G. T. NANAVATI, I. C. BHATT, J. ( 1 ) THE applicant who is the original complainant moved the police in the first instance and then the Court with respect to the incident which had taken place on 10-9-1979. On that day at about 9-00 p. m. Ran chhodbhai Manibhai opponent No. 1 (original accused No. 1) who is staying opposite to his house came near his house and started abusing him. He complained that the son of the complainant had thrown dust on his scooter. As the accused was uttering abuses the complainant asked him to keep quiet. He continued abusing. Therefore the complainant went inside his house and closed the doors. Accused No. 1 who is staying with his kept and doing transport business in the name of Deesa Transport Co. called some of his supporters who are known as German Gang. They all then came in his house at about 11-00 a. m. They were all armed with weapons like sticks chains pipes hockey sticks etc. They started damaging window panes and the doors of his house. He got frightened and to save himself ran away from the back door. It is his case that a crowd of about 30 persons committed trespass in his house and damaged his furniture and other articles of the value of about Rs. 4 0 Many persons of the society had collected near his house but non intervened as they were all afraid of accused No. 1 and his associates. After running away from his house he contacted Raopura Police Station and because of that message given by him a police van was sent to his house. The police then started recording his complaint. At that time accused No. 1 also came to the police station. Because of his influence the police officers instead of taking down his complaint in the way he wanted to give became angry with him did not allow him to speak further and wrote it down the way they liked. Thereafter his signature was taken on it. He was initially not willing to sign the same; and therefore the police took a counter complaint from accused No. 1 against him. As the police had not taken his complaint properly he tried to contact the D. S. P. and the Collector on telephone but they were not available. Thereafter his signature was taken on it. He was initially not willing to sign the same; and therefore the police took a counter complaint from accused No. 1 against him. As the police had not taken his complaint properly he tried to contact the D. S. P. and the Collector on telephone but they were not available. He therefore rang up I. G. P. at Ahmedabad He was advised to contact Dy. S. P. at Baroda. Before he could contact the Dy. S. P. Inspector Desai arrested him. Sometime thereafter his brother approached the police for getting him released. He was asked to produce a knife after purchasing it from the market. His brother thought that there was no other alternative of getting the complainant released and therefore he did whatever the police asked him to do. After he was released from the custody he wrote to the Government about what had happened. Again on 13-9-1979 he sent one letter to the Government and copies to various other authorities but nothing was done either by the Government or by the police officers except that on 10-10-1979 the police filed a charge sheet against accused Nos. 1 and 2 only for the offences punishable under secs. 451 427 323 504 506 and 114 of the Indian Penal Code. As no further action was taken by the police even after receiving the letter dated 10-10-1979 the complainant filed a complaint in the Court of the Judicial Magistrate First Class Vadodara on 26-11-1979 against 6 accused whom he had identified as his assailants. The case which was instituted upon the charge sheet was registered as Criminal Case No. 1539 of 1979. The case instituted upon the complaint was registered as Criminal Case No. 1844 of 1979. ( 2 ) IN the police case charge was framed on 7-3-1980 and thereafter evidence of 2 witnesses was recorded. In the private case also summonses were issued on 7-3-1980 and a charge was framed against all the six accused. On 31-7-1980 the learned advocate for the accused gave an application Exh. 10 for consolidating both the cases and proceeding further with the case as one instituted upon a charge sheet. That application was opposed by the complainant. The learned Magistrate relying upon sec. On 31-7-1980 the learned advocate for the accused gave an application Exh. 10 for consolidating both the cases and proceeding further with the case as one instituted upon a charge sheet. That application was opposed by the complainant. The learned Magistrate relying upon sec. 2e0 of the Code of Criminal Procedure 1973 (here after referred to as the Code) granted that application by his order dated 14-8-1980 and the case thereafter proceeded as one single case instituted upon the charge sheet. On 20-12-1980 a fresh charge was framed against all the six accused. Thus over and above the two original accused four more persons who were shown as accused in the private case were also joined as accused in the police case. The charge also contained the offences which were disclosed in the complaint but were not mentioned in the charge sheet. Thus the Court took cognizance of all the offences alleged by the complainant and all the 6 accused came to be tried for those offences but the case thereafter proceeded as if it was a case instituted upon a charge sheet. The