Calcutta High Court (Appellete Side)
Sri Girish Mondal vs Sri Lalit Das & Ors on 7 September, 2009
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IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
APPELLATE SIDE
C.R.R. No. 655 of 2009
Present:
The Hon'ble Mr. Justice Syamal Kanti Chakrabarti
Sri Girish Mondal
Vs
Sri Lalit Das & Ors.
For the Petitioner : Mr. Arup C. Chatterjee,
Mr. Pravas Bhattacharyya,
For the Opposite Party No. 1 : Mr. Tushar Kanti Har,
For the State : Mr. Debabrata Roy.
Heard on : 02.09.2009
Judgement on : 07.09.2009
Syamal Kanti Chakrabarti, J:
This revisional application under Section 482 Cr.P.C. is
directed against order dated 06.01.2009 passed by the Learned
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Additional Sessions Judge, 4th Court, Paschim Midnapore in Criminal
Revision No. 122 of 2008. By such order the Learned Additional
Sessions Judge dismissed the revisional application and affirmed
order dated 16.04.2008 passed by the Learned Chief Judicial
Magistrate, Paschim Midnapore in Misc. Case No. 66 of 2005.
It is submitted by the Learned Lawyer for the petitioner that
on 16.01.2003 one Laxmikanta Mondal lodged a written complaint
before the Officer-in-Charge, Narayangarh Police Station giving
rise to a police case being No. 6/2003 under Section
147/148/149/325/326/427/435/354/379/307 IPC. Over the same incident which occurred on 16.01.2003 early in the morning one Girish Mondal, i.e., the present petitioner lodged a complaint before the Learned Chief Judicial Magistrate, Paschim Midnapore who after taking cognisance transferred the same being C. R. Case No. 191 of 2003 under Section 143/144/148/149/307/323/324/325/326/354/379/380/436/448/451/506 IPC to the 2nd Court of Learned Judicial Magistrate for further proceeding. The said complaint case instituted in 2003 is still at inquiry stage but the police case, now being registered as GR No. 58/03, has resulted in submitting charge sheet and now pending in the 4th Court of the Learned Judicial Magistrate, Paschim Midnapore. Attention of the Learned Judicial Magistrate, 2nd Court was drawn to this fact so that both the cases are dealt with 3 together but to no effect. Then the petitioner filed Misc. Case No. 66 of 2003 in the Court of the Learned Chief Judicial Magistrate, Paschim Midnapore with a prayer to call for the records of the abovementioned two cases with further prayer in committing both the cases to the Court of the Learned Sessions Judge, Paschim Midnapore after observing due formalities for analogous trial. But the Learned Chief Judicial Magistrate by order dated 16.04.2008 held that such prayer is premature and as such directed to send back the complaint case being no. 191 of 2003 to the Court of the Learned Judicial Magistrate, 2nd Court, Paschim Midnapore for further proceeding and the GR Case No. 58/03 was also directed to be send to the Court of the Learned 4th Judicial Magistrate, Paschim Midnapore for its disposal according to law. A revisional application was filed before the Learned Sessions Judge, Paschim Midnapore which was ultimately disposed of by the Learned Additional Sessions Judge, Paschim Midnapore on transfer. But the Learned Additional Sessions Judge, 4th Court, Paschim Midnapore dismissed the revisional application on 06.01.2009 and affirmed the order passed by the Learned Chief Judicial Magistrate, Paschim Midnapore dated 16.04.2008.
Being aggrieved by and dissatisfied with such order the present petitioner has preferred this revisional application 4 praying for setting aside the order dated 06.01.2009 which is not in conformity with the provisions of Section 210 Cr.P.C.
It appears from the impugned order dated 16.04.2008 passed by the Learned Chief Judicial Magistrate, Paschim Midnapore in Misc. Case No. 66 of 2005 that he has rejected such prayer on the ground that the GR Case ended in charge sheet but the complaint case is pending for examination of witnesses under Section 200 Cr.P.C. So at such interlocutory stage it cannot be concluded that both the cases originated out of the self-same incident. Therefore, he directed to send back both the cases to the respective Courts with further direction to the Learned Judicial Magistrate, 2nd Court, Paschim Midnapore to take up examination of the witnesses as early as possible and to issue process accordingly on consideration of available evidence and if it is found that both the cases are arising out of self-same incident and that the complaint is a sessions triable case, in that event the incident will get its maturity. While considering propriety of such order, the Learned Additional Sessions Judge, 4th Court, Paschim Midnapore in Criminal Revision No. 122 of 2008 dated 06.01.2009 has affirmed the order of the Learned Chief Judicial Magistrate on the grounds that in the complaint case the complainant is Girish Chandra Mondal and the date of incident is 16.01.2003 and 17.01.2003 at early morning hours in between 4 a.m. and 5 a.m. and the accused persons are 23 5 in numbers. In GR Case No. 58/03 it was found that the complainant is Laxmikanta Mondal and the accused persons are 29 in numbers but the date of incident is 16.01.2003 at 4 a.m. and the FIR was lodged on 16.01.2003 giving rise to Narayangarh P.S. case n. 6/03 which ultimately ended in charge sheet. But the complaint case was lodged on 21.04.2003 in which process has not yet been issued. Therefore, at this stage there is no scope for sending the complaint case to the Court of the Learned Judicial Magistrate, 4th Court, Paschim Midnapore for trying the same along with the police case. Since the complaint case is at inquiry stage, the Learned Revisional Court below is of the view that unless and until process is issued, there is no scope for thinking over the matter and the persons concerned cannot be treated as accused persons in the complaint case unless such process is issued. The right of the accused persons will accrue for trying both the complaint case and the police case by the same Court as and when they shall be summoned by the Learned Magistrate to appear before the Court after issue of process under Section 204 Cr.P.C. and from this point of view such application is premature so far as the complaint case is concerned. Therefore, the Learned Revisional Court below has held that the Learned Chief Judicial Magistrate, Paschim Midnapore has rightly rejected the prayer for sending the complaint case pending before the Court of the Learned 2nd Judicial Magistrate, Paschim Midnapore to the Court of the Learned 4th 6 Judicial Magistrate, Paschim Midnapore who is trying the GR Case No. 58/03 and from this point of view the order of the Learned Chief Judicial Magistrate does not suffer from any illegality. Consequently, the revisional application was dismissed on contested without cost and order dated 16.04.2008 was passed by the Learned Chief Judicial Magistrate, Paschim Midnapore was affirmed.
