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19. Furthermore, the committal of the case in terms of Section 209 of the Cr.P.C. is to be taken up when police paper or the statement of the witnesses is furnished upon the accused as provided under Section 207 of the Cr.P.C., which could only materialize after appearance of the accused. Apart from this, when accused Suresh Sah and MantunSah were produced before the learned lower Court in execution of warrant of arrest non-bailable on 13.05.2005, simply releasing him without granting bail as well as staying the proceeding under Section 210 of the Cr.P.C. speaks a lot, more particularly on account of non-consideration of niceties of Section 210 of the Cr.P.C. That being so, the learned lower Court had frustrated the requirement of Section 210(2) of the Cr.P.C. and the subsequent eventualities as perceived is found suffering from impropriety.

"26. Section 210 Cr.P.C. provides the procedure to be followed when there is a complaint case and police investigation in respect of the same offence. Sub-Section (1) of Section 210 provides that when in a case instituted otherwise than on a police report, namely, a complaint case, the Magistrate is informed during the course of inquiry or trial that an investigation by the police is in progress in relation to the offence which is the subject matter of inquiry or trial held by him, the Magistrate is required to stay the proceedings of such inquiry or trial and to call for a report on the matter from the Police Officer conducting the investigation.

14. The provisions of Section 210, Cr.P.C, are mandatory in nature. It may be true that non- compliance with the provisions of Section 210, Cr.P.C., is not ipso facto fatal to the prosecution because of the provision of Section 465 Cr. P.C., unless error, omission or irregularity has also caused the failure of justice and in determining the fact whether there is a failure of justice the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings. But even applying the very same principles it is seen that in fact the appellant was in fact prejudiced because of the non- production of the records from the police."

24. That being so, the Section 210(2) of the Cr.P.C. in consonance with the judicial pronouncement as referred hereinabove coupled with Section 223 of the Cr.P.C. may be considered as an affirmation relating to conjoint trial or by way of clubbing in terms of Section 223 of the Cr.P.C.

25. Now, coming to facts of the case, as stated above, while the Complaint Case No.1408C of 1999 was filed, no police case was there, while inquiry under Section 202 Cr.P.C. was going on, after examination of the some of the witnesses, the police case was filed and it is evident that before taking of cognizance vide order dated 30.04.2004 relating to Complaint Case No.1408C of 1999, cognizance relating to Begusarai Rail P.S. Case No.02 of 2003 had already been taken. Though, in both the cases, the cognizance of an offence against the accused was already taken and further, at that very moment, on account of paucity of information, no steps in terms of Section 210 of the Cr.P.C. was taken up, but the subsequent eventualities would not nullify or erase the legality of the order of the cognizance having taken in connection with Complaint Case No.1408C of 1999. Furthermore, till then, the police case had already committed to the Court of Sessions and in the aforesaid background, for proper application of Section 210(2) of the Cr.P.C., the Complaint Case No.1408C of 1999 would have been committed to the Court of Sessions, which could not be on account of absence of accused. Furthermore, once two of the accused persons, in execution of warrant of arrest non-bailable was already apprehended and produced before the Court relating to Complaint Case No.1408C of 1999, then in that event, the learned lower Court was not at all legally permitted to release the accused at one end and at the other staying the proceeding in terms of Section 210 of the Cr.P.C., till appearance was completed. In likewise manner, vide order dated 01.07.2005 whereby the learned lower Court had simply directed the complaint case to be placed before the Competent Sessions Court where the police case was pending was also illegal in the background of the fact that neither it was in terms of Section 209 Cr.P.C. nor Section 323 Cr.P.C. and vertually by such action made the Court of Sessions crippled as in the background of aforesaid deficiency, the Sessions Court was not at all competent enough to exercise his jurisdiction in terms of Section 193 Cr.P.C. Furthermore, by such activity, the learned Chief Judicial Magistrate had frustrated application of Section 210(2) of the Cr.P.C.