evidence was recorded afresh and ultimately the learned Magistrate acquitted all the six accused of all the charges on the grounds that there were many inconsistencies in the complaint filed by the complainant before the police and the complaint filed by him in the Court that the evidence Was not only inconsistent but was full of material contradictions that there was enmity between the main prosecution witnesses) and the accused and that the prosecution had failed to examine independent witnesses. The complainant feeling aggrieved by the said order of acquittal has filed this revision application. ( 3 ) THREE contentions were raised before us by the learned advocate for the petitioner. It was urged that sec. 210 of the Code is not at all applicable to the facts of this case; and therefore the learned Magistrate committed an illegality and acted without jurisdiction in clubing the two proceedings together under sec. 210. It was also urged that in absence of any provision to that effect in the Code the learned. Magistrate had no power to amalgamate or consolidate the two cases and proceed with them as one single case instituted upon a charge sheet. It was also urged in the alternative that even if it is held that the Court independently of sec. Magistrate had no power to amalgamate or consolidate the two cases and proceed with them as one single case instituted upon a charge sheet. It was also urged in the alternative that even if it is held that the Court independently of sec. 210 has such a power it ought not to have exercised the same in this case in view of the allegations made by the complainant in his complaint. By amalgamating or consolidating the two cases and proceeding with the same as a police case serious pre judice has been caused to the complainant and it has resulted in failure of justice. . . . . . . . . . . . . . . . . . . ( 4 ) WHAT is urged on behalf of the accused respondents is that sub-sec (1) and (2) are totally independent of each other and deal with two different situations. It was urged that if two conditions of sub-sec. (2) viz. (i) if a report is made by the investigating police officer under sec. 173 and (ii) on such report cognizance of any offence is taken by the Magistrate against any person who is an accused in the complaint case are satisfied then the procedure provided in that sub-sec. is required to be followed by the Magistrate; no matter whether the complaint case is filed earlier or later. On these basis the accused respondents have tried to support the course adopted by the learned Magistrate. ( 5 ) IF the Legislature desired to provide for an altogether different situation unconnected with sub-sec. (1) then it would have in all probability enacted it as a separate section and not as a part of sec. 210. The way this section is worded also indicates that sub-secs. (2) and (3) are not unconnected with sub-sec. (1 ). Sub-secs. (2) and (3) open with the words If a report is made by the investigating police officer under sec. 173 and 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. That would mean that what is provided therein is in relation to what is provided in sub-sec. (1 ). Sub-sec. 173 and 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. That would mean that what is provided therein is in relation to what is provided in sub-sec. (1 ). Sub-sec. (1) contemplates calling for a report from the police officer conducting investigation in respect of the matter which is under enquiry before the Magistrate. If sub-secs. (2) and (3) are to be regarded as totally inconnected with sub-sec. (1) then what the learned Magistrate is supposed to do with that report will remain unexplained and not provided for. Again the words against any person who is an accused in the complaint case occurring in sub-sec. (2) clearly imply existence of a complaint case prior to the making of the police report. It is further provided in sub-sec. (2) that the Magistrate should inquire into or try together the complaint case and the case arising out of the police report. That would mean that there should first be a complaint case followed by a case investigation upon a police report. It is therefore not possible to take the view that sub-sec (2) is independent of and unconnected with sub-sec. (1 ). Section 210 really deals with one type of situation arising as a result of a complaint case being filed before a Magistrate and when investigation by the police is in progress in relation to the offence which is the subject matter of the enquiry or trial; and it provides for the procedure to be followed by the Magistrate when he finds that two parallel cases for the same offence are pending before him. If sec. 210 is construed in this manner then the first condition which should be satisfied before the said section can apply is that there should be a case instituted otherwise than on a police report pending an inquiry or trial. If cognizance is already taken on the basis of a police report and then a complaint is filed before the Magistrate this section will have no application. It is not intended to meet with such a situation or to deal with consequences arising therefrom. ( 6 ) THE next question to be considered is whether independently of sec. 210 it was permissible for the learned Magistrate to amalgamate the two cases. It is not intended to