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2001 DIGILAW 851 (PAT)

Ram Bilash Tadav v. State Of Bihar

2001-09-10

A.K.SINHA

body2001
Judgment A.K.Sinha, J. 1. The present application has been filed for quashing the order dated 28.6.2000 passed by 4th Additional Sessions Judge, Darbhanga in Criminal Revision No. 19 of 1997, whereby he dismissed the revision filed by the petitioner against the order dated 2.12.1996 passed by Shri K.M. Tiwary, Judicial Magistrate, 1st Class. Darbhanga in T.R. Case No. 712 of 1996, by which the learned Magistrate has refused to amalgamate the aforesaid case with complaint case, vide C.R. No. 101 of 1994 under the provision of Section 210 of the Code of Criminal Procedure. 2. The relevant facts concerning the present application are that one Pitambar Yadav filed written report before the Officer- in-Charge, Sadar Darbhanga on 2.1.94 against 16 accused persons alleging therein that on 2.1.94 at 7.00 p.m. he learnt that the accused persons are harvesting Kharhi crops from his land, so he went to the field along with one Thithar Yadav, Kumber Yadav and Bhim Yadav and restrained the accused persons from harvesting the crops in question, but they did not listen and assaulted the informant and the witnesses, namely, Thithar Yadav and Yogi Yadav. The informant and the injured persons fled away and the accused persons took away the Kharhi crops. Thereafter, it is alleged that Jagdish who is driver of the tractor of one Ram Babu Yadav demolished the grocery shop of Bhutar Yadav and all the accused took away the articles kept in the shop. They also damaged the tea shop of one Brahmdeo Yadav and also took away the betel shop belonging to the informant in which Phillips radio, cash and other articles were kept. It is further alleged that the accused took away buffalo which was tied up at the Bathan of one Ram Jatan Yadav along with a machine and two cycles. The witnesses to the alleged occurrence are the informant and other injured. The police investigated the case and submitted charge-sheet against all 16 accused persons under Sections 147, 447, 323, 427 and 379 of the IPC on 11.2.94, on the basis of which, cognizance was taken on the aforesaid counts. The witnesses to the alleged occurrence are the informant and other injured. The police investigated the case and submitted charge-sheet against all 16 accused persons under Sections 147, 447, 323, 427 and 379 of the IPC on 11.2.94, on the basis of which, cognizance was taken on the aforesaid counts. For the alleged occurrence of the sathe date, one Brahmdeo Yadav also filed complaint case bearing C.R. No. 101 of 1994 against 17 accused persons, in which the allegation against them were that the complainant was running grocery shop at Dhoi Chowk and was also running a tea shop adjacent to the grocery shop and on 2.1.94 all the 17 accused persons came on a tractor bearing No. BEG-1766 being variously armed and demolished both the shops of the complainant and took away articles including cash worth Rs. 48,450/- the details whereof have been given in the complaint petition. It is further alleged that accused Ram Babu Yadav looted away a tape recorded valued at Rs. 3,500/- belonging to the complainant. The complainant and his father, however, fled away from the scene and witnessed the occurrence from the side after concealing themselves. It is alleged that accused persons committed the aforesaid occurrence because prior to the alleged occurrence they looted away the Kharhi crops of Mahabir Yadav and since the complainant was agnatic relation of Mahabir Yadav, the accused persons committed the occurrence. The case was made over to Sri P.K. Upadhyaya, Judicial Magistrate, 1st class, Darbhanga who held enquiry under Section 202 of the Cr PC and found a prima facie case against all the 17 accused persons under Sections 147, 148, 448, 395 and 427 of the IPC and ordered for issuance of warrant of arrest against the accused persons. The complaint case was transferred to the file of Sri K.M. Tiwary where the police case was pending. The petitioners filed a petition under Section 210 of the Cr PC on 28.6.96 in the police case and prayed to amalgamate the complaint case with the police case but the prayer was rejected by the Magistrate. The petitioners preferred a revision against the order passed by the Judicial Magistrate, vide Criminal Revision No. 19 of 1997 which was also dismissed by the Additional Sessions Judge, Darbhanga who has relied upon a decision reported in 1997 (2) East Cr C 415 (Suresh Thakur & Anr. The petitioners preferred a revision against the order passed by the Judicial Magistrate, vide Criminal Revision No. 19 of 1997 which was also dismissed by the Additional Sessions Judge, Darbhanga who has relied upon a decision reported in 1997 (2) East Cr C 415 (Suresh Thakur & Anr. v. State of Bihar & Anr.) and was of the view that since one of the accused of the complaint case is not the accused in the police case, the two cases cannot be amalgamated and both the cases would be tried separately. 3. The learned counsel appearing for the petitioner submitted that the orders passed by both the Courts below are illegal because the petitioners are sought to be tried in two different cases for the same offence which is not permissible under the law and it is abuse of the process of the Court. The learned counsel submitted that in sum and substance the occurrence of both the cases are same except that one accused has been added in the complaint case with allegation that he took away a tape recorder of the complainant valued at Rs. 3,500/-. 