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2012 DIGILAW 49 (CHH)

RAVINDRA TIWARI v. STATE OF CHHATTISGARH

2012-02-03

MANINDRA MOHAN SHRIVASTAVA

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JUDGMENT Manindra Mohan Shrivastava, J. [1] This petition under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code") involves determination of an important issue relating to scope and ambit of provision contained in Section 210 of the Code. The question which arises for consideration is whether in a contingency where the police report in respect of an offence has been filed and cognizance taken by the Magistrate and then committed for trial, it being a case of offence exclusively triable by the Court of Session, filing of a complaint subsequent thereto in respect of the same offence, provision contained in Section 210 of the Code would be attracted to mandate stay of trial? Quintessential facts, as glean from the record of the case, are that on the allegation of commission of offence under Section 306 read with Section 34 of the IPC, crime under Crime No. 308/2010 was registered by Police Station Dongargarh. The investigation was carried out and upon completion of investigation, charge-sheet under Section 173 of the Code was submitted before the Judicial Magistrate First Class Dongargarh by the police. The substance of allegation, as reflected from the final report, are that the deceased Brijesh Tiwari had an affair with one Bhavna Shrivastava and both of them fled away to Mahasamund and returned after 15 days. Thereafter, Brijesh Tiwari and Bhavna were living in their respective home, but, accused - Vijay Mishra, Chandrakant alias Tinku Meshram and Rahul Pandey started intimidating Brijesh and forced him to bring to an end his relation with Bhavna. It is alleged that harassed by such threat by the three accused, Brijesh committed suicide by consuming poison. The Magistrate having taken cognizance and found that offence is exclusively triable by the Court of Session, committed the case for trial to the Sessions Court, leading to registration of Sessions Trial No. 3/10 (State of Chhattisgarh v. Chandrakant alias Tinku Meshram & Ors. ). [2] When the matter stood thus, the petitioner, who is the brother of deceased Brijesh, filed a complaint before the Judicial Magistrate-Dongargarh against three accused of S. T. No. 3/10 as also against - Rajkumar Thuthawa, Krishna Shrivastava, Govind Shrivastava and Ravi Shrivastava, alleging commission of offence under Sections 302, 34, 120B of the IPC. ). [2] When the matter stood thus, the petitioner, who is the brother of deceased Brijesh, filed a complaint before the Judicial Magistrate-Dongargarh against three accused of S. T. No. 3/10 as also against - Rajkumar Thuthawa, Krishna Shrivastava, Govind Shrivastava and Ravi Shrivastava, alleging commission of offence under Sections 302, 34, 120B of the IPC. According to the complainant/petitioner herein, though report was lodged alleging murder of Brijesh, against all the accused stated in the complaint, police did not carry out proper investigation and it registered offence only against three persons namely - Chandrakant alias Tinku, Rahul and Vijay Kumar Mishra and submitted charge-sheet alleging commission of offence under Sections 306, 34 of the IPC only, whereas, according to the petitioner, the accused stated in the complaint are guilty of having committed murder of Brijesh. The Judicial Magistrate proceeded to examine the complaint on oath and recorded preliminary statements of complainant's witnesses. [3] At this stage, the petitioner filed two applications in the pending sessions trial, one being an application under Sections 301(2) & 302 of the Code and other being an application purporting to be under Section 120 of the Code. Both the applications were decided by the Sessions Judge vide its order dated 2-8-2011. While the application under Section 301(2) of the Code was allowed, the petitioner's application under Section 210 of the Code was rejected by stating that there are no sufficient grounds to stay the proceedings. Prayer of the petitioner is that the complaint has been filed in respect of the same incident arising out of which sessions trial is pending, therefore, the trial should be stayed, otherwise in respect of the same incident, eventuality may arise to subject the accused to two cases arising out of the same incident and allegation. [4] Aggrieved by the order to the extent it seeks to reject petitioner's application under Section 210 of the Code, the petitioner seeks to invoke the inherent powers of this Court under Section 482 of the Code so as to secure the ends of justice. [4] Aggrieved by the order to the extent it seeks to reject petitioner's application under Section 210 of the Code, the petitioner seeks to invoke the inherent powers of this Court under Section 482 of the Code so as to secure the ends of justice. [5] The contention