I have gone through the FIR in the complaint being C. R. Case No. 191 of 2003 in which there is allegation of assault, theft of gold ornaments and other household articles of Rs. 30,000/-, setting fire on the stack of straw etc. by one Girish Mondal upon the complaint party by 23 persons on 16.01.2003 at about 4 a.m. and second assault on 17.01.2003 at 5 a.m. at the same place. On the contrary, from the FIR of the police case being no. 6/03 dated 16.01.2003 it appears that there was allegation of assault and theft of household articles of Rs. 15,000 - 20,000/- upon the defacto complainant party by 29 persons firstly, on 16.01.2003 at 4 a.m. Therefore, distinct charges for consecutive attacks at the same place of occurrence can no doubt be investigated into and tried together if prima facie materials are established after inquiry by the Learned Magistrate or investigation by the police officer as the case may be.
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The provisions laid down in Section 210 Cr.P.C. provides as follows:-
"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 8 proceed with the inquiry or trial, which was stayed by him, in accordance with the provisions of this Code."
I lay much emphasis upon the words "it is made to appear to the Magistrate, during the course of the inquiry or trial held by him", referred to in Sub-Section 1 of Section 210 Cr.P.C. It is claimed in the instant petition that a prayer was made before the Learned Magistrate trying the complaint case for analogous trial, stay of his proceeding and to call for a report on the matter from the police officer conducting the investigation in the police case over the self-same incident. But no such petition or order thereon by the Learned Judicial Magistrate, 2nd Court, Paschim Midnapore is forthcoming to substantiate such claim. On the contrary, from the order of the Learned Chief Judicial Magistrate, Paschim Midnapore it will appear that such prayer was made before the Learned Chief Judicial Magistrate at first for compliance of the statutory provisions laid down in Section 210 Cr.P.C. who was not competent to stay the proceedings pending before the Learned Judicial Magistrate, 4th Court, Paschim Midnapore in the complaint case. In the present case the competent authority is the Judicial Magistrate, 2nd Court, Paschim Midnapore to deal with the provisions of Section 210 Cr.P.C.
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It is evident that the initial approach was made before a wrong forum and the revisional application was also preferred against such order of the Learned Chief Judicial Magistrate, Paschim Midnapore ignoring this aspect. Accordingly, I hold that the findings of the Learned Chief Judicial Magistrate, Paschim Midnapore which was affirmed by the Additional District and Sessions Judge, Paschim Midnapore is not in conformity with the spirit of Section 210(1) Cr.P.C. I also hold that application sub- Section (1) of Section 210 Cr.P.C. is to be made before the Learned Magistrate with whom such a complaint is lodged and he is to consider such prayer during the course of inquiry or trial. The words 'inquiry' or 'trial' have stretched the span and empowers a Magistrate to entertain such prayer at any stage of the proceedings. So in dealing with such matter the plea of premature application cannot be taken.
Question may be raised as to whether in a police case where investigation is not only in progress, as referred to in Section 210(1) Cr.P.C., but has also been completed such prayer can be entertained by the Magistrate dealing with the complaint case. The sprit of Section 210 Cr.P.C. is to avoid multiplicity of proceedings and there is specific provision for joinder of charges in Sections 218, 219 and 220 Cr.P.C. If we make a harmonious construction of Sections 210, 218, 219 and 220 Cr.P.C. it will be 10 abundantly clear that circumstances involved in the instant case will come under the purview of Section 210(1) Cr.P.C. If a contrary view is taken to limit scope of sub-Section (1) of Section 210 Cr.P.C. during the course of investigation of the police case, harmonious construction of the code will be impaired. So, I hold that the words "investigation by the police is in progress" mentioned in sub-Section (1) of Section 210 Cr.P.C. should be liberally construed and extended meaning of the word "progress" should reach its finality up to the end of such investigation.
The petitioner in the instant case should file an application before the Learned Judicial Magistrate, 2nd Court, Paschim Midnapore drawing his attention to the police report already submitted in the G.R. Case now being pending before the Learned Judicial Magistrate, 2nd Court, Paschim Midnapore and on receipt of such application the Learned Judicial Magistrate, 2nd Court, Paschim Midnapore will consider and dispose of the same in accordance with law.
For the said purpose, I hold that both the impugned orders of the Learned Additional District and Sessions Judge and the Learned Chief Judicial Magistrate, Paschim Midnapore suffer from material 11 irregularity which, unless interfered with, will lead to miscarriage of justice.
For the reasons stated above both these orders are set aside granting liberty to the petitioner to make such prayer before the Learned Judicial Magistrate, 2nd Court, Paschim Midnapore within fifteen days from the date of this order who will act according to law and on the basis of the observations made above.
The revisional application is thus disposed of. Criminal Section is directed to send copies of this order to the Learned Court below.
Supply urgent certified copies, if applied for.
(S. K. Chakrabarti, J.)