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2003 DIGILAW 1444 (PNJ)

Mai Ram v. State of Haryana

2003-10-16

M.M.KUMAR

body2003
JUDGMENT M.M. Kumar, J. - This petition filed under Section 482 of the Code of Criminal Procedure, 1973 (for brevity, Criminal Procedure Code) is directed against the order dated 2.8.2003 (Annexure P-3) passed by the Judicial Magistrate Ist Class Karnal. The Magistrate by the impugned order has exercised power under Section 156(3) Criminal Procedure Code and has referred the complaint filed by the complainant-respondent against the petitioner-accused to the police. The Magistrate in his order has also referred to Section 210 Criminal Procedure Code for the reason that there is already FIR No. 134 dated 14.7.2003 registered under Sections 323/324 Indian Penal Code registered at Police Station Butana in respect of the same occurrence. The allegations in the aforementioned first information report are that there was a dispute between Mai Ram petitioner-accused and one Ram Kishan regarding a piece of land and Mai Ram succeeded in Civil litigation in tehsil Court, Indri. A warrant of possession was issued and the police help was also taken. The Kanungo and Patwari had reached at the spot and the process of marking the land was in progress. Puran Chand complainant- respondent 2 is alleged to have come at the spot and raised a threat that he wont allow the demarcation of land by marketing (marketing ?) it. He stopped the process of demarcation and brought a gandassi from his house. He is alleged to have stated that he would teach a lesson to the petitioner-accused and others and hit one Pawan Kumar with the gandassi. It is further alleged that when Mai Ram petitioner-accused tried to save Pawan Kumar, the gandassi hit on his head with its reverse side. When the petitioner-accused attempted to take away the gandassi, he again gave a blow of gandassi to Ram Phal which hit him on his finger and back. In this way minor injuries were suffered by Puran Chand also. Sham Lal and Amarjit have been cited as eye witnesses. 2. On 2.8.2003, complainant-respondent Puran Chand filed a complaint before the Magistrate under Sections 323, 325, 447, 506, 148 and 149 Indian Penal Code against nine persons in respect of the same incident which had occurred on 14.7.2003. The Magistrate entertained the complaint and by exercising powers under section 156(3) Criminal Procedure Code sent the same to the police for investigation. The order dated 2.8.2003 passed by the Magistrate reads as under :- "Complaint present today. The Magistrate entertained the complaint and by exercising powers under section 156(3) Criminal Procedure Code sent the same to the police for investigation. The order dated 2.8.2003 passed by the Magistrate reads as under :- "Complaint present today. It be checked. Heard. In pursuant to the 210, concerned under section 156(3) Criminal Procedure Code for registration and investigation of the case. File be sent to the SHO concerned." 3. On the basis of the direction issued by the Magistrate, the police have registered FIR No. 206 dated 4.10.2003 under Sections 323, 325, 447, 506, 148, 149 Indian Penal Code. The complainant has given cross version with regard to incident dated 14.7.2003 and the injuries suffered by him. He was taken to the Primary Health Centre Neelon Kheri but on account of presence of the petitioner- accused and other co-accused and in order to avoid any further conflict, the complainant-respondent 2 was medico-legally examined at Civil Hospital, Karnal. On account of his serious condition, x-ray was also conducted at Civil Hospital, Karnal and the doctors recommended C.T. Scan which was conducted at Patel Nursing Home, Karnal. The medical report clearly shows the fracture of head bone near the left ear. Despite reporting of the matter to the police of police station Butana, the first information report was not recorded. It is claimed that instead, police have recorded false FIR No. 134 dated 14.7.2003 under Sections 323 and 324 Indian Penal Code against complainant-respondent 2. When complainant-respondent 2 failed to get a first information report recorded, he filed a complaint before the Magistrate which resulted into passing of the impugned order dated 2.8.2003. 4. Mr. Vikram Singh, learned counsel for the petitioner has argued that according to provisions of Section 210 Criminal Procedure Code, if the Magistrate receives a complaint in respect of the same incident, then it is obligatory for the Magistrate to stay any action on such a complaint by taking cognizance. According to the learned counsel, the Magistrate, instead of staying action on the complaint has taken cognizance when the investigation is already going on in case FIR No. 134 dated 14.7.2003 filed by the petitioner-accused under Sections 323 and 324 Indian Penal Code. According to the learned counsel, the Magistrate, instead of staying action on the complaint has taken cognizance when the investigation is already going on in case FIR No. 134 dated 14.7.2003 filed by the petitioner-accused under Sections 323 and 324 Indian Penal Code. In support of his submissions, the learned counsel has placed reliance on a judgment of Andhra Pradesh High Court in the case of Annadata Chandra Sekhar Rao and Another v. Battiprolu Venkata Basaya Subba Rao and another, 2003(3) RCR(Criminal) 729 and argued that such a course is not available to the Magistrate, who should have stayed taking of any action under Section 156(3), Criminal Procedure Code on the complaint. 