2 filed a protest petition. Thereafter, C.J.M., Bareilly passed an order dated 06.04.2015 directing further investigation. In compliance of aforesaid order dated 06.04.2015, Police again investigated the matter and submitted final report bearing No. 254 of 2015 dated 30.07.2015 (Third Final Report). Against aforesaid final report dated 30.07.2015, Complainant/opposite party no.2, Nirmal Singh Garewal submitted protest petition dated 20.08.2015.
92. It transpires from record that while protest petition dated 20.08.2015 was pending against 3rd final report, the concerned Magistrate passed an order dated 08.02.2016 by which final report dated 30.07.2015 (second trial report) was rejected and protest petition filed by complainant/opposite party no.2 against second final report was directed to be treated as a complaint. For ready reference operative portion of order dated 08.02.2016 is reporduced herein-below:
" vkns'k eq0v0la0&2675@12] /kkjk&307] 452] 436] 392] 380] 504 o 506 Hkk0 na0 la0 Fkkuk dksrokyh] ftyk cjsyh ds izdj.k esa foospd )kjk vafre fjikVZ la[;k&16@13 fnukafdr% 16-08-13 fujLr dh tkrh gS ,oa vkikfRr ;kfpdk dks ifjokn ds :i esa ntZ fd;k tk;sA i=koyh okLrs C;ku oknh varxZr ?kkjk&200 na0iz0la0 fnukad 17-01-2016 dks is'k gksA "
Order In the matter of Case Crime No. 2675/12, for offence u/s 307, 452, 436, 392, 380, 504 and 506 IPC, PS- Kotwali, District Bareilly, the final report no. 16/13 dated 16.8.2013 by the investigating officer is rejected and the objection be lodged as complaint. The file be put up for recording the statement of the complainant U/s 200 Cr.P.C. on 17.1.2016"
(English Translation by Court) Consequently, Complaint Case No. 1716 of 2016 (Nirmal Singh Garewal Vs. Nitin Jaiswal) came to be registered in the Court of C.J.M., Bareilly.
93. Mr. Anoop Trivedi, learned Senior counsel for applicant submits that it is an undisputed fact that the protest petition filed by the complainant opposite party No. 2 against the third final report bearing No. 254 of 2015 dated 3.7.2015 was pending consideration before Court below when order dated 8.2.2016 was passed whereby protest petition filed by complainant opposite party No. 2 against second final report was allowed and the protest petition was directed to be treated as a complaint. He further submits that without accepting or rejecting the third final report submitted in favour of the applicant and other co-accused, Court below could not have proceeded against the applicant and other co-accused. According to learned Senior counsel once a report has been submitted, then the Magistrate can take cognizance only under Section 190 (b) Cr. P. C. In the present case, however, Court has proceeded on the protest petition filed by complainant opposite party No. 2 against the second final report. Thus on date, the Court is proceeding against the applicant and other accused without deciding the third final report, which admittedly is in favour of the applicant and other co-accused. Such a procedure is contrary to law and therefore the impugned orders passed by Court below are liable to be quashed and the matter be remanded to Court below for deciding the protest petition filed by complainant opposite party no.2 against third final report and thereafter proceed accordingly.
94. Admittedly, against the third final report, protest petition filed by opposite party No. 2 was pending. However, without adjudicating the aforesaid protest petition, concerned Magistrate proceeded against the applicant and other co-accused, vide order dated 8.2.2016, whereby the protest petition filed against second final report was treated as a complaint and applicant and other accused were summoned.
95. Section 173 of the Code deals with Police Report and for convenience, same is reproduced herein below:
"173. Report of police officer on completion of investigation. (1) Every investigation under this Chapter shall be completed without unnecessary delay.
(1A) The investigation in relation to rape of a child may be completed within three months from the date on which the information was recorded by the officer in charge of the police station.
(2) (i) As soon as it is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government, stating-
(a) the names of the parties;
(b) the nature of the information;
(c) the names of the persons who appear to be acquainted with the circumstances of the case;
(d) whether any offence appears to have been committed and, if so, by whom;
(e) whether the accused has been arrested;
(f) whether he has been released on his bond and, if so, weather with or without sureties;
(g) whether he has been forwarded in custody under section 170.
