Madhya Pradesh High Court
Satyendra Singh @ Satta vs Lakhavinder Singh on 27 June, 2017
Author: G.S. Ahluwalia
Bench: G.S. Ahluwalia
1 MCRC.12206/2014
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
SINGLE BENCH
PRESENT:
HON'BLE MR. JUSTICE G.S. AHLUWALIA
Misc. Criminal Case No.12206/2014
Satyendra Singh & Ors.
-Vs-
Lakhavinder Singh & Anr.
________________________________________________
Shri Rajesh Shukla, counsel for the applicants.
Shri Atul Sharma, counsel for the respondent no.1.
Shri Prakhar Dhengula, Panel Lawyer for the respondent
No.2/State.
________________________________________________
ORDER
(27/06/2017) This application under Section 482 of Cr.P.C. has been filed against the order dated 14-11-2014 passed by 1 st A.S.J., Dabra, in Criminal Revision No. 399/2010 affirming the order dated 12-7-2009 passed by J.M.F.C., Dabra in criminal case No. 2357/2009 by which the Magistrate took cognizance of the offence under Section 307/34 of I.P.C. on the complaint filed by the respondent no.1.
The necessary facts for the disposal of the present application in short are that the respondent no.1 filed a criminal complaint against the applicants for offence under Section 307/34 of I.P.C. on the allegations that on 26-4-2003, he was taking rest in his fields and his servant was also sleeping. At that time, the applicants came there and enquired about the complainant. When the complainant replied that he 2 MCRC.12206/2014 is Satyendra Singh, at that time, after extending the threat, the applicant no. 1 fired at him by 12 bore gun which caused injury on the palm of the left hand. The incident was witnessed by the father of the complainant and other witnesses. It was further alleged that as the brother-in-law of the complainant was killed by applicant no.2 and others and only because of that enmity, the gun shot was filed at him.
The Trial Magistrate, after recording the statements of the witnesses under Section 200 and 202 of Cr.P.C. took cognizance of the offence under Section 397/34 of I.P.C.
Being aggrieved by the order of the Trial Magistrate, the applicants filed a criminal revision which too has been dismissed by the Revisional Court by order dated 14-11-2014. Hence, this application under Section 482 of Cr.P.C.
A singular submission has been made by the Counsel for the applicants that the police investigation on the report of the complainant was already pending as it would be evident from the statement of Jagdish Prasad Bhatt, P.W. 6, S.H.O., Police Station Bijouli, Distt. Gwalior, therefore, when an investigation was already pending in respect of the same offence, then the Trial Magistrate should have stayed the proceedings under Section 210 of Cr.P.C. and should have waited for the outcome of the police investigation.
The Counsel for the respondent no. 1 submitted that he is not in a position to make submissions because his office file is not complete, although he had already filed his vakalatnama on 27-3-2015 i.e., more than 2 years earlier, thus he did not argue the matter.
The Counsel for the State supported the order passed by the Courts below.
Heard the learned Counsel for the parties. Section 210 of Cr.P.C. reads as under :
"210. Procedure to be followed when 3 MCRC.12206/2014 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."
Thus, from the plain reading of Section 210(1) of Cr.P.C. it is clear that when the police investigation in respect of the same offence is pending then the Magistrate shall stay the proceedings of such enquiry or trial and shall call for the report.
In the present case, the applicants have not filed the copy of the complete order sheets. The statement of Jagdish Prasad (P.W.6) was recorded on 2-3-2006 whereas the cognizance was taken by the Trial Magistrate on 20-7-2009 i.e., after more than 3 years. As the order-sheets of the intervening period have not been filed, therefore, it cannot be said that the Trial Court did not stay the proceedings as 4 MCRC.12206/2014 required under Section 210(1) of Cr.P.C. Further more, it is clear from the order of the Revisional Court, that it was argued by the applicants that since, the police had found the said incident as false therefore, the Trial Magistrate should not have cognizance of the offence. Thus, it is clear that the report of the Police was also requisitioned by the Trial Magistrate before taking cognizance of the offence.
Further more, it is submitted by the Counsel for the applicants that the case has been committed and charges have also been framed.
Even otherwise, although the provision of Section 210(1) of Cr.P.C. is mandatory, but in view of Section 465 of Cr.P.C., the proceedings cannot be quashed.
Section 465 of Cr.P.C. reads as under :
"465. Finding or sentence when reversible by reason of error, omission or irregularity.-- (1) Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered by a Court of appeal, confirmation or revision on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or any error, or irregularity in any sanction for the prosecution, unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby.
(2) In determining whether any error, omission or irregularity in any proceeding under this Code, or any error, or irregularity in any sanction for the prosecution has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings."
The Supreme Court in the case of Dilawar Singh Vs. State of Delhi, reported in (2007)12 SCC 641 has held as 5 MCRC.12206/2014 under :
"14. The provisions of Section 210 CrPC are mandatory in nature. It may be true that non-compliance with the provisions of Section 210 CrPC, is not ipso facto fatal to the prosecution because of the provision of Section 465 CrPC, unless error, omission or irregularity has also caused the failure of justice and in determining the fact whether there is a failure of justice the court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings."
According to the Counsel for the applicants, the case has already been committed and the charges have been framed, therefore, even otherwise, considering the present status of the Trial, the case cannot be remanded back to the Trial Magistrate to follow the provision of Section 210 of Cr.P.C.
Considering the totality of the circumstances, this application under Section 482 of Cr.P.C. fails and is hereby dismissed.
(G.S. AHLUWALIA)
(alok)* Judge