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2010 DIGILAW 331 (PAT)

Md. Kadir @ Abdul Kadir v. State Of Bihar

2010-03-11

SHEEMA ALI KHAN

body2010
JUDGEMENT 1. The petitioners are aggrieved by the order dated 23.3.2009 passed in C. R. No. 233 of 2009 by which the Chief Judicial Magistrate, Madhubani has issued process against the petitioners for facing trial for the offences under Sections 302, 307, 120-B/34 of the Indian Penal Code. 2. The facts are that one Punam Devi filed a Complaint Case No. 233 of 2009 in which she has stated that her husband Gunanand Chaudhary was returning home from Darbhanga with his villager Hassamul Haque @ Rahat when he was intercepted and killed by certain persons. At paragraph 8 of the complaint petition, it has been stated that the Police had recorded a First Information Report lodged by Md. Hassamul Haque @ Rahat and after putting Rahat under pressure, only three persons had been made accused in this case whereas apart from Md. Kadir, Manikant Jha and Md. Kari, there were other persons involved in the occurrence. At paragraph 9 of the complaint petition, it has been stated that the police has submitted charge sheet against the informant Hassamul Haque @ Rahat and final form against the named accused persons. The complainant who is the wife of the deceased approached the Officer-in-charge for lodging the case which he refused to do so as a result of which she has filed this complaint case. 3. After conducting enquiry, the Court below has taken cognizance in the complaint case under Sections 302,307,120-B/34 of the Indian Penal Code and Section 27 of the Arms Act finding that the eight named persons in the complaint petition are responsible for the alleged offence of murder of the husband of the complainant. 4. The petitioners in this case are Md. Kadir, Manikant Jha and Md. Kari who were made accused in Pandaul (Sakari) Police Station Case No. 414 of 2008 and against whom final form was submitted by the Officer- in-charge of the Police Station. 5. Before dealing with the arguments made on behalf of the petitioners, it would be relevant to bring on record the facts with respect to Pandaul (Sakari) Police Station Case No. 414 of 2008 dated 3.12.2008. The informant of this case is Md. Hassamul Haque @ Rahat. He has given his written fardbayan before the Investigating Officer in which he has stated that while he was returning on a motorcycle alongwith the deceased Gunanand Chaudhary, they were intercepted by Md. The informant of this case is Md. Hassamul Haque @ Rahat. He has given his written fardbayan before the Investigating Officer in which he has stated that while he was returning on a motorcycle alongwith the deceased Gunanand Chaudhary, they were intercepted by Md. Kadir, Manikant Jha and Md. Kari. Md. Kadir and Md. Kari who were armed with revolvers and who fired at Gunanand Chaudhary, whereupon he fell down from the motorcycle. The informant ran for help and reached the Police Station informing them of the occurrence. As stated earlier, this case was investigated and final form was submitted as far as the named accused persons were concerned and charge sheet was submitted against the informant Md. Hassamul Haque @ Rahat. The Court below has deferred with the charge sheet and has taken cognizance on the basis of the materials in the case diary against the named accused persons Md. Kadir, Manikant Jha and Md. Kari and the informant Hassamul Haque. 6. I may make a note that in the order dated 2.11.2009 passed in Pandaul (Sakari) Police Station Case No. 414 of 2008, the Court below has noticed that a complaint petition has been filed in which cognizance has been taken and the accused persons are facing trial in Sessions Trial No. 222 of 2009. 7. The only point raised on behalf of the petitioners is that the Court hearing the complaint petition ought to have followed the procedure under Section 210 of the Code of Criminal Procedure, which reads as follows : "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 tried 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 enquiry or trial, which was stayed by him, in accordance with the provisions of the Code." 8. The object of enacting Section 210 of the Code of Criminal Procedure is three-fold; (i) It is intended to ensure that private complaints do not interfere with the course of justice; (ii) It prevents harassment to the accused twice; and (iii) it oblivates anomalies which might arise from taking cognizance of the same offence more than once. It is, thus, clear that before Section 210 of the Code of Criminal Procedure can be invoked in the following conditions: (i) There must be a complaint pending for enquiry or trial; (ii) Investigation by the police must be in progress in relation to the same offence; (iii) The report must have been made by the Police Officer under Section 173 of the Code of Criminal Procedure; and (iv) The Magistrate must have taken cognizance of an offence against the person who is accused in the complaint case. 9. In the present case, the facts are that the First Information Report was instituted on 31.12.2008, the charge sheet/final form was submitted on 30.3.2009 and cognizance was taken on 2.11.2009 whereas the complaint was instituted on 18.2.2009 and cognizance was taken on 23.3.2009. Sub-section (1) of Section 210 of the Code of Criminal Procedure requires that when a complaint is filed and the Magistrate comes to know or it is made apparent during enquiry that with respect to the same case, investigation by the Police is in progress in relation to the