Nawaj Ali Sk. v. Rahim Sk. — 1997 DIGILAW 271 (CAL)

JUDGMENT Dibyendu Bhusan Dutta, J.: The instant revisional application under s. 401 read with 482 Cr.P.C. is directed against the order dated 15.6.91 passed by the learned Additional Sessions Judge, Third Court, Nadia in Cri. Motion No. 88 of 1989. 2. The facts and circumstances leading to the impugned order may, in substance, be stated as follows. The Opposite Party No.1 Rahim Sekh, lodged an FIR with the Kaliganj Police Station on 2.9.83 making allegations against five persons over an incident that took place on 2.9.83. On the basis of the said information, Kalliganj Police Station Case No.2 dated 2.9.83 under Ss. 147/148/149/326/307/34/379 of IPC was registered. While the investigation of that case was in progress, the opposite party No.1 filed a petition of complaint on 20.9.83 before the learned Chief Judicial Magistrate, Krishnanagar against 11 persons including the five persons against whom the FIR had already been lodged. The petition of complaint also related to the same incident for which the Kaligunj P.S. Case No.2 dated 2.9.83 was registered. The offences complained of in the petition of complaint were punishable under Ss. 147/148/149/326/307/34/379 of IPC. On the basis of the petition of complaint, complaint case No. 502C/83 was registered in the Court of the Chief Judicial Magistrate, Nadia. The factum of initiation of the police case was not brought to the notice of the Chief Judicial Magistrate. The police case was investigated and after completion of investigation of the police case, charge-sheet was submitted under Ss. 324/325/326 on 18.11.83 before the learned Sub-Divisional Judicial Magistrate against four out of the five persons complained against and they are petitioners Nos. 3, 4, 8 and 11. The police case was registered as G. R. 1949 of 1983 and was transferred to the Second Court of Judicial Magistrate of Krishnanagar on 18.5.84. The learned CJM took cognizance on 21.1.85 on the basis of the complaint against only two accused persons under Ss. 326/114 of the IPC and discharged the remaining nine. The present petitioners are those 11 accused persons against whom the petition of complaint was filed by the opposite party No. 1. Aggrieved by the order of discharge the opposite party No.1 preferred a motion being Cr. Motion No. 14 of 1985 before the learned Sessions Judge and the learned Session Judge allowed that motion with a direction upon the CJM for reconsideration on the basis of the materials on record. Aggrieved by the order of discharge the opposite party No.1 preferred a motion being Cr. Motion No. 14 of 1985 before the learned Sessions Judge and the learned Session Judge allowed that motion with a direction upon the CJM for reconsideration on the basis of the materials on record. The learned CJM reconsidered the materials and was pleased to issue process on 21.1.86 against all the 11 petitioners under Ss. 147/149/326 IPC. The said complaint case was numbered as TS 8 of 1986 being ready for trial. On behalf of the accused petitioners, a prayer was made before the learned CJM for withdrawal of the police case from the court of the Judicial Magistrate, Second Court and for tagging the said case with the complaint case for a single or joint trial. The learned CJM was pleased to allow this prayer by an order dated 16.8.86. Aggrieved by this order, the complainant opposite party again preferred a motion being Criminal Motion No. 99 of 1986 before the learned Sessions Judge and the learned Sessions Judge rejected it by his order dated 14.1.97 with the observations that the two cases were required to be tried together by the same Judge in accordance with the provisions of s. 223 Cr.P.C. The learned CJM framed charges in the complaint case on 27.5.87. The learned CJM; thereafter, proceeded to take evidence in the complaint case and fixed 10.1.89 for the purpose. On 10.1.89, one witness was examined by the prosecution which was being conducted by APP appearing for the State. Further examination of witnesses was deferred to 9.6.89. On 9.6.89, three more witnesses were examined by the prosecution. On that very date, the de facto complainant filed an application praying for leave of the Court for allowing an advocate engaged by him to make some points for the prosecution. The learned CJM refused to allow that prayer with the observation that the de facto complainant had no locus standi to summit anything for the prosecution. The de facto complainant filed an application praying for stay of the trial in order to enable him to move the Hon'ble High Court against the said order of rejection. The learned Magistrate refused to grant stay at that stage. The de facto complainant filed an application praying for