5. After hearing the learned counsel, perusing both the first information reports and the impugned order, I do not find any legal infirmity in the impugned order passed by the Magistrate. In order to appreciate the controversy, it would be necessary to make a reference to Section 210 Criminal Procedure Code which reads as under :- "210. Procedure to be followed when there is a complaint case and police investigation in respect of the same offence - (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. (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." 6. (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." 6. A perusal of sub-section (1) of Section 210 Criminal Procedure Code shows that there is a bar on the power of the Magistrate and he must stay the proceedings of an enquiry or trial on the basis of a complaint filed in respect of the same incident if the Magistrate is appraised that investigation by the police relating to that very offence was in progress. In other words, the Magistrate cannot take cognizance by proceeding with the complaint, e.g. by recording preliminary evidence under Section 200 Criminal Procedure Code or by issuing process. Sub- section (2) of Section 210 Criminal Procedure Code further shows that if the police have submitted a report under Section 173 Criminal Procedure Code and Magistrate takes cognizance of any offence on the basis of such report against any person, who is also accused in the complaint case kept pending by the Magistrate, then he is under an obligation to try/enquire together the complaint case and the case arising out of the police report as if both the cases were instituted on a police report. Sub-section (3) of Section 210 Criminal Procedure Code also shows that if the police report does not relate to any accused disclosed in the complaint case or he refuses to take cognizance of any offence on the basis of the police report, then the Magistrate shall proceed with the enquiry or trial which was stayed by him under sub-section (1) of Section 210 Criminal Procedure Code The aforementioned provision does not create any bar on the powder of the Magistrate to refer the complaint to the police for investigation by exercising powers under Section 156(3) Criminal Procedure Code because by doing so, he is neither holding any enquiry nor a trial. The bar is created by Section 210 Criminal Procedure Code in cases where the Magistrate has taken cognizance and has already proceeded to hold an enquiry or trial on the basis of the complaint. In the instant case, the Magistrate was neither holding any trial nor he was conducting any enquiry in a complaint case. The bar is created by Section 210 Criminal Procedure Code in cases where the Magistrate has taken cognizance and has already proceeded to hold an enquiry or trial on the basis of the complaint. In the instant case, the Magistrate was neither holding any trial nor he was conducting any enquiry in a complaint case. However, the complaint was presented before him which disclosed that a first information report has been lodged against complaint-respondent 2 with regard to incident of 14.7.2003. The Magistrate did not prefer to record any preliminary evidence under Section 200 Criminal Procedure Code and refused to take any cognizance. He referred the complaint under section 156(3) Criminal Procedure Code, to the police for investigation. On bare reading of Section 210 Criminal Procedure Code, no violation has been revealed. It is further pertinent to mention that bear created by Section 210 Criminal Procedure Code is not absolute because if there is unnecessary delay, the complaint case cannot be stayed indefinitely. There is ample authority for the aforementioned proposition and reference can be made to the judgment of Orissa High Court in the case of Padmalochan Sahu v. Loknath Sethi, 1981 Cr. LJ (Orissa) and Abhi v. Arjuna Charan Sutar, 1995(3) Crimes 607 (Orissa). Therefore, the order is absolutely within the competence of the Magistrate and the instant petition is liable to be dismissed. 7. The judgment of Andhra Pradesh High Court in Annadata Chandra Sekhar Raos case (supra) relied upon by counsel for the petitioner does not advance his case because in that case, the Magistrate had taken cognizance of the complaint under sub-section (1) of Section 210 Criminal Procedure Code The bar under sub- section (1) of Section 210 Criminal Procedure Code is only to avoid any intermingling of the powers of the police with the powers of the Magistrate. If the police are allowed to investigate parallel to the enquiry/trial to be conducted by the Magistrate, then disastrous result could follow and there could be contradictory findings. The police would remain unable to explain at any subsequent trial on the basis of the police report about the conclusion recorded by the Magistrate on the basis of the trial/enquiry conducted by him taking cognizance of the complaint case. The police would remain unable to explain at any subsequent trial on the basis of the police report about the conclusion recorded by the Magistrate on the basis of the trial/enquiry conducted by him taking cognizance of the complaint case. However, the Magistrate does not violate the line of demarcation of power of the police as well as his own power by referring the complaint to the police under Section 156(3) Criminal Procedure Code Therefore, the judgment of Andhra Pradesh High Court in Anndata Chandra Sekhar Raos case (supra) is not applicable to the facts of the present case. For the reasons recorded above, this petition fails and the same is dismissed. Petition dismissed.