M. K. SHAH, J. ( 1 ) THIS Special Criminal Application is filed by original accused No. 6 and is directed against the three orders of committal passed by the learned Chief Judicial Magistrate First class Bhuj on 26th June 1978 against the respective accused to stand their trial for the offences under secs. 341 342 323 365 read with sec. 114 of the I. P. Code in the first case that is police case; for the offences under secs. 307 348 342 331 365 3677 368 325 326 read with secs 114 of the I. P. Code in the second case that is the case arising out of private complaint No. 1 of 1978 filed by the complainant Kasam Amad Bakali and for the offences under the very sections in the third case arising out of private complaint being case No. 2 of 1978 filed by complainant Babu Khimji Vaghri. ( 2 ) A few facts may be stated at the outset:an incident happened on 8-11-1977 in which as alleged by the prosecution complainants Kasam Amad Bakali and Babu Khimji and three other persons named Bhinji Jogi Mamad and Adbulla who were labourers were abducted to find out as to where Babu Khimji was on the previous Friday to get information from him with regard to gold and currency notes of lacs of rupees alleged to have been stolen. For this purpose severe beatings were given to Babu by slaps and fists on various parts of his body and he was threatened with killing. It is also alleged that beatings were also given to the said complainants by means of sticks on their footsoles and they were tied by means of ropes and severely beaten by sticks and other means of tortures were also applied. Information with regard to this incident was lodged with the police on 9 by Ravji Khimji Vaghri brother of Babu Khimji and police thereupon started investigation. ( 3 ) THE police started investigation against accused Nos. 2 and 6 who were specifically named in the first information report and while the investigation was pending on 9-1-1978 complainant Kasam Amad Bakali lodged His private complaint before the learned Judicial Magistrate First class being criminal case No. 1 of 1978 against 13 accused including accused Nos. ( 3 ) THE police started investigation against accused Nos. 2 and 6 who were specifically named in the first information report and while the investigation was pending on 9-1-1978 complainant Kasam Amad Bakali lodged His private complaint before the learned Judicial Magistrate First class being criminal case No. 1 of 1978 against 13 accused including accused Nos. 2 and 6 who were specifically named in the first information report before the police which had been earlier filed as aforesaid. On the very day complainant Babu Khimji Vaghri also filed his complaint against 15 accused which included the said 13 accused named by Kasam Amad Bakali in his complaint. . . . . . . . . . . . . . . . . . . . . . ( 4 ) IT may be noted at this stage that in view of the orders passed by the learned Magistrate under sec. 210 (i) of the Code for staying the said two complaint cases Nos. 1 and 2 of 1978 arising out of private complaint a letter was addressed on 12-1-1978 by the court of the Chief Judicial Magistrate First class to the P. S. I. in charge of the city police station Bhuj for making the required report and it appears that the officer concerned of the city police station made an endorsement on the back of the said letter on 28-1-1978 to the effect that in the police case the offences under secs. 341 342 323 332 read with sec 114 of the I. P. Code had been registered and the charge sheet was already submitted in court on 23-1-1978 which may be noted; and thereafter in all the three proceedings that is (i) the case arising out of police report being criminal case No. 160 of 1978 in which there were 12 accused; (2) the case arising out of private complaint Kasam Adam being criminal case No. 1 of 1978 in which there were 12 accused accused No. 13 having expired in the meanwhile and (3) the case arising out of private complaint of Babu Khimji being criminal case No. 2 of 1978 in which there were 15 accused (in fact 14 accused because accused No. 15 Bhagwanji Dalal had expired) the learned Magistrate passed the impugned orders of committing the cases to the court of Session. It may be noted at this stage that in the case arising out of police report the offence exclusively triable by the court of session as shown in the order of the committing Magistrate was under sec. 331 I. P. C. and in the remaining two private complaints the offences exclusively triable by the sessions court were under secs. 307 331 and 367 I. P. C. . . . . . . . . . . . . . . . . . . . . . ( 5 ) MR. Mankad the learned Advocate appearing for the petitioner contends that in the instant case the learned Magistrate has not followed the procedure prescribed in sec. 210 of the Code as also under secs. 200 202 2 and 207 and that the therefore the committal orders in all the three cases are bad and should be quashed. ( 6 ) SEC. 210 (1) provides thus" (1) When in a case instituted otherwise than 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. Mr. Mankads contention is that in the instant case so far as the two complaints are concerned after having passed an order of staying the proceedings and calling for a report on the matter from the police officer concerned the learned Magistrate was bound to wait for the report called for. In the instant