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Factual Matrix

3. The fact given as to present controversy in the opposite party no.2 has lodged an F.I.R. in Case Crime No.62 of 2022, under Sections 498-A, 323, 504 and 3/4 D.P. Act against Harinandan Singh, Janardan Singh, Sheela Singh, Sumer Singh, Pooja Singh, Krishna Pratap Singh. Police after investigation has submitted charge sheet.

4. It is also clear from the record that prior to lodging the aforesaid F.I.R., opposite party no.2 had also filed a complaint on 25.1.2022 against all accused persons. Subsequently, the police after investigation has submitted charge sheet against the applicant nos.1, 2 and 3 (Janardan Singh, Harinandan Singh and Sheela Singh). The court below has also taken cognizance for the same and in the complaint case filed by the opposite party no.2, all the applicants were summoned on 18.11.2022. Thereafter, applicants moved an application under Section 210 Cr.P.C. to connect the case registered on police report as well as complaint case. During the pendency of that application, applicants approached this Court through Application U/S 482 Cr.P.C. No.10320 of 2024, which was disposed of vide order dated 18.04.2024, directing the court below to disposed of the application of the applicants, under Section 210 Cr.P.C. In pursuance of order of this Court, the court below has passed the order dated 16.09.2024, by which complaint as well as State case were consolidated together to try the same, this order is under challenge in the present application.

5. Learned counsel for the applicants has submitted that as the applicant nos.4, 5 and 6 were not charge sheeted in police case though they are accused in complaint case, therefore, they cannot be tried together with the other accused persons in view of Section 210(3) Cr.P.C.

6. Learned A.G.A. has vehemently opposed the prayer made by learned counsel for the applicants and submitted that there is no illegality in the impugned proceeding as Section 210(3) Cr.P.C. which provides if any person is charge sheeted but not the accused in complaint only then Section 210(3) Cr.P.C. will apply but in the present case, all the accused in police report relates to the accused in a complaint case, therefore, there is no illegality in the impugned order.

7. After hearing learned counsel for the parties and on perusal of records, it appears that the applicant nos.4, 5 and 6 though summoned in the complaint case but not charge sheeted in police report despite the fact they were named as accused in F.I.R. For the applicability of Section 210(3) Cr.P.C., it is necessary that the accused mentioned in complaint case should not be the accused in police report. For reference Section 210 Cr.P.C. is quoted as under:-

"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.

16. From the joint reading of Section 210 Cr.P.C. as well as 223 Cr.P.C. in the light of legal position discussed above, it is made clear that even if the case of joint trial does not fall under Section 210 Cr.P.C. even then trial of complaint case and police case can be conducted jointly under Section 223 Cr.P.C. so as to avoid the failure of justice or prejudice any accused who is charge sheeted in police report as well as who is also accused in complaint case.

17. In the present case applicant Nos.1, 2 and 3 are accused in police case as well as in complaint case, if the trial is permitted to conduct separately for the same offence arising out of same incident then this would seriously prejudice the right of applicant nos.1, 2 and 3 but in the present case the applicants themselves prayed that their trial of police case as well as complaint case should not be conducted jointly. In such circumstances, directing to conduct the trial of complaint case as well as police case jointly as police case will amount to failure of justice to the applicants. As the Section 223 Cr.P.C. itself an enabling provision, therefore, even if the case for joint trial is made out even then the Court can direct for separate trial considering the interest of the accused. In the present case, though, case of the applicants covers under Section 223 (a) of the Cr.P.C. as all the accused persons are charged with same offence committed in course of the same transaction but considering the fact that applicant nos.4, 5 and 6 are not accused in police case and they are accused only in complaint case, therefore, forcing them to face the trial of police case will itself amount to failure of justice. Therefore, both the cases (police case as well as complaint case) as mentioned in the impugned order should not be consolidated but this should be tried together.