(h) whether the report of medical examination of the womand has been attached where investigationi relates to an offence under section 376, 376A, 376B, 376C (Section 376D or section 376E of the Indian Penal Code (45 of 1860).)
(ii) The officer shall also communicate, In such manner as may be prescribed by the State Government, the action taken by him, to the person, if any, by whom the information relating to the commission of the offence was first given.
(3) Where a superior officer of police has been appointed under section 158, the report shall, in any case in which the State Government by general or special order so directs, be submitted through that officer, and he may, pending the orders of the Magistrate, direct the officer in charge of the police station to make further investigation.
(4) Whenever it appears from a report forwarded under this section that the accused has been released on his bond, the Magistrate shall make such order- for the discharge of such bond or otherwise as he thinks fit.
(5) When such report is in respect of a case to which section 170 applies, the police officer shall forward to the Magistrate alongwith the report-
(a) all documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation;
(b) the statements- recorded under section 161 of all the persons whom the prosecution proposes to examine as its witnesses.
(6) If the police officer is of opinion that any part of any such statement is not relevant to the subject- matter of the proceedings or that its disclosure to the accused is not essential in the interests of justice and is inexpedient in the public interest, he shall indicate that part of the statement and append a note requesting the Magistrate to exclude that part from the copies to be granted to the accused and stating his reasons for making such request.
(7) Where the police officer investigating the case finds it convenient so to do, he may furnish to the accused copies of all or any of the documents referred to in sub- section (5).
(8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub- section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub- sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub- section (2)."
96. The term charge-sheet and final report have not been defined in the Code. Charge-sheet or final report only means a report under section 173 of the Code.
97. Upon the submission of a report in terms of Section 173 (2) of the Code, against the accused the Magistrate may take cognizance and proceed with the matter. Such a cognizance shall be under section 190 (1)(b) of the Code.
98. However, in case a report different to the one as contemplated under section 173 (2) of the Code is submitted then the Magistrate is obliged to inform the first informant regarding submission of such report. The First Informant may file a protest against the report so submitted or the Magistrate may himself take cognizance on the basis of papers appended along with report. In such a situation the Magistrate shall take cognizance under section 190 (1) (a) of the Code.
99. In the present case, upon submission of third final report bearing number 254 of 2015 dated 30.7.2015, complainant opposite party No.2 Nirmal Singh Garewal has admittedly filed protest petition dated 20.8.2015. Aforesaid protest petition has remained pending till date.
100. As noted above, Court below after rejecting the second final report bearing number 16/13 of 2013 dated 16.8.2013 has treated the protest petition filed by complainant opposite party no.2 against the above mentioned second final report as a complaint and after undertaking the exercise, in terms of sections 200/202 of Code has summoned the present applicant. Thus, the factual position which emerges is that on the one hand the applicants have been summoned by treating the protest petition filed by complainant-opposite party No.2 against the second final report as as complaint, whereas the Police upon further investigation has submitted the third final report in favour of applicant and other co-accused against which protest petition dated 20.8.2015 has been filed and is pending adjudication.
101. Mr. Anoop Trivedi, learned Senior Counsel, also invited the attention of Court to the order dated 23.6.2018, passed by Court below, whereby the application (Paper no.71 Kha-1) filed by applicant that entire proceedings initiated against applicant are illegal and irregular, was rejected. Perusal of order dated 23.6.2018 goes to show that Court below, while rejecting above noted application has observed that the concerned Magistrate had taken cognizance of third final report, while passing the summoning order dated 8.2.2016. Furthermore, once summoning order dated 8.2.2016 has been challenged by applicant before High Court by means of an application under section 482 Cr.P.C. and subsequently, the order passed therein before Apex Court objections raised on behalf of applicant, at this stage cannot be considered.