stay of the trial in order to enable him to move the Hon'ble High Court against the said order of rejection. The learned Magistrate refused to grant stay at that stage. Another application was filed on behalf of the de facto complainant praying for stay of the trial in order to enable him to file an application under s. 408 of Cr.P.C. for transfer of the case on the ground that he would not get fair trial from the said Court. That application also met with the same fate and ultimately on 2.8.89, the opposite party No.1 preferred a motion being Crl. Motion No. 88 of 1989 before the learned Sessions Judge challenging the order passed by the learned CJM in trial No. 58 of 1986. The learned Sessions Judge stayed all further proceedings of the trial pending the trial of the revisional application and transferred the said application to the learned Additional Sessions Judge, Third Court for disposal. By the impugned order, the learned Additional Sessions Judge was pleased to allow the motion setting aside the order dated 9.6.89 of the CJM whereby the learned Magistrate was pleased to refuse to grant leave to the de facto complainant to submit the prosecution case through his advocate. The learned Additional Sessions Judge directed the CJM to try both the complaint case and the police case together in the manner indicated below. The two cases should be tried together, but not consolidated. Evidence should be recorded separately in both the cases one after the other except to the extent that the witnesses to the prosecution were common to both the cases have to be examined in one case and their evidence should be read as evidence in the other. After recording the evidence of the prosecution witnesses in one case, he was to proceed to record the evidence in the other case. Thereafter, the learned Judge is to proceed to simultaneously dispose of the two cases by two separate judgments taking care that the judgment of one case was not based on the evidence recorded in the other case. 3. Being aggrieved by and dissatisfied with this order the learned Additional Sessions Judge, the accused petitioners of both the complaint case and the police case have come up with the present revisional application. 4. 3. Being aggrieved by and dissatisfied with this order the learned Additional Sessions Judge, the accused petitioners of both the complaint case and the police case have come up with the present revisional application. 4. In assailing the legality of the impugned order, Mr. Dipak Kr. Sengupta, the learned counsel appearing for the petitioners, made the following points. It is submitted that both the police case and the complaint case were instituted at the instance of the opposite party No. 1. It was the opposite party No.1 who lodged the information that gave rise to the police case and it was again the opposite party No.1 on whose complaint, the complaint case was registered. In both the cases, the accusation made by him related to an incident that took place in the morning of 2.9.83. It may be that there are some omissions in one case or additions in the other case but the broad facts constituting the alleged offence in both the cases are more or less the same. The prosecution versions in the police case and the complaint case are not materially different, contradictory or mutually exclusive. Then again, there is constitutional bar under Art. 20(2) for prosecution and punishment of a person more than once for the same offence. Moreover, under s. 223 of the Cr.P.C. persons committing offence in the course of the same transaction can be charged and tried together and since the prosecution versions in the police case and the complaint case are not at variance with one another, it is permissible for the Court under s. 223 - Cr.P.C. to consolidate the police case and the complaint case. In support of the contention for consolidation and clubbing of the two cases in question, Mr. Sengupta placed his reliance on a decision of the Supreme Court in the case of Harjinder Singh vs. State of Punjab and Ors., reported in 1986 Cr.LJ 831. It is submitted that the learned CJM was perfectly justified in allowing the prayer on 16.8.86 that was made on behalf of the accused petitioners for tagging of the two cases for a single trial. Consequently, the learned Sessions Judge rightly rejected the criminal motion 99 of 1986 that was preferred by the opposite party No.1 against the said order dated 16.8.86 of the learned CJM, by his order dated 14.1.87. It was further contended by Mr. Consequently, the learned Sessions Judge rightly rejected the criminal motion 99 of 1986 that was preferred by the opposite party No.1 against the said order dated 16.8.86 of the learned CJM, by his order dated 14.1.87. It was