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Showing contexts for: section 210 cr.pc in Biju vs P.K. Ayyappan on 19 June, 2025Matching Fragments
11. I will first deal with the challenge on the ground of non compliance with Section 210 of Cr.P.C. Section 210 of the Cr.P.C (Section 233 of BNSS) outlines the procedure to be followed when there is a complaint case and a police investigation in respect of the same offence. This procedure ensures that both processes do not run in parallel, avoiding 2025:KER:43956 duplication and potential conflicting decisions. It also obviates anomalies which might arise from taking cognizance of the same offence more than once. The Section reads thus:
12. As per the provisions extracted above, when in a case instituted otherwise than on a police report, i.e in a 2025:KER:43956 complaint case, during the inquiry or trial held by the Magistrate, it appears to the Magistrate that the investigation by the police is in progress concerning 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. It further provides that, if a report is made by the investigating police officer under Section 173 of Cr.P.C (Section 193 of BNSS) 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. It also provides that 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, following the provisions of this Cr.P.C/BNSS. Thus, it is incumbent upon the Magistrate under Section 210(2) of Cr.P.C (Section 233(2) of BNSS) to try together the complaint case and the case arising out of the police report as if both the cases were instituted on a police 2025:KER:43956 report if a report is made by the investigating police officer under Section 173 of Cr.P.C (Section 193 of BNSS) and on such report cognizance of any offence is taken by the Magistrate against any person who is an accused in the complaint case. To be more precise, if a police report has been submitted and a complaint has been filed in respect of the same offence, then, under sub-section (2) of Section 210 of the Cr.P.C., (Section 233 (2) of BNSS) the Magistrate is under an obligation to try both cases together. It is settled that, though the expression used in sub-section (1) of Section 210 of Cr.P.C (Section 233 (1) of BNSS) is "offence", the same has to be understood as the occurrence or transaction in which the offence has been committed and not the very same offence. (See. Joseph Freeman Motha (Dr.) & Another v. Sudha Vijayan & Another, 2020 (5) KHC 169).
14. The learned counsel for the 1 st respondent submitted that since two or more accused are involved in the complaint case, the provisions of Section 210 of Cr.P.C (Section 233 of BNSS) are not attracted. I cannot subscribe to the said argument. One of the ingredients of sub-section (1) of Section 210 of Cr. P.C (Section 233 (1) of BNSS) is that incident/occurrence inquired into or tried by the Magistrate in the complaint case should also be under police investigation. Here, the incident in both cases is one and the same. The offences involved in both cases are under Sections 324 and 326, read with Section 34 of the IPC. Once the criteria laid down in sub-section (1) of Section 210 of Cr.P.C (Section 233 (1) of BNSS) is satisfied, then if the Magistrate takes 2025:KER:43956 cognizance of "any offence" against "any person who is accused in the complaint case", based on the police report, it is the duty of the Magistrate under sub-section (2) to try the two cases together as if they were instituted on a police report. This would be satisfied even if cognizance of the offence is taken against only one of the persons accused in the complaint case. If both ingredients are satisfied, the procedure to be followed is as if both cases were instituted on a police report. In short, for clubbing the two cases for trial it is enough that congnizance is taken by the Magistrate of any offence against any accused in the complaint case in the report of the police who investigated the occurrence which led to the complaint case. It is not necessary that all the offences and all the accused in the complaint case and the police case should be the same. The ingredients of sub-section (3) are couched in the negative. The expression "the police report does not relate to any accused in the complaint case' used in sub-section (3) means that none of the accused in the complaint case is the subject-matter of the police report. Similarly, the expression "does not take cognizance of any offence on the police report" means that cognizance of no offence is taken. It is only when the conditions laid down in sub-section (3) are satisfied that the 2025:KER:43956 two cases have to be tried according to the separate procedure laid down for each of them. Sub-section (3) also shows that as long as the police report relates to one of the accused mentioned in the complaint case and the Magistrate takes cognizance of an offence based on the police report, the case will fall under sub-section (2) and the procedure mentioned therein will have to be strictly followed.
15. Here, the offences involved in the complaint case and the police case are under Sections 324 and 326, read with Section 34 of the IPC. The incident in both cases is also one and the same. All three accused in the police case are also accused in the complaint case. Hence, Section 210 of Cr. P.C (Section 233 of BNSS) is squarely attracted, and the trial court ought to have tried the two cases together as if they were instituted on a police report as contemplated under sub-section (2). The provisions of Section 210 of Cr.P.C (Section 233 of BNSS) are mandatory. But the non compliance thereof would not ipso facto vitiate the conviction in view of the provisions of Section 465 of Cr.P.C (Section 511 of BNSS). However, if the non compliance with the provisions of Section 210 of Cr.P.C (Section 233 of BNSS) has caused prejudice to the accused and a failure 2025:KER:43956 of justice has been occasioned thereby, the entire trial and conviction would be vitiated [see Dilawar Singh v. State of Delhi, (2008) 3 Supreme Court Cases (Cri) 330]. Taking into account the entire facts and circumstances of the case, it appears to me that serious prejudice has been caused to the petitioner, resulting in failure of justice on account of the failure on the part of the trial court to follow the procedure laid down in sub-section (2) of Section 210 of Cr.P.C (Section 233 (2) of BNSS)