102. According to learned Senior Counsel, both the reasonings recorded by Court below for rejecting the application filed by applicant are erroneous. If the Magistrate had taken cognizance upon the third final report, then in that eventuality, there was no occasion before him to undertake the exercise, in terms of sections 200/202 of Code. Furthermore, perusal of operative portion of summoning order dated 8.2.2016 (reproduced in paragraph 11 of this order) clearly shows that the Magistrate has proceeded after rejecting the second final report. This means that the third final report submitted by Police in favour of applicant has neither been accepted nor rejected by Court below till date. Aforesaid aspect of matter has not been considered by this Court, while rejecting Criminal Misc. Application No. 37916 of 2016 (Manish Goel and 5 others Vs. State of U.P. and Others), vide order dated 8.3.2017. It is also true that order dated 8.3.2017 was assailed before Apex Court but without any success.
103. In view of above, the issue that arises for consideration is whether this Court can now set aside the entire proceedings and allow the protest petition filed by complainant against the third final report to be adjudicated upon.
104. Admittedly, the third final report is in favour of accused-applicant. Under the scheme of the Code, the Magistrate is required to adjudicate upon the final report so submitted. It is the discretion of the Magistrate to reject the final report and take cognizance on the basis of material available on record or to inform the complainant and then proceed to decide. In case, the informant files a protest petition then the Magistrate shall proceed to decide the protest petition and in case it is allowed Magistrate can only thereafter, summon the prospective accused. In the present case, the first informant has already filed the protest petition against the third fianl report which is pending consideration. This protest petition cannot remain undecided. The procedural lapse has occurred on account of an act of court. It is well settled that act of court should prejudice none. Therefore, in view of aforesaid equitable principle coupled with the fact that no prosecution witnesses have been examined in complaint case, one possible view is that the protest petition filed by complainant opposite party No. 2 against the third final report be directed to be decided first, and the Court below shall proceed according to the outcome.
105. However, there is an another view of the matter. Against summoning order dated 05.09.2016 was passed by Magistrate, accused filed Criminal Misc. Application under Section 482 Cr.P.C. 37916 of 2016 (Manish Goyal and 5 others Vs. State of U.P. and another), which came to be dismissed vide order dated 08.03.2017.
106. Order dated 08.03.2017 came to be challenged before Apex Court by way of Special Leave to Appeal (Criminal) No. 359 of 2018 (Manish Goyal and others Vs. State of U.P. and another). Aforesaid Special Leave to Appeal came to be dismissed vide order dated 08.01.2018.
107. Effect of aforesaid orders is that the validity of the summoning passed by Magistrate against accused including present applicant has been upheld up to the Apex Court. The ground urged by learned Senior Counsel that the applicant and other accused have been summoned without deciding the protest petition filed by complainant against the third final report is a ground which was available at the time of challenging the summoning order passed by court-below before this Court as well as the order of this Court before Apex Court. It is well settled that if a ground available is not taken shall be deemed to have been taken.
108. The issue can be examined from another angle also. A subsequent 482 Application is maintainable provided new facts have emerged. However, in the present case, no such new fact has been brought on record on the basis it could be said that challenged to the proceedings of complaint case can be made.
109. As a consequence of aforesaid discussions made above. Question No.6 is answered in the negative against applicant and it is held that it is not open to the applicant to challenge summoning order in collateral proceedings.
110. Question 7, Whether impugned orders dated 25.01.2018 and 26.03.2018 are liable to set aside by this Court.
111. In view of findings returned by me on question nos. 1 to 5, the impugned order dated 25.01.2018 passed by court below cannot be sustained in law and fact whereas impugned order dated 26.03.2018 also passed by court-below cannot be sustained in part.
112. Consequently, present application succeeds and is liable to be allowed in part. Accordingly, it is party allowed. The impugned order dated 25.01.2018 is quashed whereas the impugned order dated 26.03.2018 is partly quashed in so far as it directs that charges can be framed on the basis of statement of complainant and his witnesses as recorded under Section 200/202 Cr.P.C. and also on the ground that court-below has proceeded to frame charges without deciding the discharge application. Rest of the order is maintained.
Order Date :- 10.09.2020/YK