Ramchandra Prasad v. Ram Sharan Sharma — 1978 DIGILAW 89 (PAT)

SHIVANUGRAH NARAIN, J. On 19th October 1974, opposite Party No.1 Ram Saran Sharma filed a complaint before the sub-divisional Judicial Magistrate, Sitamarhi, complaining that Satindra Lal Karna, Block Development officer, Bajpatti Block, within the jurisdiction of Pupri Police station, in the district of Sitamarhi and, the petitioner Ram Chandra Prasad, the thin Nazir in the Bajpatti Block office, had jointly committed offences punishable under sections 403, 409, 420, 504 and 506 penal Code. It was alleged In the petition of complaint that payment of salary of some teachers employed. In the schools in Bajpatti Block used to be made by the Block Development officer through the Head Masters of those schools or their representatives: that is required by the Block Development officer the aforesaid Sri Karna, the complainant Ram Saran Sharma along with others came to the Bajpatti Block office on 16.10.1974 to receive payment of their arrear salaries; that only a few teachers received payment on that date and the complainant and others were asked to come the next day at 11 A.M. that the complainant and other teachers accordingly came to the Block Office on 17.10.1974 at 11 A.M. but Ram Chandra Prasad the Nazir of the Block was absent: that the Nazir came to the Block Office only In the evening of 17.10.1974 and asked the complainant and other teachers to come again on 19.10.1974 to receive payment: that this annoyed the harassed teachers and they upbraided the Nazir for the aforesaid and then at their clamour, the accused the petitioner in the present case agreed to make payment and suggested that on order to expedite payment all of them should first put their signatures on the acquaintance roll in taken of payment and that they should come one by one and receive payment. The further allegation in the petition of complainant was that in s accordance with the aforesaid suggestion the complainant and the other teachers who were present started putting their signatures on the acquaintance roll and in the meantime the accused Block Development officer arrived and started abusing the teachers present nor their raising hulla near the Block Office and threatened them and said that in any event payment would be made at his sweet will. It was further alleged in the petition of complaint that the accused Block Development Officer ordered the accused Nazir to stop payment and the armed forces to arrest the teachers, beat them up and to send them to jail and but for the restraint exercised by the teachers there could Dot have been a severe riot. The teachers, it was further alleged, requested the authorities to make payment at least to those teachers whose signatures had been obtained in token of receipt of the pay. Upon this, it is alleged, the Block Development officer said that now that they had signed there was proof of payment to them and that the money bad become theirs and payment need not be made and that he would take care of what they did. The Block Development Officer is further reported to have said that if the teachers protested too much they would be sent to jail on false charges. It was further stated in the complaint that therefore, the teachers went away with tae intention of taking legal and departmental steps in the matter and that because it was already too late in the night 40-50 teachers made overnight halt at Madhuban Middle school near by. Thereafter in order to cover up their misdeeds the accused Block Development Officer as well as the Nazir it is stated got a false case instituted before the Pupri police and with the help of the police the teachers staying in the said Middle school were removed there from and three of then were arrested. 2. On 21.10.1974 when the petition of complaint was as prayed for put up before the learned Sub-divisional judicial Magistrate the case was adjourned to 29.10.1974 on which date opposite party no. 1 Ram Saran Sharma was examined on solemn affirmation. In the solemn affirmation, the complainant supported the allegations in his petition of complaint and clarified that ho had also signed on the acquaintance roll in token of receipt of Ra. 2,053/the pay due to him and the Assistant teachers of his School. After examing the complainant opposite party No.1 on solemn affirmation the learned Sub-divisional Judicial Magistrate sent the case to the officer Incharge, Pupri police station for enquiry and report. 