Prabhu Yadav v. Dewki Devi — 1989 DIGILAW 117 (PAT)

JUDGMENT Ram Nandan Prasad, J. - The prayer in this application is for quashing the order dated 21-1-84 in Complaint Case No. 128(c)83 of the court of Sub-divisional Judicial Magistrate, Lakhisarai whereby the learned Magistrate, after conducting an inquiry under Section 202 of the Code of Criminal Procedure has found that a prima facie case under Sections 147, 148 and 436 of the Indian Penal Code is made out against the accused persons, who are the petitioners in this application, and has ordered for issuing summons against them. The petitioners have also prayed that the entire criminal proceeding may be quashed. 2. The occurrence in question is said to have taken place at about 7 a.m. on 16.8.83 in village Koormoori P. S. Karanda District Munger. The complainant of the case Smt. Dewki Devi alleged that in the morning on 16.8.83 while she along with her husband Saran Dhari was in her house, the accused persons variously armed with Lathi, Bhala, Farsa and Pistol came there and the accused Prabhu Yadav called out that the complainant's house should be burnt and her husband Saran Dhari should be killed whereupon Brahm Yadav and Prabhu Yadav himself set fire to the thatched roof of the house as a result of which the same got burnt. She further alleged that the accused persons dragged out her husband and took him away towards Kyar Bahiyar and there killed him. She also stated in the petition of complaint that when she went to the Karanda P. S. the police did not register her case and the police of Sikandara P. S. had taken away the dead body of her husband though the case was beyond their jurisdiction. This petition of complaint was filed in the court of the Sub-divisional Judicial Magistrate Lakhisarai on 17.8.83 and numbered as case no. 128(c)/83. 3. It appears that a similar petition of complaint was filed by Mostt. Dewki on 13.12.83 in the court of the Sub-divisional Judicial Magistrate Jamui (Annexure II) and this was forwarded by the court to Sikandra P. S. where it was registered as Sikandra P. S. Case No. 183 dt. 19.12.83. The allegations in both the petitions were more or less the same except that in her petition of complaint filed before the Sub-divisional Judicial Magistrate Lakhisarai Mostt. 19.12.83. The allegations in both the petitions were more or less the same except that in her petition of complaint filed before the Sub-divisional Judicial Magistrate Lakhisarai Mostt. Dewki has alleged that she being a harijan is being oppressed and the police is in collusion with the accused persons and the village people are also under fear of the accused persons as a result of which she apprehends that she will not be able to get justice at the hands of the police. The learned Sub-divisional Judicial Magistrate, Lakhisarai took the statement of the complainant Mostt. Dewki Devi on solemn affirmation on 22.11.83 and thereafter conducted the enquiry under Section 202 of the Code of Criminal Procedure resulting in the order dt. 31.1.84. 4. The only ground on which the impugned order has been assailed, and the prayer for quashing the same as well as for quashing the entire criminal proceedings, has been made is that since on the same allegations and for the same offences an investigation was in progress in Sikandara P. S. Case No. 183/83, the Sub-divisional Judicial Magistrate Lakhisarai should not have proceeded with the complaint case and should have stayed its proceeding till the investigation was completed in the police case. It is submitted that since this was not done there was violation of the provisions of Section 202 of the Code of Criminal Procedure and this makes the impugned order illegal and unsustainable. 5. For appreciating the contention raised on behalf of the petitioners, it will be useful to quote the provisions of Section 210 of the Code of Criminal Procedure. 5. For appreciating the contention raised on behalf of the petitioners, it will be useful to quote the provisions of Section 210 of the Code of Criminal Procedure. It is given below:- "Procedure to be followed when there is a complaint case and police investigation in respect of the same offence.—(1) when ill 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 enquiry or trial held by him, that aft investigation by the police is in progress in relation to the offence which is the subject matter of the enquiry or trial held by him, the Magistrate shill stay the proceeding 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 the 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 the complaint case, the Magistrate than 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". No doubt, on the basis of the complaint made by Dewki Devi in the court of the Sub-divisional Judicial Magistrate Jamui on 13.12.83, which was forwarded by the court to Sikandara P. S., police case bearing Sikandra P. S. Case No. 183/83 dt. 19.12.83 had been instituted and its investigation was in progress. What exactly led the complainant to file a second application in the court of the Sub-divisional Judicial Magistrate Jamui is not clear. It has been painted out that in respect of the murder of Dewki Devi's husband in Kyar Bahiyar, one of the petitioners namely Prabhu Yadav had lodged an information (Annexure-I) at Sikandra P. S. on 16.8.83 on the basis of which Sikandra P. S. Case 116/83 has been instituted. It has been painted out that in respect of the murder of Dewki Devi's husband in Kyar Bahiyar, one of the petitioners namely Prabhu Yadav had lodged an information (Annexure-I) at Sikandra P. S. on 16.8.83 on the basis of which Sikandra P. S. Case 116/83 has been instituted. The allegations and the manner of occurrence in that case, lodged at the instance of the petitioner Prabhu Yadav and the persons said to be responsible for the killing are quite different from the allegations and narration of the occurrence made by Dewki Devi her petition of complaint. There is also no allegation of arson in Sikandra P. S. 116/83. As such Sikandra P. S. 116/83 cannot be regarded as a case arising out of the same offence in respect of which the present complaint petition was filed. Of course Sihndra P. S. 183/83 relates to the same offence in respect of which the complaint was filed by the Dewki Devi on 17.8.83 in the court of the Sub-divisional Judicial Magistrate Lakhisarai. The question which now arises for consideration is whether the continuation of the inquiry in the complaint case (case no. 128 (c)/83) can be said to be in any way invalidated or to have become illegal on the ground that investigation in Sikandra P. S. Case No. 183/83 was in progress after in institution on 19.12.83. 