case no such report as is envisaged by sec. 210 (1) was sent by the police and therefore the learned Magistrate once having stayed the proceedings cannot deal with the same and pass an order of committal. In may opinion this contention is based on a misreading of sub-sec. (1) of sec. 210 as also is disregard of a fact on record viz. that the report called for is already received and is on the record of the court. In may opinion this contention is based on a misreading of sub-sec. (1) of sec. 210 as also is disregard of a fact on record viz. that the report called for is already received and is on the record of the court. The purpose of staying the complaint case is to enable the learned Magistrate to have the benefit of the police report which would be submitted after the investigation of the police case. In the instant case as the endorsements dated 28-1-1978 from the police officer concerned in the said two complaints show it was reported to the learned Magistrate that on 23-1-1978 the police after having completed the investigation in the police case had submitted their report under sec. 173 of the Code. The learned Magistrate therefore cannot be said to be in error in dealing with the complaint cases after receiving this report. ( 7 ) AS sub-sec. (2) of sec. 210 provides" (2) If a report is made by the investigating police officer under sec. 173 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 would he thus seen that on receipt of the police report under sec. 173 in the police case in any event at least so far as the first 12 accused are concerned the learned Magistrate has to make an inquiry in or try the complaint cases together with the police case which he has done by passing the orders in all the three cases on the same day after hearing parties of all the three cases. But sub-sec. (3) provides" (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". Mr. Mankads contention therefore based on the provisions of sub-sec. (3) is that atleast so far as accused Nos. Mr. Mankads contention therefore based on the provisions of sub-sec. (3) is that atleast so far as accused Nos. 13 and 14 of complaint case No. 2 of 1978 are concerned the police report does not relate to the said two accused in the said complaint case and therefore the learned Magistrate should have proceeded with the said complaint case in accordance with the provisions of the Code. In the submission of Mr. Mankad in the first instance the learned Magistrate should have first of all on taking cognizance of the offences in the complaint examined the complainant on oath and witnesses present if any and after reducing the substance of such examination in writing should have got it signed by the complainant or witnesses and the learned Magistrate should have also signed the same as provided in sec. 200. ( 8 ) NOW in the instant case on going through the record it is manifest that these latterly mentioned requirements are substantially complied with by the learned Magistrate. On receiving the complaint he has examined the complainant on oath and the substance of his examination has been reduced in writing and the same has been signed by the complainant as also by the learned Magistrate. It is no bodys case that any witnesses were present in court and they were not examined. It is true examination of the complainant is not in elaborate terms and it may be argued that as recorded at the end of the examination this merely amounts to a verification of the complaint on oath. In my opinion the provisions are substantially complied with because this is not a mere verification of the contents but as the record shows the complainant was first put into the witness box was given oath was asked to give his name and thereafter substance of the statements made by him was recorded in writing and then signed by him as also the learned Magistrate with the remarks at the end that the complaint was verified on oath before the learned Magistrate. ( 9 ) MR. Mankad in this connection drew my attention to a decision of the Madras High Court in P. N. S. Aiyar v. K. J. Nathan A. I. R. 1948 Mad. 424 wherein it has been observed that"the examination of the complainant contemplated by sec. ( 9 ) MR. Mankad in this connection drew my attention to a decision of the Madras High Court in P. N. S. Aiyar v. K. J. Nathan A. I. R. 1948 Mad. 424 wherein it has been observed that"the examination of the complainant contemplated by sec. 200 signifies that the Magistrate ought to interrogate him on the allegations or averments contained in the complaint to test whether they are prima facie true or not. Where the contents of the complaint are admitted to be correct on solemn affirmation by the complainant it cannot be said that this is an examination of the complainant either on oath or otherwise". In the instant case as stated earlier what the learned Magistrate has done appears to be more in consonant with the examination of the accused on oath than with mere verification of the contents. In any event this would be an irregularity not vitiating the proceedings. It does not fall within any of the provisions contained in sec. 461 of the Code. ( 10 ) NOW with regard to the remaining accused Nos. 13 and 14 whose names are mentioned in private complaint No. 2 of 1971 though they do not appear in the charge sheet submitted in the police case it