2,053/the pay due to him and the Assistant teachers of his School. After examing the complainant opposite party No.1 on solemn affirmation the learned Sub-divisional Judicial Magistrate sent the case to the officer Incharge, Pupri police station for enquiry and report. It appears that the Enquiring officer reported that a prima facie case for offences under section 420 and 409 Penal Code only bad been made out and that only against the petitioner Ram Chandra Prasad, the Block Nazir. After hearing the complainant and perusing the enquiry report the learned sub-divisional judicial Magistrate took cognizance of the case for offences under sections 420 and 409 penal code only against the petitioner Ram Chandra Prasad and transferred the same to the court of Sri U. P. Sinha, Judicial Magistrate, 1st class, Sitamarhi for disposal and also directed issue of summons to the accused Nazir. On filing the copy of the complaint petition on 13.2.1975 summonses were issued to the accused Nazir. 3. In the meantime on 5.12.1974 Sri, Karna, Block Development officer, Bajpatti sent a written report dated 4.12.1974 to the officer-in charge, Pupri police station alleging that the petitioner Ram Chandra Prasad, the Nazir in his office had on 16.10.1974 encashed the draft for paying salaries to the Primary and middle school teachers of the Block, but he had made payments any' to some of the teachers and had not made payment of a sum of Rs. 5,485/which included the sum of Rs. 2,053/payable on account of the salaries of the Head Master and other teachers of Bhasepur Middle school even though the opposite party No.1 had obtained the signature of the Head Master or the representative of the Head Master of the schools in token of receipt of the aforesaid amounts and further admitted not to have made payments to them even after having obtained their signatures in token of payment and is spite of demands had not returned the said amount. It was also alleged that though asked to make over charge he had omitted to do in full and from the incomplete examination of the registers it appeared that he had embezzled the further sum of Rs. 893. 11 P. and complete examination might reveal further embezzlement. The Puprid police registered a case on the basis of the written report of the Block Development officer and after completing investigation submitted charge-sheet in the case. 4. 893. 11 P. and complete examination might reveal further embezzlement. The Puprid police registered a case on the basis of the written report of the Block Development officer and after completing investigation submitted charge-sheet in the case. 4. The charge-sheet was put up before the Sub-divisional Judicial Magistrate, Sitamarhi on 27.1.1975 and on 27.1.1975 the learned Sub-divisional Judicial Magistrate took cognizance of this case against the petitioner Nazir also for the offences under sections 420 and 409 Penal Code and transferred the case to the same Magistrate Sri U. P. Sinha for disposal. The accused Nazir petitioner in this Court filed a petition stating that as both the complaint and the police case relate to the same offence cognizance in both of them has been taken they ought to be together in view of the provisions of section 210 (2) Cr. P. C. and, therefore, both the complaint case and the police case be amalgamated. This petition was put up before the trying Magistrate on 12.5.1975 and it was ordered to be put up on 21.6.1975. On 21.6.1975 it was observed in the ordersheet of that date that cognizance appears to have been taken against only one person and the case has been adjourned to 8.6.1975 and thereafter the case continued to be adjourned from date to date. On 13.9.1975 an order to issue summons against the other accused who was absent was passed and the order was repeated from time to time. It was repeated on 10.4.1976 on which date the petition regarding amalgamation was heard. I should have mentioned that on the petition of complaint, complaint case No.C/l/323/74, Tr. no. 449/76 and on the first information report G.R. : 02/74, tr.317/77 had been started. By his order dated 24.4.1976 the learned Magistrate after stating the (acts passed the following order which translated into English runs thus; "It appears from the petition containing allegations in C.R. No.502/74 that the accused bad not made payments of the salaries of teachers of three schools even after having obtained receipts in token of payment on the acquittance roll from their representative teachers. The sum involved is stated to be Rs. 5.485. 00 Complaint case no. C/l/323/74 is also concerned with this amount. In G. R. No. 502/74 a further Sum of Rs. 831.11 is alleged to have been misappropriated. The sum involved is stated to be Rs. 5.485. 