6. The first requisite for the application of Section 210 of the Code of Criminal Procedure is that the Magistrate in whose court the complaint case in pending may receive the necessary information about any investigation proceeding in a police case in respect of the same offence. On looking into the L. C. Record it is clear that no information at any stage was received by the Magistrate in whose court the inquiry under Section 202 of the Code of Criminal Procedure in the complaint case was pending and in which the Magistrate by the impugned order has taken cognizance and ordered for issue of summons to the petitioners. Since no information had been given to the Magistrate regarding the pendency of the police investigation is Sikandra P. S. 183/83, it is obvious that the Magistrate could not have taken any action under Section 210 of the Code of Criminal Procedure because it was never made to appear to him that during the course of inquiry under Section 202 of the Code of Criminal Procedure that any investigation by police was in progress in relation to the offences which are the subject matter of the inquiry. Thus, the very basis which could have made Section 210 of the Code of Criminal Procedure applicable is lacking in the present case. 7. A plain reading of Section 210 of the Code of Criminal Procedure indicates that the principle embodied therein is to avoid multiplicity of proceedings arising out of the same offence. If for the same offence a complaint case as well as police case have been lodged, and inquiry is taken up in the complaint case and investigation is taken up in the police case, it does not mean that either the inquiry or the investigation, due to the mere pendency of the other, ipso facto becomes invalid or illegal. The inquiry and the police investigation are two separate and distinct entities and the pendency of the one will not make the other illegal. However, for avoiding multiplicity of proceedings and unnecessary harassment to the parties, particularly the accused, the provision has been enacted under Section 210 of the Code of Criminal Procedure that whenever it is made to appear to the Magistrate during the course of the inquiry or trial of a complaint case that a police investigation in relation to the offence which is the subject matter of the inquiry or trial is in progress, he shall stay the proceedings of such inquiry or trial and call for a report in respect of the investigation and if such report is received and investigation concludes, and there is a charge-sheet, the two cases will actually get amalgamated and proceed as a single case. However, if the report received from the police shows that the investigation has ended in final form, the inquiry or trial will no longer be held up and the Magistrate will proceed on with the complaint case. However, if the report received from the police shows that the investigation has ended in final form, the inquiry or trial will no longer be held up and the Magistrate will proceed on with the complaint case. But it is obvious that the contingency of staying the proceeding in the complaint case will arise only and only when it is made to appear to the Magistrate that police investigation in respect of the offence in question is also going on. 8. The factual position here is that final report has been submitted in Sikandra P. S. Case No. 183/83 on 28.6.84. So is any view of the matter the police investigation has come to an end and in view of the final report nothing further was required to be done in that case. As I have already observed above, the validity of an inquiry in a complaint case does not get affected by the mere pendency of investigation of a police case instituted in respect of the same offence. I am fortified in this view by the observations made by the S. C. in the case reported in A.I.R. 1989 S.C. p. I. The observations in paragraph 5 of the judgment are as follows:- "Even where a Magistrate takes cognizance of an offence instituted otherwise than on a police-report and an investigation by the police is in progress in relation to same offence, the two cases do not lose their separate identity. The section seeks to obviate the anomalies that might arise from taking cognizance of the same offence more than once." There can be no doubt, therefore, that the validity of the inquiry under Section 202 of the Code of Criminal Procedure was not in any way affected by the pendency of investigation in Sikandara P. S. Case. No. 183/83, particularly when the Magistrate had no information regarding this investigation. For the same reasons, the pendency of the investigation does not make the .impugned order invalid or illegal in any way. Since the investigation in Sikandara P. S. Case No. 183/83 has ended in final report, nothing is now required to be done by the Magistrate under Section 210 of the Code of Criminal Procedure. Incidentally, it may be noted that final report was submitted the police also in Sikandra P. S. Case No. 116/83. 9. Since the investigation in Sikandara P. S. Case No. 183/83 has ended in final report, nothing is now required to be done by the Magistrate under Section 210 of the Code of Criminal Procedure. Incidentally, it may be noted that final report was submitted the police also in Sikandra P. S. Case No. 116/83. 9. For the reasons stated above, I find no merit in this application, and the same is hereby dismissed. The court below is directed to make all efforts for speedy disposal of the case in accordance with law, it should issue notice to the complainant and also take effective steps for apprehension of the accused persons.