will be seen that as per the provisions contained in sec. 210 (2) of the Code as the report is made by the investigating officer under sec. 173 and on such report cognizance of the offence is taken by the learned Magistate against 12 persons who are also accused in the complaint case the provisions of sub-sec. (2) will come into play and the learned Magistrate has therefore to inquire into the complaint as well as the police case together which he has done. What is required is that cognizance must be taken of the offence in the police case against persons who are also accused in the complaint case and it is not vice versa. And similar is the position under sub-sec. (3) of sec. 210. In the instant case this requirement is complied with in view of the fact that all the 12 accused against whom cognizance of the offence is taken by the learned Magistrate in the police case are also accused in the complaint case. And similar is the position under sub-sec. (3) of sec. 210. In the instant case this requirement is complied with in view of the fact that all the 12 accused against whom cognizance of the offence is taken by the learned Magistrate in the police case are also accused in the complaint case. In any event at the most it may be said that because the accused are not the same in both the cases both the cases may not be inquired into or tried together of trying the case does not arise because as provided in sec. 209 of the Code when in a case instituted on a police report or otherwise the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the court of session he has to commit the case to the court of session which the learned Magistrate has done in the instant case. Of course he has to comply with the provisions of sec. 207 or 208 as the case may be which has been done in the instant case firstly so far as 12 accused are concerned because they were persons against whom a charge sheet was submitted. With regard to the remaining two accused in the second complaint case as no process had been issued in the complaint case though the learned Magistrate had taken cognizance of the matter and stayed the same under the provisions of sec. 210 he ordered issuance of process on an application of the learned Advocate for the complainant against accused Nos. 13 and 14 by his order at Ex. 7 and process has already been served on these accused on whose behalf appearance has also been filed by the advocate. Thus it cannot be said that provisions of sec. 207 are not complied with. ( 11 ) THE next challenge is that in the instant case after taking cognizance of the private complaints viz complaints Nos. 1 and 2 of 1978 the learned Magistrate has not issued process as provided in sec. 204 against the accused in the said two complaints. As provided by sec. 207 are not complied with. ( 11 ) THE next challenge is that in the instant case after taking cognizance of the private complaints viz complaints Nos. 1 and 2 of 1978 the learned Magistrate has not issued process as provided in sec. 204 against the accused in the said two complaints. As provided by sec. 204 (1)" (1) If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding and the case appears to be (a) a summons case he shall issue a summons for the attendance of the accused; or (C) a warrant case he may issue a warrant or if he thinks fit a summons for causing the accused to be brought or to appear at a certain time before such Magistrate or (if he has no jurisdiction himself) some other Magistrate having jurisdiction". Now as observed earlier in the instant case by virtue of the fact that when these complaints were filed investigation in the police case was in progress the learned Magistrate acted under sec. 210 and stayed the complaints. Thereafter report including charge sheet was submitted against 12 accused in the police case and the learned Magistrate was informed accordingly as per the note of the police officer concerned on the back of the letter issued in these two complaints calling for a report of the police officer under sec. 210 as earlier set out and thereafter following the procedure the learned Magistrate took up all the three matters viz. the police case and the two complaint cases and passed the three committal orders under sec. 209 of the Code. The question of issuing fresh process in the complaint cases against 12 accused against whom charge sheet was already submitted in the police case together with which the complaint cases were taken up for deciding as to whether the matters should be committed to the court of session or not did not arise and therefore it cannot be said that the procedure prescribed in sec. 204 has not been followed by the learned Magistrate. So far as the remaining two accused are concerned process is already issued as earlier stated. ( 12 ) MR. Mankad relied on Kamal Krishna De v. State and Another 1977 Criminal Law Journal 1492 in support of his contention that the provisions contained in proviso to sub-sec. (2) of sec. 204 has not been followed by the learned Magistrate. So far as the remaining two accused are concerned process is already issued as earlier stated. ( 12 ) MR. Mankad relied on Kamal Krishna De v. State and Another 1977 Criminal Law Journal 1492 in support of his contention that the provisions contained in proviso to sub-sec. (2) of sec. 202 are mandatory and that therefore failure