00 Complaint case no. C/l/323/74 is also concerned with this amount. In G. R. No. 502/74 a further Sum of Rs. 831.11 is alleged to have been misappropriated. It is therefore, clear that allegation of cheating and criminal misappropriation in respect of a sum of Rs. 5, 485/ is common to both the cases. Besides, this, a sum of Rs. 893.11 is alleged to have been criminally misappropriated in G.R.No. 502/74 It is, therefore, manifest that trial of C/l/323/74. Included with the trial of G R.No.502/74. It is, therefore, ordered that the records of this case be amalgamated with the record!! of G.R. No. -502/74. This is proper in the Interest of the accused as well as in the interest of justice and equity. There is also no legal impediment in it. 5. The complainant opposite party moved the Sessions Judge, Sitamarhi against the aforesaid order of the learned Magistrate ordering amalgamation of the two cases and by his order dated 31.5.1977 passed in Criminal Revision No. 77/95 of 1976/77, the learned Sessions Judge, Sitamarhi set aside the order amalgamating the two cases and directed that the two cases would proceed separately, but be tried in the same court. The accused Nazir Ram Chandra Prasad has now come up in revision in this Court against the aforesaid order of the learned Sessions Judge. 6. Mr. K.P. Verma, - the learned Advocate for the petitioner has urged two points in support of this application. His first contention is that the order of the learned Magistrate directing amalgamation was an interlocutory order and, therefore, in view of the provisions of section 397 (2) of the Code of Criminal Procedure 1973, hereinafter called the 'Code', no revision Jay against the said Order and the impugned order of the learned Sessions Judge was without jurisdiction. The expression 'inter locutory order' occurring in sub-section (2) of section 397 of the Code has been subject of authoritative decision by the Supreme Court in several decisions. The expression 'inter locutory order' occurring in sub-section (2) of section 397 of the Code has been subject of authoritative decision by the Supreme Court in several decisions. Referring to the use of the expression 'interlocutory order in section 397 of the Code, Untwalia, J. speaking for the Supreme Court in Madhu Limaye v. State of Maharashtra observed; "the real intention of the legislature was not to equate the expression interlocutory order" as invariably being converse of the words "final order" There may be order passed during the course of a proceeding which may not be final in the sense noticed in Kuppuswami's case (A.I.R. 1949 FC 1) (supra), but, yet it may not' be an interlocutory order/pure or simple. Some kinds of order may fall in between the two. By a rule of harmonious construction, we think that the bar in sub s. (2) of S.397 is not meant to be attracted to such kinds of intermediate order (at page 53 of the report). In Amar Nath V. State of Haryana the Supreme Court, speaking through Fazal Ali, J., laid down "It seems to us that the term "interlocutory order" in S. 397 (2) of the 1973 Code has been used in a restricted sense and not in any broad or artistic sense. It merely denotes orders of a purely interim or temporary nature which do not decide or touch the important rights or the liabilities of the parties. Any order which substantially affects the rights of the accused, or decides certain rights of the parties cannot be said to be an interlocutory order so as to bar a revision to the High Court against that order, because that would be against the very object which formed the basis for insertion of this particular provision in S. 397 of the 1973 Code. Thus, for instance, orders summoning witnesses, adjourning cases, passing orders for bail, calling for reports, and such other steps in aid of the pending proceeding may no doubt amount to interlocutory orders against which no revision would lie under section 397 (2) of ... 1973 Code. But orders which are matters of moment and which affect or adjudicate the rights of the accused or a particular aspect of the trial cannot be said to be interlocutory order so as to be outside the purview of the revisional jurisdiction of the High Court at page 2189). 1973 Code. But orders which are matters of moment and which affect or adjudicate the rights of the accused or a particular aspect of the trial cannot be said to be interlocutory order so as to be outside the purview of the revisional jurisdiction of the High Court at page 2189). Further in Parmeshwari Devi v. State the Supreme Court be ld that an order made in a criminal proceeding against a person who is not a party to the inquiry or trial and which had adversely affected him is not an interlocutory order within the meaning of section 397 (2) and observed "It may thus be conclusive with reference to the state at which It is made and it may also be conclusive as to a person who is not a party to the inquiry or trial against whom it is directed". 