of learned counsel for the petitioner is that in the contingency prevailing in the present case, where in respect of an allegation of abetment of suicide, Session trial is pending against three accused for alleged commission of offence under Section 306 read with Section 34 of the IPC, petitioner filed complaint alleging commission of offence under Section 302 of the IPC not only against those three accused facing trial, but against some other accused who are alleged to be involved, provision of Section 210 of the Code are squarely attracted and mandate stay of trial. It was urged with vehemence that the spirit of the statutory scheme engrafted under Section 210 of the Code obliges the Court to stay the trial and await the outcome of the proceedings instituted upon complaint filed by the petitioner. In his submission, the police did not properly investigate into the report and though a case of commission of offence under Section 302 of the IPC is made out as against seven persons, the investigation by the police was misdirected, which culminated in filing of a charge-sheet under Section 173 of the Code impleading only 3 accused and that too for commission of offence under Section 306 read with Section 34 of the IPC. The petitioner, therefore, had to take recourse to the process of law by filing complaint before the Magistrate which is under inquiry. He advanced submission that once there is a complaint, arising out of the same incident, in the event Magistrate takes cognizance of offence under Sections 302, 34, 120B of IPC against all the accused in the complaint which includes those three who are already facing trial, the Magistrate would be obliged' to commit the case for trial to the Court of Session. If the trial which is pending is not stayed, an anomalous situation will come into existence where the Sessions Court may be required to re-hear the pending trial and further complications would arise if the three accused facing trial are either convicted or acquitted before completion of complaint proceedings. If the trial which is pending is not stayed, an anomalous situation will come into existence where the Sessions Court may be required to re-hear the pending trial and further complications would arise if the three accused facing trial are either convicted or acquitted before completion of complaint proceedings. Therefore, the interest of justice demands that further proceedings in the pending trial should be stayed till the outcome of the complaint proceedings, which may either culminate in dismissal or committal to Sessions Court for trial. In order to buttress his submissions, learned counsel for the petitioner relied upon the provisions contained in Section 210 (2) of the Code and decision in the cases of Namathoti Sankaramma v. State of A. P. & Ors., 2000 CrLJ 4831 , Joseph v. Joseph, 1982 CrLJ 595 & Dilawar Singh v. State of Delhi, 2007 AIR(SC) 3234). [6] On the other hand, learned counsel for the State/respondent No. 1 as also learned counsel for respondent Nos. 2 to 4 opposed the prayer and prayed for dismissal of the petition by submitting that the order impugned does not call for any interference, as the application under Section 210 of the Code itself is misconceived in law as well as on facts. It was argued that provision contained in Section 210 of the Code would be attracted only in the contingency specifically stated in the provision and not in any other contingency, much less in the contingency in which the application was filed in the present case. It is then submitted that Section 210 of the Code does not apply where session trial has already begun after committal of the case by the Magistrate on police report submitted by the police under Section 173 of the Code. It is not a case, it is argued, where the inquiry of trial is pending before the Magistrate and it is made to appear that an investigation in respect of the same offence is in progress. Present is a case where complaint case has been filed long after submission of charge-sheet and in such a case, none of the provisions contained in Section 210 of the Code would be attracted. [7] I have heard learned counsel for the parties and perused the records. Present is a case where complaint case has been filed long after submission of charge-sheet and in such a case, none of the provisions contained in Section 210 of the Code would be attracted. [7] I have heard learned counsel for the parties and perused the records. [8] In order to decide the controversy involved in the present petition, it would be opposite to examine relevant provisions contained in Section 210 of the Code, which is extracted as below: 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 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. [9] It is important to note that Section 210 of the Code, extracted hereinabove, is contained in Chapter XVI of the Code, which deals with commencement of proceedings before the