on the part of the learned Magistrate to call upon the complainant to produce all his witnesses and to examine them on oath is fatal to the committal order. It is true sec. 202 (2) provides that in an inquiry under sub-sec. (1) the Magistrate may if he thinks fit take evidence of witnesses on oath provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the court of session he shall call upon the complainant to produce all his witnesses and examine them on oath. But these provisions will come into play if the learned Magistrate does not choose to act under sec. 210 as he has done in the instant case and which he is bound to do when it appears that the investigation with regard to the very offence is in progress when he receives the private complaint. Once that has teen done then he has to follow the procedure under sec. 210 which he has followed in the instant case. In view of the submission of the charge sheet against the very accused who were also accused in the private complaints and the provisions in sec. 210 providing that both private complaint and the police case have to be heard together though the accused are separate it would not be necessary to follow the procedure under sec. 202 because the question of postponement of issuance of process does not arise when a charge sheet is submitted against the accused for the very offence. With regard to the remaining two accused process has already been issued. There is therefore no infringement of sec. 202 as contended by Mr. Mankad. Sec. 204 merely lays down bar of process that has to be issued. In the instant case in view of the fact that the procedure under sec. 210 was followed and as charge sheet was submitted against 12 accused and process was issued against the remaining accused thereafter the provisions of sec. 202 as contended by Mr. Mankad. Sec. 204 merely lays down bar of process that has to be issued. In the instant case in view of the fact that the procedure under sec. 210 was followed and as charge sheet was submitted against 12 accused and process was issued against the remaining accused thereafter the provisions of sec. 204 also would not come into play. ( 13 ) WITH regard to sec. 207 on which Mr. Mankad had also relied as already observed earlier since in the police case police report including charge sheet was submitted and copies etc. were supplied to the accused as provided in sec. 207 and as the accused are the same and as procedure under sec. 201 was followed it cannot be said that there was any infringement of sec. 207 also. ( 14 ) THE learned Magistrate therefore as perfectly competent in acting under sec. 209 after the charge sheet was submitted in the police case and intimation was given to him in the private complaints to that effect and after process was issued against the remaining two accused thereafter. There has to be now no elaborate inquiry for the purpose of commitment as was provided in the Old Code. because under the new Code as provided in sec. 209 if it appears to the Magistrate that an offence is triable by the court of session he has to commit the case to the court of session. The three committal orders therefore passed by the learned Magistrate are perfectly in order and are passed in accorance with law. . . . . . . . . . . . . ( 15 ) MR. Mankad also contended that when the two private complaints were filed on 9-1-1978 what was pending was investigation in the police case against two of the thirteen and fifteen accused respectively mentioned in the said two complaints and that it cannot be said that investigation by the police was in progress in relation to the offence which was the subject matter of inquiry in the said two private complaints. The subject matter of the inquiry in the said two private complaints was inter alia offences under secs. 307 and 331; while there was no such offence under investigation by the police and that therefore the provisions of sec. 210 (1) would not come into play. The subject matter of the inquiry in the said two private complaints was inter alia offences under secs. 307 and 331; while there was no such offence under investigation by the police and that therefore the provisions of sec. 210 (1) would not come into play. Now an offence is constituted by acts which are alleged to have been done by accused persons and facts are stated for that purpose. It is the bundle of facts which constitute an offence. What was under investigation by the police was the same incident which was also the subject matter of the complaint. Same facts were under investigation. Simply because a particular section is not mentioned in the first information report it does not mean that police would not be investigating an offence which is the subject matter of the private complaint based on the same facts and same acts if the private complaint over and above the sections mentioned in the first information report mentions some more sections. What we have to see is what is under investigation ? Is the incident which happened is the same as it emerges from the first information report as also from the said two complaints; in substance ? Therefore it cannot be said that at the time when the complaints were instituted an investigation by the police was not in progress in relation to the offence which was the subject matter of the inquiry in the said complaints. Rule discharged. .