offence which is the subject matter of enquiry or trial, the Magistrate will call for a report on the matter from the Police Officer conducting the investigation. As far as sub-section (1) of Section 210 of the Code of Criminal Procedure is concerned, it is correct to say that the Court knew that such a Police case had been filed for the same offence (i.e. murder of Gunanand Chaudhary). Sub-section (2) of Section 210 of the Code of Criminal Procedure further requires that if a report is made by the Investigating Police Officer under Section 173 of the Code of Criminal Procedure 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 enquire into and try together the complaint case and the case arising out of police report as both were instituted on a police report. The facts reveal that the investigation was only completed on 30.3.2009 under Section 173 of the Code of Criminal Procedure, whereas much before the charge sheet could be submitted in this case, cognizance was taken in the complaint case. It is submitted that the Court ought to have stayed its hands and waited for the report under Section 173 of the Code of Criminal Procedure and tried both the cases as one especially in view of the fact that some of the accused are common, both in the complaint case and the police case. Subsection (3) of Section 210 of the Code of Criminal Procedure further provides that 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 enquiry or trial which was stayed by him in accordance with the provisions of the Code of Criminal Procedure. The object being that the accused ought not to be harassed twice by separate trials for an offence which is common both to the complaint case and the police case. It is true that the cognizance was taken much before the report was submitted by the police under Section 173 of the Code of Criminal Procedure in the police case and it is equally true that the offence in both the cases is the same and at least three persons who are arrayed in the accused column are the same. 10. 10. However, since the informant is not same and apart from the petitioners, there are others who have to face trial, Section 210 of the Code of Criminal Procedure would not apply in a case of this nature. 11. The result is that the accused persons, namely, Md. Kadir, Manikant Jha and Md. Kari would have to face the trials in both cases for the same offence which would amount to harassment and defeat the provisions of Section 210 of the Code of Criminal Procedure. 12. Therefore, I find that it would serve the purpose of justice if the object of Section 210 of the Code of Criminal Procedure is achieved that is given in sub-section (2) of Section 210 of the Code of Criminal Procedure if the two cases are tried and heard one after the other, the Court below should record evidence in one case and stay its hand in pronouncing the judgment and then record the evidence in the second case and shall simultaneously dispose of the cases, in view of the fact that in the complaint case, apart from the aforesaid three named persons, there are other accused persons who have to face the trial. 13. In view of the aforesaid findings and directions, the prayer for quashing the order taking cognizance and issuing summons is rejected. 14. This application has been filed by the sole petitioner challenging the order dated 2.11.2009 passed in Pandaul (Sakari) Police Station Case No. 414 of 2008 by which the Chief Judicial Magistrate, Madhubani, differing with the final form, has taken cognizance for the offences under Sections 302,120-B of the Indian Penal Code and Section 27 of the Arms Act against the petitioner. 15. The point that has been raised on behalf of the petitioner is that once cognizance for the same offence has been taken in a Complaint Case No. 233 of 2009 against the petitioner, the Court below ought not have taken cognizance in this case for the same offence. 16. 15. The point that has been raised on behalf of the petitioner is that once cognizance for the same offence has been taken in a Complaint Case No. 233 of 2009 against the petitioner, the Court below ought not have taken cognizance in this case for the same offence. 16. I find that the point raised on behalf of the petitioner has to be rejected for the reason that Pandaul (Sakari) Police Station Case No. 414 of 2008 was the first report with respect to the alleged occurrence of murder and the subsequent complaint is with respect to the fact that the wife of the deceased was aggrieved with the informant and the Police had not recorded the names of all the persons who were responsible,for the occurrence in the First Information Report and as such at the most, this petitioner may argue that the complaint case be amalgamated with the Police case. However, this ground does not justify the quashing of the impugned order. 17. The second point raised on behalf of the petitioner is that the Chief Judicial Magistrate, Madhubani has not applied his mind while differing with the findings of the Investigating Officer. 18. On perusal of the order, I find that the Court below was very conscious of the fact that this petitioner has been exonerated by the Investigating Officer of this case and only after considering the materials in the case diary, the Court thought it fit to differ with the opinion of the Investigating Officer and has passed the order dated 2.11.2009. 19. I do not find any anomaly in the order impugned. This application is accordingly dismissed. 20. This case, however, will be covered by the directions given in Criminal Misc. No. 32002 of 2009.