4. The provision of Section 210, Cr PC may usefully be quoted as hereunder : (1) When in a case instituted otherwise than on a police report (hereinafter referred to as 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 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 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. 5. The learned counsel submits that sub-section (2) of Section 210 of the Cr PC makes it amply clear that whenever it is made to appear to the Magistrate that an investigation by the police is in progress in relation to the same offence which is subject-matter of the inquiry held by him, the Magistrate shall stay the proceeding of such inquiry or trial and call for a report from the police conducting the investigation and if the report is made by the investigating officer under Section 173 and cognizance has been taken on such report by the Magistrate against any person who is also an accused in a complaint case, the Magistrate shall enquire into or try together the complaint case and the case arising out of police case as if both the cases were instituted on a police report. It was, therefore, submitted that Courts below have committed illegality in not amalgamating the police case and the complaint case which arise out of the same occurrence. 6. After having heard the learned counsel for the petitioner and perusing the record, I find that there is material difference between the case which was instituted on the police report and the complaint case which was instituted by one Brahmdeo Yadav, which may be illustrated in short as hereunder : (i) There were only 16 accused persons in the police case which was instituted by one Pitamber Yadav whereas there are 17 accused persons in the complaint case which was instituted by Brahmdeo Yadav. (ii) There is allegation of harvesting Kharhi crops from the land of the informant against the accused persons named in the FIR to which the informant was a witness and there is also allegation of assault to the informant and the witnesses but there is no such allegation in the complaint petition. (iii) Accused Ramdeo Yadav has not been named in the police case but there is allegation against him in the complaint case that he looted away a tape recorded belonging to the complainant valued at Rs. 3,500/-. (iii) Accused Ramdeo Yadav has not been named in the police case but there is allegation against him in the complaint case that he looted away a tape recorded belonging to the complainant valued at Rs. 3,500/-. (iv) The detail description of articles taken away by the accused persons have not been mentioned in the police case whereas the details of the articles taken away by the accused persons have been mentioned in the complaint petition. (v) There is allegation in the police case that the accused persons took away two cycles, machine and also took away buffalo belonging to the informant but there is no such allegation in the complaint petition. 7. It would, therefore, appear that there are material difference between the facts of the police case and the complaint case. 8. It is well settled principle of law that a case instituted on the basis of the police report and the complaint case can be clubbed together for the purpose of inquiry or trial only when the accused in both the cases are common and the allegations are also same but where the allegations are different and the accused are not common both the cases cannot be amalgamated. 9. In the case of Manikandan v. Pandian and others, reported in 1989 Supp (2) SCC 648, it was held that "on the facts and circumstances of the case two cases cannot be consolidated and tried together though the case instituted on private complaint is in respect of the same offence for which the charge-sheet has been filed against the first accused". The Apex Court held that it would be proper to record the evidence separately in both the cases unless the witnesses are common and the cases be tried one after another. Their Lordship relied upon the principle laid down in the case of Harjinder Singh v. State of Punjab, reported in (1985) 1 SCC 422 : 1985 East Cr C 120 (SC), wherein it was held that "where the prosecution as set out in the complaint is at complete variance with that in the police challan, it is not permissible for the Court under Section 223 of the Code to club and consolidate the case on a police challan and the case on a complaint where the prosecution versions in the police challan case and the complaint case are materially different, contradictory and mutually exclusive. Their Lordship, however, directed that both the cases be tried together. 10. Relying upon the aforesaid decisions, I am of the definite view that since there are material difference in the police case instituted by Pitamber Yadav and the complaint case instituted by Brahmdeo Yadav as stated in the earlier paragraphs and there is variance in the number of accused arrayed in both the cases, it was not permissible under the law to amalgamate both the case. As such, the learned Magistrate as also the learned Additional Sessions Judge were justified in rejecting the prayer of the petitioner to amalgamate both the cases and their orders do not require any interference. However, it is directed that both the cases may be tried one after other. 11. In the result, therefore, I do not find any merit in this application and it is accordingly, dismissed.