7. It is thus manifest that merely because the proceedings are not finally disposed of the order may not be regarded as an interlocutory order within the meaning of Section 397 (2) of the Code and that only order which are merely steps in aid of the pending proceeding and do not substantially affect or decide the rights of the parties can be said to be interlocutory orders. Now by the impugned order the learned Magistrate had amalgamated the complaint case filled by the opposite party complainant with1he G. R. Case instituted upon the first information report lodged by the Block! Development officer who was one of the persons complained against in the petition of complaint filed by the opposite party Ram Saran Sharma. The effect of such an order of amalgamation has been laid down by a Full Bench of this Court in Mukteshwar v. Ramkewal as follows: "The effect of the order of amalgamation, therefore, is that the complaint case was merged with the police case. There was no separate evidence to be adduced in the complaint case and, therefore all that is signified by the older of amalgamation is that the result of the complaint case was to be the same as that the police case. There was no separate evidence to be adduced in the complaint case and, therefore all that is signified by the older of amalgamation is that the result of the complaint case was to be the same as that the police case. In other words, the complaint case lost its identity and separate existence as it merged with the police case which retained its identity" (at page 28) Thus, as a result of the order the complain case instituted upon the petition of complaint filed by the complainant opposite party lost its identity and separate existence and no separate evidence could be adduced in the complaint case. Now this vitally affected the complainant who was one of the parties in that case even though Mr. Verma may be right in contending that the complaint case was not finally disposed of, but continued in and as a part of the police case. By the complaint case the complainant sought to proceed against the Block Development Sri Karna as well as the accused Nazir the petitioner before the court, even it be assumed that the order of the learned Magistrate issuing summons to the other accused in the complaint case be ignored as having been passed due to inadvertence. I do not say it would be proper to ignore it and, by the aforesaid order of amalgamation the case against the second accused was completely disposed of on account of the complaint case ceasing to have a separate identity. It cannot be doubted that the order affected the right. of the complainant to prosecute the case against the persons made accused and to adduce evidence and to approach the court after evidence was led to issue summons against the Block1 Development officer accused also in accordance with the provisions of section 319 of the Code. After the order of amalgamation, the State became the sole prosecutor and, there fore, the person in charge of the prosecution of the case. The person who had the duty or the right to decide what evidence to adduce in the case. As no evidence could now be adduced by the complainants in the instant case, there was new no real chance of evidence being available on the basis or which the Block Development officer could be summoned to stand his trial. After the amalgamation it would be a case instituted on a police report. As no evidence could now be adduced by the complainants in the instant case, there was new no real chance of evidence being available on the basis or which the Block Development officer could be summoned to stand his trial. After the amalgamation it would be a case instituted on a police report. As pointed out by Mudholkar. J. in Thakur Ram v. Stare of Bihar "in a case which has proceeded on a police report a private party has really no locus standi" (at page 917). I have already stated the allegations in the petition or complaint in detail. In the police case there is no allegation against the Block Development officer at ail and there is no real chance or any evidence being led in support of the complaint case that the Block Development officer had threatened the complainant and other teachers or had directed non-payment or had said that there was proof of the payment and, therefore, no payment need be made to the teachers who bad signed In token of receipt of the payment even though they bad not received payment. The impugned order, therefore, belongs to the category of the orders which to use the words in Amar Nath's case, referred to above, are matters of moment and which affect or adjudicate the rights of the accused or a particular aspect of the trial. The order of amalgamation passed by the learned Magistrate cannot therefore, be said to be an Interlocutory order. Sri Verma contends that the order passed was merely a step in aid of the pending proceeding and bad regulated, for the procedure only. True, it does regulate the procedures, for the procedure prescribed for a case instituted upon a police report would have to be followed. But it does some thing more. It affects the right of the complainant, it affects the liability of one of the persons complained against, namely, the Block Development officer, Sri Karna. This contention of Sri Verma must, therefore, fail. 8. Mr. Verma next contends that the learned Sessions Judge acted illegally in setting aside the order of amalgamation. New this Court is asked to interfere with the order of the learned Sessions Judge in the exercise