further contended by Mr. Sengupta that in view of the provisions of sub-s. (2) of s. 210 Cr.C.P., the police case and the complaint case were required to be tried together in accordance with the procedure meant for trial of a case instituted on a police report as if both the cases were instituted on a police report. Accordingly, both the cases were being tried in accordance with the procedure meant for a case instituted on a police report and that is why charged were framed in the complaint case (T58/86) on 27.5.87 without any evidence being taken. That being so, the trial of the two cases was being conducted by the learned APP for the State. Mr. Sengupta submitted that a plain reading of sub-Ss. (1) and (2) of s. 301 would make it abundantly clear that if in a case which is in charge of a public prosecutor or assistant public prosecutor, the private person engages a lawyer then notwithstanding such engagement, the public prosecutor or assistant public prosecutor who is in charge of the case shall conduct the prosecution and the lawyer engaged by the private person shall act therein under the direction of the public prosecutor or assistant public prosecutor and that he can only submit written arguments and that too with the permission of the Court. In other words, a lawyer engaged by private person had no right of audience in a case which is in charge of a public prosecutor. For this proposition of law, Mr. Sengupta relies on a decision of a Division Bench of our High Court in the case of Re : Rakhan Singh Ozha reported in 1988 Cr.LJ 278. Relying on the aforesaid proposition of law, Mr. Sengupta submitted that the de facto complainant's prayer before the trial court for leave for the private lawyer to make some points in connection with the complaint case was misconceived and the learned CJM rightly refused to grant such leave by his order dated 9.6.89. Mr. Relying on the aforesaid proposition of law, Mr. Sengupta submitted that the de facto complainant's prayer before the trial court for leave for the private lawyer to make some points in connection with the complaint case was misconceived and the learned CJM rightly refused to grant such leave by his order dated 9.6.89. Mr. Sengupta strenuously contended that the criminal motion 58 of 1988 which was directed against the said order of refusal to grant leave to the private lawyer engaged by the opposite party complainant was not maintainable and the learned Additional Sessions Judge was not at all justified in allowing that motion by his impugned order dated 15.6.91. In allowing that motion, the learned Additional Sessions Judge had virtually set aside that order dated 14.1.87 whereby the learned Sessions Judge has also rejected the motion (99 of 86) against the learned CJM's order dated 16.8.86 permitting the two cases to be tagged and tried as a single case. Mr. Sengupta submitted that such a course is wholly impermissible in law because the learned Additional Sessions Judge in the subsequent motion (58 of 89) could not go into the question of permissibility or otherwise of a joint trial of the two cases which was already allowed by the learned CJM by his order dated 16.8.86 which was affirmed by the learned Sessions Judge by his order dated 14.1.87 in the earlier motion (99 of 86). The impugned order is, according to Mr. Sengupta, hit by the mischief of the principles, of res judicata. Reliance has been placed in support of his contention in the Supreme Court Case of Manipur Administration vs. Bira Singh reported in AIR 1965 SC 87 . For all these reasons stated above, Mr. Sengupta submitted that the impugned order reversing the course of action adopted by the learned CJM in relation to the trial of the two cases by his order dated 16.8.86 and affirmed by the learned Sessions Judge's order dated 14.1.87 can not be legally sustained and is required to be set aside. 5. Mr. Ashis Kr. Sanyal, the learned counsel appearing for the opposite party No.1, sought to repeal the contentions of Mr. Sengupta in the following manner. 5. Mr. Ashis Kr. Sanyal, the learned counsel appearing for the opposite party No.1, sought to repeal the contentions of Mr. Sengupta in the following manner. It is submitted that although both the police case and the complaint case arose at the instance of the opposite party No.1 over an occurrence that took place on 2.9.83, the prosecution versions in the police challan case and the complaint case cannot be said to be identical. In fact, the FIR was lodged against five of the petitioners and the police case was registered against those five petitioners but after the investigation was completed charge-sheet was submitted only against four of them namely the petitioners Nos. 3, 4, 8 and 11. The learned