Magistrate. Under Section 204 of the Code, the Magistrate is empowered to issue process. Section 209 of the Code provides for commitment of case to the Court of Session when offence is triable exclusively by such Court. Under Section 204 of the Code, the Magistrate is empowered to issue process. Section 209 of the Code provides for commitment of case to the Court of Session when offence is triable exclusively by such Court. Section 210, which follows thereafter in the same Chapter, provides the course of action to be adopted under the law by the Magistrate in certain contingency exhaustively enumerated in sub-section (1) thereof. The contingency which has been dealt with is that when a case is instituted otherwise than on a police report i. e. a complaint case, it is made to appear to the Magistrate, during the course of 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 of the matter from the police officer conducting the investigation. Therefore, for application of the provision contained in Section 210 of the Code, obliging Magistrate to stay proceedings of inquiry or trial which is being held by the Magistrate, there must be an investigation by the police in progress in relation to the offence which is the subject-matter of inquiry or trial. What logically follows from the aforesaid provision is that the power to stay the proceedings of inquiry or trial is available only when it is made to appear that investigation is in progress in relation an offence which is subject-matter of inquiry or trial. The provision does not deal with any other contingency or a situation, much less a situation where even before institution of a complaint case, investigation has been completed and a charge-sheet under Section 173 of the Code has also been filed upon which cognizance has been taken by the Magistrate and finding it to be a case relating to an offence exclusively triable by the Court of Session, already committed to the Court of Session. In other words, if on the date of filing of complaint, investigation by the police is not in progress and pending, provisions under Section 210 of the Code will have no application at all. In other words, if on the date of filing of complaint, investigation by the police is not in progress and pending, provisions under Section 210 of the Code will have no application at all. [10] Sub-sections (2) & (3) of Section 210 of the Code are not independent of sub-section (1) so as to say that they deal with the power of Magistrate in any other contingency than the one envisaged in sub-section (1) thereof. Both sub-sections (2) & (3) start with the opening word "if. This is indicative of legislative intention. Therefore, provision contained under Section 210 of the Code mandates course of action to be adopted by a Magistrate in a contingency where during the pendency of an inquiry or trial before the Magistrate, it is brought to the notice of the Magistrate that an investigation by the police is in progress in relation to that very offence, which is the subject-matter of the inquiry or trial held by him. In the contingency as stated in sub-section (1), it is obligatory on the Magistrate to stay the proceedings of inquiry or trial which is being held by him and call for a report on the matter from the police officer who is conducting the investigation. Sub-sections (2) & (3) deal with the further course of action to be adopted under the law, depending upon the report of the police officer. [11] If a report is made by the Investigating Officer under Section 173 of the Code and on such report cognizance of any offence is taken by the Magistrate against any person who is accused in the complaint case, the Magistrate is obliged to inquire into or try together the complaint case and the case arising out the police report as if both the cases were instituted on a police report. However, if the police report does not relate to any accused in the complaint case or if the Magistrate does not take cognizance of an offence on the police report, the Magistrate shall proceed with the inquiry or trial, which was stayed by him, in accordance with the provisions of the Code. [12] Therefore, sub-sections (2) & (3) do not deal with any other contingency than the one envisaged in sub-section (1). [12] Therefore, sub-sections (2) & (3) do not deal with any other contingency than the one envisaged in sub-section (1). The two sub-sections i. e. sub-sections (2) & (3) only deal with the course of action required to be adopted by the Magistrate depending upon the result of the police report which was called for by the Magistrate after staying the proceedings of inquiry or trial held by him in exercise of its power under sub-section (1) of Section 210 of the Code. As stated earlier, both sub-sections start with the word "if. It would also be amply clear by reading of subsection (3), which co-relates it with sub-section (1) by stating that the Magistrate shall