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14. However, under Sub-section (2) of Section 210 of Cr.P.C., the word 'offence' appears to have been used to indicate a particular transgression labelled as a particular offence under IPC or any other law. It is obvious from the fact that normally when the Court takes cognizance of an offence, it does not refer to taking cognizance of the whole incident in which offences are committed but to particular violations, which have been defined as specific offences. Inasmuch as the object of the provision appears to be as stated above to avoid enquiries or trials sought to be initiated on two different footings, namely, the complaint and the police report on parallel tracks leading to conflicting results, obviously it is the commonality of the incident which are the subject matters of the complaint and the first information report under investigation by the police and not the labels of a particular transgression of law affixed by the complainant in the complaint or in the first information report which, if it were not so, the provisions of Section 210 of Cr.P.C. can be evaded by a mere device of labelling the transaction with different offences. As stated above in this case, the stage of staying the proceedings in the complaint case under Sub-section (1) of Section 210 of Cr.P.C., has passed and the stage for calling for a report from the police has also been passed inasmuch as the police report under Section 173 of Cr.P.C. has been filed already. The provision in Sub-section (1) of Section 210 of Cr.P.C. has been made as stated above for preventing parallel enquiries or trials. Where a question as to application of the provisions under Section 210 of Cr.P.C. arises at certain stage of enquiry in the complaint case or after the report under Section 173 of Cr.P.C. has been filed by the police, it cannot be said that because the stage for invoking Sub-section (1) of Section 210 of Cr.P.C. has crossed, the other provisions under it are not applicable.

19. The learned Public Prosecutor however contends that Inasmuch as no stay was ordered as contemplated under Section 210(1) of Cr.P.C., in the enquiry into the complaint case, the provisions of Section 210(2) of Cr.P.C. are not attracted. In support of this contention he relies on a decision of the Patna High Court in Ram Chandra Prasad v. Ram Saran Sharma 1979 Cri LJ NOC 198 wherein the learned Judge opined that existence of an order under Section 210(1) of Cr.P.C. With great respect, I am unable to agree with this view. A careful reading of the provisions in Section 210 of Cr.P.C., would indicate that Sub-section (1) has been enacted to give effect to the provisions of Section 210 effectively at the earliest when the matter of possibility of two parallel enquiries is brought to the notice of the Court by staying enquiry or trial in the complaint case. Thus, what is contemplated under Section 210(1) is to ensure that the purpose for which sub-sections (2) and (3) are enacted is not defeated. But it cannot be postulated that the provisions of Section 210(2) Cr.P.C., cannot be invoked or applied unless the enquiry in the complaint case has been stayed under Sub-section (1) of Section 210 of Cr.P.C. This is the view taken by the Kerala High Court in Joseph's case, (1982 Cri LJ 595) (supra).

20. In Chintamani Parida v. Jadumani 1981 Cri LJ 541 a learned single Judge of the Orissa High Court has taken a view that where on the basis of a police report cognizance has been taken in respect of some of the accused, then the complaint must be deemed to be a police report in regard to accused persons who are common to both the cases under Section 210(2) of Cr.P.C. and on that basis it has been held that those accused persons not involved in police case can be proceeded against under Section 210(3) of Cr.P.C. It has been seen above that commonality of all the accused is not required for application of Section 210(2) of Cr.P.C. Where cognizance has been taken on the basis of a police report in respect of some offence against some accused who are common to the police report and the complaint case, the requirements of Section 210(2) Cr.P.C. must be deemed to have been satisfied. With great respect, I am unable to agree with the view taken by the Orissa High Court that where all the accused are not common, in respect of other accused Section 210(3) Cr.P.C. applies.

The learned Magistrate further observed that as the offence under Section 306 IPC is exclusively triable by a Court of Session, he is committing the case to the Court of Sessions.

24. The grievance of the learned counsel for the petitioner is that though by stating that he has merged the complaint case with the police report case, the learned Magistrate expressed himself to have acted under Section 210(2) of Cr.P.C., but in fact the purpose and the object of the provisions of Section 210(2) Cr.P.C., has been defeated. The contention of the learned counsel for the petitioner is that as explicitly stated in paragraph 4 of the committal order, the learned Magistrate on the basis of the complaint and the enquiry conducted therein under Section 202 of Cr.P.C., has taken cognizance of offences under Section 302 read with Section 109 IPC and Sections 302 read with Section 120-B of IPC against A.1 to A.7. But the learned Magistrate has committed the case indicating an offence under Section 306 IPC and deleting the offence under Section 302 IPC. It is obvious from the committal order passed by the learned Magistrate that he has failed to carry out the mandate and the spirit of Section 210(2) Cr.P.C. What Section 210(2) contemplates where the requirement as to its application are satisfied is that the Magistrate would enquire into the case arising out of police report and the complaint case 'together' as if both the cases were instituted on a police report. This provision mandates that the Magistrate shall enquire into these two cases simultaneously, in conjunction with each other i.e., at the same time one with the order. The word 'merge' used by the learned Magistrate does not carry the true meaning of the requirement of 'enquiring together'. The law does not contemplate that the complaint case is effaced from the scene or the material available in the complaint case would evaporate into thin air. The committal order would disclose that the learned Magistrate proceeded on ' the assumption that there was no complaint case at all. Though he purported to merge the two, in fact he has ignored the existence of the complaint case altogether. There is no reference to the offence under Section 302 IPC in respect of which he has taken cognizance in the complaint case. There is no , reference to material available in the complaint case, which was brought on record during enquiry under Section 202 of Cr.P.C. The learned Magistrate proceeded on the basis that the only material he was required to consider was the one available in the case instituted on the police report. He over-I looked the requirement to consider the material available in complaint case as if it was material in the police report. This manifestly militates against the law enacted in Section 210(2) of Cr.P.C.