Magistrate took cognizance against only those four petitioners on the basis of the police report but the complaint case was instituted against each of the 11 petitioners and the Magistrate issued processes against all the 11 petitioners. The charge-sheet was submitted in the police case under Ss. 324, 325 and 326 IPC while in the complaint case, the processes were issued under Ss. 147, 149 and 326 IPC. In the police case no cognizance was at all taken against any of the 7 petitioners namely accused Nos. 1, 2, 5, 6, 7, 9 and 10. Only the four petitioners Nos. 3, 4, 8 and 11, are common accused in both the cases. It is true that in the instant case investigation of the police case was in progress when the complaint case was instituted and as, such, had it been made to appear to the Magistrate during the course of inquiry of the complaint case that the investigation of police case was in progress, sub-s. (1) of S. 210 of Cr.P.C. could have been invoked for staying the proceeding of such inquiry till the submission of the police report. But since the fact that the police case was already under investigation when the complaint was lodged was not brought to the notice of the learned Magistrate during the pendency of investigation of the police case, the stage contemplated under sub-s. (1) of S. 210 had already crossed. The prayer for tagging of the two cases was made before the Chief Judicial Magistrate only in the year 1986 long after the submission of the chargesheet in the police case. The prayer for tagging of the two cases was made before the Chief Judicial Magistrate only in the year 1986 long after the submission of the chargesheet in the police case. In the absence of an order staying the proceeding in a complaint case under sub-s. (1), the question of clubbing of the two cases under sub-s. (2) of S. 210 could not arise. Mr. Sanyal submitted that if at all the present case is to be governed by s. 210 Cr.P.C., it will be governed by sub-s. (3) and not sub-s. (2). The police report does not relate to any of the 7 accused persons involved in the complaint case. If the two cases are clubbed together and by reasons of such clubbing the complaint case loses its identity, and the complainant is not allowed to proceed with the complaint case so far as it relates to the 7 accused persons, against whom the police did not submit the challan nor did the Magistrate take any cognizance on the basis of the police report, the complainant opposite party will be seriously prejudiced. There will hardly be any scope for bringing seven accused persons to book, if the complainant is not allowed to conduct the complaint case as against them. According to Mr. Sanyal, so far as four common accused persons are concerned, the police case and the complaint case may be permitted to be clubbed together in a single trial as if both the cases were instituted on a police report but so far as the remaining seven accused persons are concerned, the complaint case can not be merged with the police case so far as it is directed against those seven accused persons. Mr. Sanyal categorically submits that as regards four common accused persons, there will be a single trial in relation to both the cases and the evidence in one case may be read in another and for all practical purposes the complaint case will lose its separate identity so far as it relates to those four accused persons. But as regards the remaining seven accused persons, the complaint case should be tried by the same Judge simultaneously with the police case and after the recording of evidence is concluded in both the cases, the cases will be disposed of by two separate judgments by the same Judge simultaneously. Mr. But as regards the remaining seven accused persons, the complaint case should be tried by the same Judge simultaneously with the police case and after the recording of evidence is concluded in both the cases, the cases will be disposed of by two separate judgments by the same Judge simultaneously. Mr. Sanyal submitted that the prosecution versions in the police case and the complaint case are at variance and materially differ with one another. As such, the two cases cannot be clubbed and consolidated. Mr. Sanyal also places his reliance upon the Supreme Court decision in the case of Harjinder Singh (supra) and submitted that the prosecution case in the two cases being at complete variance it would not be permissible for the court under S. 223 of the Cr.P.C. to club and consolidate the two cases. So the proper course, according to Mr. Sanyal, to adopt in the instant case is to follow the dictum of the Supreme Court as formulated in paragraph 8 of the decision in Harjinder Singh's case (supra) as has been directed by the learned Additional