meet with such a situation or to deal with consequences arising therefrom. ( 6 ) THE next question to be considered is whether independently of sec. 210 it was permissible for the learned Magistrate to amalgamate the two cases. It was urged that in absence of any specific provision in the Code enabling g the Court of the Magistrate to amalgamate two independent cases the learned Magistrate could not have amalgamated the case filed by the complainant and the case which was instituted on a police report. Dealing with such a situation the Orissa high Court in SUDHAKAR DAS V. DAYANIDI MOHANTY A. I. R. 1965 ORISSA 114 observed as under: ( 7 ) "it is primarily the right of the person either to make his complaint before the Magistrate or lodge an information before the police and thus to choose an appropriate forum for initiation of the criminal proceedings. Under sec. 154 and 156 it is the statutory right of the Police to investigate without requiring any authority from a Magistrate and in fact may proceed to investigate a case on their own information and without formal information by any party. If a case is initiated on a police report the accused also gets the advantage of the previous statements recorded by the investigating officer so as to confront the witnesses with the same at the trial. Therefore it is reasonable to say that in a case of competipeti between the two parallel proceedings one based upon a private complaint and other on a police report the former should lose its identity and merge in the latter. "though the question before that Court had arisen in the context of right to file an appeal under sec. 473 the observations made by the Court are of general importance. What is observed by the Orissa High Court is really the basic principle of criminal jurisprudence in this country. No doubt it is true that there is no specific provision in the Code enabling the Magistrate to amalgamate two cases pending before him but if such a course is adopted in the interest of justice it cannot be said to be illegal. Such power can also be spelt out from the provisions of secs. 190 219 223 and 216 of the Code. Such power can also be spelt out from the provisions of secs. 190 219 223 and 216 of the Code. What the learned Magistrate did in this case was that he took cognizance against some of the accused on the basis of the charge sheet filed in his Court. He thereafter took cognizance against other accused and also of other offences on the basis of the complaint field before him. This he did when he noticed that 2 separate proceedings in respect of the same offences were going on before him. He then altered the charge in that case and followed the procedure laid down in secs. 216 and 217 of the Code. Having adopted such a course it would have been improper for him to proceed with the private case. That would have amounted to trying the accused twice for the same offences even though it is prohibited by Article 21 of the Constitution of india. He therefore cannot be said to have acted illegally in amalgamating the two cases. It is true that he did so in exercise of the power under sec. 210 of the Code but merely because reliance was placed on a wrong provision of law it cannot be said that the had no power to do so. In our opinion it is always open to the Court to amalgamate the two proceedings and proceed with them as one case only if that becomes necessary in order to avoid two parallel proceedings going on against the same accused for the same offences. Therefore the second contention raised by Mr. Patel cannot be accepted. His Lordship then observed that in the instant case the complainant had stated in his complaint that the police had not taken down the complaint properly and that the investigation carried on by them was not at all fair and impartial. A definite allegation was made against the police that they were siding with the accused. The complaint had drawn the attention of the higher authorities also in this behalf. In the complaint itself all these facts have been stated. As a result of the amalgamation of the two cases the case proceeded as if it was instituted upon a police report. The result was that all the witnesses could be confronted with their statements recorded by the police. In the complaint itself all these facts have been stated. As a result of the amalgamation of the two cases the case proceeded as if it was instituted upon a police report. The result was that all the witnesses could be confronted with their statements recorded by the police. It was the allegation of the complainant that the statements of the witnesses were not correctly recorded by the police. All his witnesses were contradicted by their police statement. Their evidence came to be rejected mainly on the ground that there were contradictions in their evidence. The evidence of the complainant himself was rejected mainly on the ground that his version before the Court was quite different from the version before the police. Thus amalgamation of the two cases has caused serious prejudice to the complaint. The legal position is that the High Court should rarely interfere in exercise of its revisional jurisdiction and order a retrial. However this is a fit case in which the court should interfere in order to avoid miscarriage of justice. ] Application allowed: Retrial ordered. .