of the revisional jurisdiction of the Court. This contention of Sri Verma must, therefore, fail. 8. Mr. Verma next contends that the learned Sessions Judge acted illegally in setting aside the order of amalgamation. New this Court is asked to interfere with the order of the learned Sessions Judge in the exercise of the revisional jurisdiction of the Court. Speaking about the jurisdiction of the High Court In section 439 of the Code of Criminal Procedure, 1898 which correspond to section 401 of the present cede, the Supreme Court in D. C. & O. Mills v. Shambhu Nath observed the jurisdiction under section 439 is to be exercised only in exceptional case where there is a glaring defect in the procedure or there is a manifest error of point of law and consequently there has been a fingrant miscarriage of justice. Obviously, there was no glaring defect in the procedure followed by the learned Sessions Judge and so this Court can interfere with the order only if the order Is vitiated by a manifest error on a point of law and has resulted in miscarriage of justice. I am unable to hold that the learned Additional Sessions Judge has committed any manifest error on a point of law. 9. Sri Verma contends that the order of the learned Sessions Judge directing the two cases to be tried separately violates the mandatory provisions of section 210 (2) of the code which in a case like the present directs that "the Magistrate shall Inquire into or try together the complaint case and the case arising out of the police report," Section 210 of the code runs thus: "210 (1) When in a case instituted otherwise that on a police report (hereinafter referred to as a complaint case), it is made to appear to the Magistrate, during the course of the inquiry or trial held by him, that an investigation by the police is in progress in relation to 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. (2) If a report is made by tile investigating police officer under section 173 and on such report cognizance of any offence is taken by the Magistrate against any person who is an accused in tit, 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. (3) 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, In accordance with the provisions of this Code. It is, therefore, clear that sub -section (1) directs the Magistrate to stay the inquiry or trial of a complaint case when it is made to appear to the Magistrate that an investigation by the police is in progress in relation to the offence which is the subject matter of the enquiry or trial being held by him and imposes upon him a duty to call for a report from the police officer conducting the Investigation. Sub-sections (2) and (3) lay down the course to be followed by him after the police report called for by him is received. Sub-section (2) requires him to try together the complaint case and the case arising out of the police report if a report is made by the Investigating officer under section 173 and on such report cognizance is taken by the Magistrate against any person who is accused in the complaint case. Sub-section (3) commands him to proceed with the inquiry or trial which was stayed under subsection (1) if the police report does not relate to any accused in the complaint case or if the Magistrate does not take cognizance for any offence on the police report. It is crystal clear that the course laid down in sub-section (3) can be followed by him only if a Magistrate had passed an order under the sub-section staying inquiry or trial of the complaint case. The context in which sub-section (2) occurs and the use of the definite article in the complaint case, In my opinion, make It equally clear that the order under sub-section (2) can only be made In respect of the complaint case. The context in which sub-section (2) occurs and the use of the definite article in the complaint case, In my opinion, make It equally clear that the order under sub-section (2) can only be made In respect of the complaint case. The inquiry or trial which was stayed under sub-section (1) of section 210. Or in other words the existence of an order under sub-section (1) staying its enquiry or trial is a condition precedent to the trial of the complaint cue along with the case instituted upon the police report under the procedure prescribed by sub• section (2). In the present case, admittedly no order staying the trial or inquiry of the complaint case has been passed. The provisions of sub-section (2) of section 210 were therefore not applicable. 