Sessions Judge by his impugned order dated 15.6.91 while allowing the Criminal Motion (88 of 89). The Supreme Court decision in the case Manipur Administration (supra) cited by Mr. Sengupta is not applicable to the facts and circumstances of the present case. The Supreme Court decision has laid down that the rule of issue estoppel in a criminal case is that where an issue of fact has been decided by a competent court on a former occasion and a finding has been reached in favour of an accused, such a finding would constitute an estoppel or res judicata against the prosecution not as a bar to the trial and conviction of the accused for a different or distinct offence but as precluding the reception of evidence to disturb that finding of fact when the accused is tried subsequently even for a different offence which might be permitted by the terms of s. 403(2). It only precludes evidence being led to prove a fact in issue as regards which evidence has already been led and a specific finding recorded at an earlier criminal trial before a court of competent jurisdiction. Moreover, it is submitted by Mr. It only precludes evidence being led to prove a fact in issue as regards which evidence has already been led and a specific finding recorded at an earlier criminal trial before a court of competent jurisdiction. Moreover, it is submitted by Mr. Sanyal that under s. 386(e) of Cr.P.C., the revisional Court may make any amendment or any consequential or incidental order that may be just and proper and it will be evident from the impugned order that it was passed by the learned Additional Sessions Judge in exercise of his power conferred by s. 386(e). If the complaint case is to be proceeded with in accordance with the provisions of the Code so far as it is directed against the accused persons other than those involved in the police case, the de facto complainant's right to engage a private lawyer and conduct the case on its own cannot be legally denied and the learned Additional Sessions Judge was justified in directing the Chief Judicial Magistrate to give full opportunity to the de facto complainant to conduct the complaint case through his private lawyer. For all these reasons, Mr. Sanyal submitted that the impugned order is not liable to be set aside. 6. Several decisions were also cited by Mr. Sanyal in support of his contentions. They are reported in 1991 Cr. LJ 3273, Dinabandhu Das vs. Batakrushna Das; AIR 1980 SC 1780 , Kewal Krishan vs. Sural Bhan; 27 CWN 700, Judisthir Gape vs. Shekh Samir; 1985 Cr. LJ. 1036, Govinda Menon vs. Muhammed Unni Haji; 1987 Cr. LJ 1225, Kadiresan vs. Kasim and 1993 Cr. LJ 1274, Nunaram vs. State of Rajasthan. Besides the aforesaid decisions, Mr. Sanyal also relied upon the Supreme Court decision in Harjinder Singh's case which was relied upon by Mr. Sengupta. 7. While reciting the contentions raised by Mr. Sengupta on behalf of the petitioners, I have referred to the principles of law enunciated and the observations made by the Supreme Court in the decisions cited by him. 8. Let me now refer to the rulings cited by Mr. Sanyal. 9. Sengupta. 7. While reciting the contentions raised by Mr. Sengupta on behalf of the petitioners, I have referred to the principles of law enunciated and the observations made by the Supreme Court in the decisions cited by him. 8. Let me now refer to the rulings cited by Mr. Sanyal. 9. In 1991 Cr.LJ 3273 (Dinabandhu Das v. Batakrushna Das), a Single Bench of the Orissa High Court held that s. 210(3) of Cr.P.C. is in the nature of an exception to sub-s.(2) and provides the cases where the complaint case shall be tried separately, under the procedure applicable to a complaint case and the said cases are (i) where though the facts are common, the police report does not proceed against the accused named in the complaint case at all; or (ii) where the Magistrate does not take cognizance of any offence at all on the police report. In AIR 1980 SC 1780 (Kewal Krishan vs. Suraj Bhan), the Supreme Court observed "Where two cases exclusively triable by the Court of Session, one instituted on a police report under s. 173 Cr.P.C. and the other initiated on a complaint, arise out of the same transaction, if the two cases are tried by two different courts, there is a risk of two courts coming to conflicting findings. To obviate such a risk, it is ordinarily desirable that the two cases should be tried separately but by the same Court." In 27 CWN 700 (Judisthir Gope vs. Shekh Samir), two counter-cases were made over to two different Magistrates for trial and both the Magistrates proceeded with the trials and the Calcutta High Court held that it was desirable that both the cases should be tried by one Magistrate and not by different Magistrates