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Whether the second respondent can seek the relief under Section 210 Cr.P.C., in view of peculiar facts and circumstances of the case

96. The predominant contention of learned counsel for the second respondent is that the second respondent filed the complaint seeking relief under Section 210 Cr.P.C., and therefore, the learned Special Judge ought to have followed the procedure as contemplated under Section 210 Cr.P.C. The learned senior counsel for the petitioner strenuously submitted that the relief sought by the second respondent is misconceived. He further submitted that the very purpose of Section 210 Cr.P.C., is to protect the interest of the accused and not of the complainant. He also submitted that in view of the relief sought by the second respondent, the complaint itself is not maintainable. The learned standing counsel for the first respondent submitted that ultimately the learned Special Judge has to take a decision either to resort to Section 156(3) Cr.P.C., or to Section 210 Cr.P.C.

The decision in Namathoti Sankaramma v State of A.P. also deals with the scope of Section 210 Cr.P.C.

98. The learned counsel for the second respondent, in support of the contention, has placed reliance on para 14 of the decision in Dilawar Singh, which reads as follows:

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. 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.

103. Admittedly, the petitioner is not an accused in the Crime. A.1 to A.3 and A5 in the Crime are not parties to the complaint. The learned Special Judge has not examined the complainant and witnesses on his behalf as postulated under Section 200 Cr.P.C. The learned Special Judge has not taken the cognizance of offence under clause (a) of Sub-section (1) of Section 190 Cr.P.C. It is not the case of the second respondent that the learned Special Judge, while conducting enquiry under Section 202 Cr.P.C., came to know about the pendency of investigation in the Crime. Even assuming, but not conceding, that the learned Special Judge has taken cognizance of offence basing on the complaint, the conditions stipulated in Sub-section (2) of Section 210 Cr.P.C., are not fulfilled in this case. The learned Special Judge has no power whatsoever to proceed under Section 210 Cr.P.C., without staying the proceedings in the complaint. Section 210(3) Cr.P.C., applies in two situations: (1) where the police report does not relate to any accused in the complaint case; or (2) if the Magistrate does not take cognizance of offence on the police report at all. Even the conditions enumerated in Sub-section (3) of Section 210 Cr.P.C., are also not satisfied in this case.

104. Having regard to the facts and circumstances of the case and the principle enunciated in the cases cited supra, I am of the considered view that the second respondent, as a matter of right, is not entitled to seek the relief under Section 210 Cr.P.C., for the following reasons:

a) When the Special Court has not taken the cognizance of offence basing on the complaint, neither conducted an enquiry under Section 202(2) Cr.P.C., nor stayed the proceedings under Section 210(1) Cr.P.C., seeking of relief under Section 210 Cr.P.C., by the second respondent is like engaging a Priest to prepare horoscope of an unborn child.