10. Further even if it were to be held that the procedure prescribed by sub-section (2)of Section 210 would apply even in cases in which though there has been no order staying the proceedings of the inquiry or trial the complaint case was such which ought to have been stayed under Sub-Section(1) of Section 210. The present case instituted upon the complaint in my opinion, is not such a case in which the order under section 210(1) could have been passed. Before an order under Section 210(1) may be passed, the Magistrate must be satisfied that an investigation by the police is in progress in relation to the offence which is the subject matter of the inquiry or trial held by him. Though sub-Section (1) -does not clearly state the stay of the proceedings shall be ordered only when an investigation is in progress in relation to all the offences which is the subject matter of the inquiry or trial and not even cases whore the investigation by the police is in relation to some of the offences which is the subject matter of the inquiry or trial. In my opinion, the expression in relation to the offence which is the subject matter of the inquiry or trial, construed in accordance with the aims and object of the provision means in relation to the offence or to an the offences which are the subject matter of the inquiry or trial. The expression used is in relation to the offence and not in relation of anyone of the offences. The expression used is in relation to the offence and not in relation of anyone of the offences. The expression 'the offence' indicates that the offence which is the subject matter of the inquiry or trial and the offence which is the subject matter of the investigation should be identical. They are not identical if an investigation relates to only one offence while the Inquiry or trial relates to two or more offences. The plain literal meaning of the words used, therefore, supports the construction that the expression 'the offence' means the offence or all the offences and not the offence or any of the offences. A consideration of the alms and objects of the provision points to the same conclusion. The object under lying section 210 is that when the offences in the complaint case and the police case are identical, the identical offences should be tried together in course of one proceeding as otherwise there would be unnecessarily multiplicity of proceedings. If only one offence is the subject matter of the investigation of the police and two or more offences are alleged in the complaint case, the offences are not identical and different proceedings are not unnecessary fresh facts will have to be Inquired Into if a trial or Inquiry into an additional evidence bas to take place. If the construction that the expression the offence means the offence or any of the offences' were to be adopted it would clearly result In Injustice for a complainant would be deprived of his right to prosecute an offender for the offence and he would go unpunished because there is no police Investigation in respect of that offence. It is, therefore, manifest that only if the police Investigation Is in respect of all the offences which are being inquired into or tried by the Magistrate in a case instituted upon a complaint that the Magistrate is required by Sub-Section (1) to stay the proceeding in the case instituted upon a complaint. In the present case offences under section 504 and 506 were also alleged against one of the accused namely, Block! Development Officer. These offences was clearly not the subject matter of investigation by the police. Therefore, the case instituted upon the complaint was not liable to be stayed under sub-section (l). In the present case offences under section 504 and 506 were also alleged against one of the accused namely, Block! Development Officer. These offences was clearly not the subject matter of investigation by the police. Therefore, the case instituted upon the complaint was not liable to be stayed under sub-section (l). Even if the contention of the learned Advocate for the petitioner that the expression any person who is accused in a complaint case means even one person who is accused in the complaint case is accepted, a point on which I express no opinion, there has been therefore, no contravention of the provisions of subsection (2) of Section 210 of the Code by the learned Sessions Judge in passing the impugned order. 11. I must also refuse to interfere in revision because at any rate, there has not been any flagrant miscarriage of Justice. The learned Sessions Judge has directed that the two cases be tried by the same court and when they would be tried by the same court and common witnesses would be examined in the two case., It is only to be expected that the trial court would take up the two cases on the same day one after the other. No harassment will, therefore be caused to the accused petitioner. On the other hand, because of the order of a nalgam1tion there may be a miscarriage of justice inasmuch as the complainant would be deprived of an opportunity of establishing his case for offences under Sections 504, 506 and also the other offences committed by the Block Development Officer, Sri Karna. 12. In my opinion therefore, no case for interference in vision has been made out. I would, accordingly, dismiss the application. Application dismissed.