simultaneously. In 1985 Cr.LJ 1936 (Govinda Menon vs. Muhammed Unni Haji, the Kerala High Court held: "The procedure prescribed under s. 210 relate to enquiry or trial of two cases, one instituted on a private complaint and the other based on police report, in respect of the same offence and the statutory fiction that both the cases should be deemed to be instituted as if they were instituted on a police report is intended to unable a clubbing of the two cases and a joint enquiry or trial. It is meant to provide statutorily the procedure for trial and not to divest the parties of their substantive right of appeal or revision against the order passed after the conclusion of the trial or enquiry. The two cases do not lose their separate identity". In 1987 Cr.LJ 1225 (Kadiresan vs. Kasim), there was a complaint case registered under s. 147, 332, 355 and a police case registered under Ss. 147, 341 and 323 IPC in respect of the same occurrence, and the complainant had, by a petition filed prior to the end of the trial and pronouncement of the judgment, drawn the attention of the Magistrate about the necessity to keep the identity of each case separately but the Magistrate after passing order for clubbing the complaint case with the police case framed charges for offences under Ss. 147, 332 and 335 IPC and after perusing the evidence produced by the Public Prosecutor and after hearing the Counsel acquitted the accused while at the same time rejected the applications of the complainant filed during trial to adduce evidence in support of his complaint case. On revision the Madras High Court after relying on the Supreme Court decision in Harjinder Singh's case (supra), held that the trial Court had committed a gross error affecting the interest of justice in both the cases because while ordering that both the cases would be clubbed in respect of that occurrence had practically merged them which it had no jurisdiction to do. It further held, "As per s. 210, the merging of the cases was not contemplated. What was contemplated was only that the cases be tried together. The order of the Magistrate clubbing the complaint case with the police case did not amalgamate them and reduce them only to one case. Therefore, the two cases continued to exist separately. There could not be amalgamation of cases when joint trial was permitted. .................. The manner in which a complainant may appear before the Court is not a matter which is governed by s. 210(2), Cr.P.C. From the reading of Ss. 301 and 302 Cr.P.C. it is clear that the prosecution is not done exclusively by the Public Prosecutor................ There could not be amalgamation of cases when joint trial was permitted. .................. The manner in which a complainant may appear before the Court is not a matter which is governed by s. 210(2), Cr.P.C. From the reading of Ss. 301 and 302 Cr.P.C. it is clear that the prosecution is not done exclusively by the Public Prosecutor................ When the Assistant Public Prosecutor enters appearance only in respect of the case taken of file on the police report, the complainant cannot adduce any evidence in respect of that case except under the directions of the Assistant Public Prosecutor as provided under s. 301 Cr.P.C. But as far as the case filed by way of private complaint is concerned, it is not only the right but also the duty of the complainant to adduce his evidence and the Magistrate is wrong in not accepting the evidence, the complainant wanted to adduce." In 1993 Cr.LJ 1274 (Nunaram vs. State of Rajasthan), the Rajasthan High Court had occasion to deal with the applicability of s. 210. The Court held that s. 210 does not cover a case where after the police charge is filed, an aggrieved person approaches a criminal court with a private complaint with a slightly different version of the same transaction of implicating more persons than are found as accused in the police charge. 10. Incidentally, reference can also be made to the decision of the Orissa High Court reported in 1981 Cr.LJ 541 C.M. Paradhe v. Jadu Nani wherein the Orissa High Court held that under s. 210(2) the complaint must be deemed to be police report in regard to the accused persons common to both the cases namely the complaint case and the police case, but the accused persons who are not involved in police case can be proceeded against under s. 210(3). 11. Reference can also be made to a decision of the Madras High Court reported in 1983 Cr.LJ 494, C. Naiken vs. Rangha Swami. 