proceed with the inquiry or trial, which was stayed by him. [13] Therefore, the legislative scheme which emerges from the aforesaid discussions is that in order to attract the provision contained under Section 210 of the Code and invest the Magistrate with the power to stay the proceedings of trial, the condition is that; on the date of filing of complaint, investigation by the police must be in progress and pending. Necessary corallary to the above proposition is where on police case cognizance has been taken and then complaint case is instituted, Section 210 of the Cr. P. C. will have no application, the power to stay the proceedings of the trial will not be available to the Magistrate. It is also interesting to note that Section 210 deals with the power of the Magistrate to stay the proceedings of inquiry and trial held by him and cannot be extended at the stage of session trial by moving an application before the Sessions Court, to exercise of power, exercisable by the Magistrate under Section 210 of the Code in an eventuality where during the progress of trial a complaint is filed before the Magistrate. The view taken by this Court finds support from the decision in the cases of Kalyan and Ors. v. State of U.P. and Ors., 1990 CrLJ 1658 , Sidhan and Ors. v. State of Kerala and another, 1986 CrLJ 470, Birendra Kumar Sharma alias Birendra Kuer v. The State of Bihar and Ors., 2000 CrLJ 145 , Gobinda Chandra Bora v. Amal Kumar Barpujari, 1995 CrLJ 1756 , Nunaram and Ors. v. State of Rajasthan and another, 1993 CrLJ 1274 and Prafulla Behera & Ors. v. State of Kerala and another, 1986 CrLJ 470, Birendra Kumar Sharma alias Birendra Kuer v. The State of Bihar and Ors., 2000 CrLJ 145 , Gobinda Chandra Bora v. Amal Kumar Barpujari, 1995 CrLJ 1756 , Nunaram and Ors. v. State of Rajasthan and another, 1993 CrLJ 1274 and Prafulla Behera & Ors. v. State & another, 2003 3 Crimes(Ori) 415. [14] The Full Bench of Kerala High Court in the case of Natesan v. Peethambharan, 1984 CrLJ 324 has also observed and taken the same view that Section 210 of the Code does not cover a case where after the police has filed the charge-sheet, an aggrieved person approaches a criminal Court with a private complaint with a slightly different version of the same transaction or implicating more persons than are found as accused in the police charge. [15] The submission of learned counsel for the petitioner that in a reverse situation i. e. where a charge-sheet is already filed and cognizance taken and then private complaint is filed, then also Section 210 of the Code would be attracted and the Magistrate is empowered to take recourse to provision contained in sub-section (2) of Section 210 of the Code is founded on the decision in the case of Namathoti. At the first place, the aforesaid decision dealt with a situation which is quite different from the factual aspects of the present case. In that case, complaint case was underway and investigation by the police was in progress in relation to the same incident about which the complaint case was filed but the Magistrate did not proceed in accordance with the provision contained in sub-section (1) of Section 210 of the Code. That was not a case where the case was already committed to the Sessions Court for trial and subsequent thereof, a complaint case was filed. The reliance placed by learned counsel for the petitioner in the case of Dilawar Singh v. STATE OF DELHI, 2007 AIR(SC) 3234 in support of his contention, is also misplaced. In that case, the Supreme Court has also observed that when it is made to appear before the Magistrate during the inquiry or the trial of a complaint that an investigation before the police is pending in the same matter, he is to stop the proceedings in the complaint case and call for a report from the police. In that case, the Supreme Court has also observed that when it is made to appear before the Magistrate during the inquiry or the trial of a complaint that an investigation before the police is pending in the same matter, he is to stop the proceedings in the complaint case and call for a report from the police. After the report is received from the police, he has to take up the matter together and if cognizance has been taken on the police report, he is to try the complaint case along with the case instituted upon police report as if both the cases are instituted upon police report. The aforesaid observation of the Supreme Court demolishes the very foundation of the submission of learned counsel for the petitioner. [16] In the result, I have to hold that the application under Section 210 of the Code filed before the Sessions Court itself was misplaced, as Section 210 of the Code had no application. Therefore, the order passed by the Court below does not appear to be illegal and no interference is called for. The petition has no merit. The same is liable to be dismissed and is accordingly dismissed. Petition dismissed.