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May-June 2013 The petitioners moved applications, seeking their discharge under Section 239 of the CrPC. Respondent no.2 herein moved an application under Section 210 Cr.P.C 25.11.2013 The learned CMM, proceeded to dispose of the two applications, i.e. an application seeking discharge under Section 239 of the Cr.PC filed by the petitioners and another application under Section 210(1) of the Cr.PC preferred by the respondent no. 2, and both the matters i.e. FIR No.228/2010 & CC No. 725/1/10 were directed to be proceeded further as a warrant trial case instituted otherwise than on a police report i.e. like a complaint case u/s 23 of the PC & PNDT Act.

14. The next issue before this Court is that if the cognizance in the chargesheet/police report is bad in law, then could the said chargesheet/police report be clubbed with the complaint filed on behalf of respondent no. 2 under Section 210 or Section 202 of the CrPC? Although the application under Section 210 of the CrPC filed on behalf of respondent no. 2 was not allowed by the learned CMM and the learned ASJ, this aspect has to be considered before dealing with the provision of Section 202 of the CrPC under which the chargesheet/police report has been clubbed with the complaint case filed by respondent no. 2, by the learned CMM and subsequently upheld by the learned ASJ.

38. Learned CMM has not referred to the law by which complaint under Section 13(3) of Act and Section 173 of Cr.P.C. were liable to be clubbed together. However, it may be that the learned CMM had the provisions of Section 210 Cr.P.C. in her mind.
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40. Provisions of Section 210 Cr.P.C. would have no applicability to the trial of offences under the Act. Under Section 13(3) of the Act reproduced above, no court can take cognizance of an offence under the Act unless upon complaint made by order of, or under authority from appropriate Government or some officer empowered by the appropriate Government in this behalf.‖

18. In view of the above, for the purposes of proceedings under Section 210 of the CrPC, so far as clubbing of police report and complaint is concerned, cognizance of an offence of a report under Section 173 of the CrPC is mandatory. Section 210(2) of the CrPC clearly stipulates that the Magistrate shall try together the complaint case and the case arising out of the CRL.M.C. 3566/2014 and connected matter police report only if the cognizance had been taken by the learned Magistrate on such report. In the present case as pointed out hereinabove, the cognizance could not have been taken in view of the Section 28(1)(a) of the PCPNDT Act and, in absence of any cognizance the clubbing of the police report and the complaint is not permissible under Section 210 of the CrPC.