11. Reference can also be made to a decision of the Madras High Court reported in 1983 Cr.LJ 494, C. Naiken vs. Rangha Swami. In this case, there was a complaint case and a police investigation in respect of the same offence arising in course of the same transaction and it was held that a joint trial of the accused named in the police report and the accused named in the private complaint was permissible even though the accused in the police report may not all be the same as those in the complaint particularly when no prejudice is caused to them. 12. The point for my consideration would be whether, in the facts and circumstances of this case, the impugned order should be set aside as prayed for on behalf of the petitioners modified otherwise as suggested on behalf of the opposite party No. 1. 13. The FIR or the complaint that was lodged by the opposite party No.1 has not been placed before this Court. The police report that was submitted after investigation of the police case registered on the basis of the FIR has also not been placed before this Court. From the order dated 14.1.87 passed by the learned Sessions Judge in Criminal Motion No. 99 of 86 (which forms part of the supplementary affidavit that has been filed on behalf of the petitioners), it will be revealed that the learned Sessions Judge had occasion to compare the prosecution versions as set out in the police case and the complaint case and on such comparison the learned Sessions Judge came to a definite finding to the effect that the said versions were not materially different, contradictory and mutually exclusive. It will further transpire from that order that the learned Sessions Judge took into account the fact that there were some omissions in one case and additions in the other case. The facts, according to him, in both the cases were more or less the same and, accordingly he was of the opinion that the Supreme Court decision in the Harjinder Singh's case reported in 1986 Cr.LJ 831 has no application to the instant case. The facts, according to him, in both the cases were more or less the same and, accordingly he was of the opinion that the Supreme Court decision in the Harjinder Singh's case reported in 1986 Cr.LJ 831 has no application to the instant case. This finding of the Sessions Judge recorded in the Criminal Motion No. 99 of 86 regarding the fact that the prosecution versions in the police case and the complaint case were not materially different, contradictory and mutually exclusive does not appear to have been disturbed by the impugned order of the Additional Sessions Judge in the subsequent Criminal Motion No. 88 of 1989. The impugned order does not indicate anything to suggest that the learned Additional Sessions Judge took a view contrary to the aforesaid finding of the Sessions Judge recorded in Criminal Motion No. 99 of 1986. It is true that under s. 386(e) of Cr.P.C., the revisional court has jurisdiction to make any amendment or any consequential or incidental order that may be just and proper but certainly he had no jurisdiction to sit in appeal over the judgment of the Sessions Judge in the earlier criminal motion No. 99 of 1986. In the circumstances, we can take it for granted that the prosecution versions in the police case and the complaint case were not materially different, contradictory and mutually exclusive. In Harjinder Singh's case, the Supreme Court found that the prosecution case as set out in the complaint is at complete variance with that in the police challan and in such view of the matter, the Supreme Court held that it is not permissible for the Court under s. 223 to club and consolidate the complaint case and the police case when they are materially different, contradictory and mutually exclusive. That was the reason why in view of the peculiar facts of that case, the Supreme Court felt that the proper course to adopt was to direct that the two cases should be tried together but not consolidated and gave the guidelines as to how the matter is to be proceeded with in paragraph 7 of the Judgment reported in 1986 Cr.LJ 831. But in the instant case, we are faced with a different situation. But in the instant case, we are faced with a different situation. There is no doubt that the incident involved in both the cases is one and the same and the persons accused appear to have been involved in the same offence arising in the course of the same transaction. After all, the foundation for the charge is one and the same and it is only just and proper that there should be one trial unless of course such a course is likely to cause prejudice to the accused. Section 210 is meant for the benefit of the accused persons. What happened in the instant case was that while the investigation of the police case was in progress, the complaint case was filed. Such a situation was meant to be governed by sub-s. (1) of s. 210. But, eventually it was not brought to the notice of the learned Magistrate that the investigation by the police was in progress in relation to the offence which constituted the subject matter of the complaint case of which the learned Magistrate was in seisin. As such, there was no occasion to stay the proceeding of the complaint case as contemplated under sub-s. (1). But it is true that technically speaking, sub-s. (2) of s. 210 would be attracted only when an action under sub-s. (1) was taken. In the instant case no stay was granted. But nevertheless, police submitted the report in final after completing the investigation and the Magistrate took cognizance on such report of the offences complained of against some of the persons who are accused in the complaint case. As such, even though sub s. (2) of s. 210 may not strictly apply to the instant case in view of the fact that there was no stay of the complaint case under sub-s. (1) but then, under S. 223 of the Cr.P.C., it would be permissible for the Court to club and consolidate the police case and the complaint case. The only question that awaits our determination is whether by such a single trial of both the police case and complaint case, any prejudice is likely to be caused to either party. The prejudice may not be caused to the accused but it may be caused to the de facto complainant namely the opposite party no. The only question that awaits our determination is whether by such a single trial of both the police case and complaint case, any prejudice is likely to be caused to either party. The prejudice may not be caused to the accused but it may be caused to the de facto complainant namely the opposite party no. 1 if he can establish the fact that by reason of such clubbing of the two cases or, in other words, amalgamation of the two cases, the complaint case would lose its separate identity and the de facto complainant would be left with no scope to bring to book the seven accused persons who have not been sent up in the police challan. Now, according to the revisional application, the charges were already framed against all the 11 accused persons involved in the complaint case on 27.5.87 in trial no. 58 of 1986 and this fact has not been controverted on behalf of the opposite party no. 1. As such, it is not understood how the de facto complainant, or for the matter of that, the prosecution is going to be prejudiced in case the two cases are clubbed together and are tried in a single trial in accordance with the procedure meant for trial of a case instituted on a police report. That being the position, in view of the provisions of Ss. 301 and 302 of Cr. P.C. and in view of the Division Bench decision of our High Court reported in 1988 Cr. LJ 278 (Re : Rakhan Ozha), the lawyer engaged by the opposite party no. 1 can have no right of audience except what is specifically provided in s. 301 and 302 of the Cr.P.C. The ld. Chief Judicial Magistrate can, therefore, be said to have been justified in refusing to allow such a right of audience to de facto complainant's private lawyer by his order dated 9.6.89 and consequently, it cannot be said that the ld. Additional Sessions Judge was justified in giving such right of audience to the private lawyer engaged by the opposite party no. 1 reversing the course of action that was suggested by the ld. Sessions Judge by his order dated 14.1.87 in Criminal Motion No. 99 of 1986 in relation to the prayer for tagging of the two cases. 14. Additional Sessions Judge was justified in giving such right of audience to the private lawyer engaged by the opposite party no. 1 reversing the course of action that was suggested by the ld. Sessions Judge by his order dated 14.1.87 in Criminal Motion No. 99 of 1986 in relation to the prayer for tagging of the two cases. 14. Thus, giving the matter my anxious consideration and having regard to the principles of law laid down by different High Courts including the Supreme Court in the decisions referred to above in the light of the particular facts and circumstances of the present case, I am of the view that the impugned order cannot be legally sustained. In such view of the matter, the impugned order is liable to be set aside and is hereby set aside. In the result, the revisional application succeeds and is hereby allowed. 15. The Trial Court shall proceed with the trial of both the police case and the complaint case in terms of the order dated 14.1.87 passed by the ld. Sessions Judge in Criminal Motion No. 99 of 1986. The Trial Court is hereby directed to proceed with the trial in accordance with law as expeditiously as possible and preferably within a period of three months from the date of the communication of this order. Let this order be communicated to the Trial Court forthwith. Revision allowed and impugned order set aside with directions.