Research › Search › Judgment

Allahabad High Court · body

2012 DIGILAW 81 (ALL)

LALA RAM v. STATE OF U. P.

2012-01-09

SURENDRA SINGH

body2012
JUDGMENT Hon’ble Surendra Singh, J.—The applicants by way of filing this application under Section 482 Cr.P.C. have sought to quash the impugned order dated 6.7.2011 passed in case No. 1167/2010, Brij Lal v. Lala Ram and others, under Sections 302, 201 and 120-B IPC passed by Chief Judicial Magistrate, Shahjahanpur. 2. Shorn of unnecessary details, the fact leading to the filing of this application, in brief, are: On 18.2.2010 the opposite party No. 2 Brij Lal lodged the First Information Report at police station Mirzapur, District Shahjahanpur under Section 304-A IPC in regard to the offence alleged to have committed by applicant No. 1 Lala Ram on 17.2.2010 at 12.00 in the mid night when wedding ceremony was alleged to be going on the applicant No. 1 is said to have taken out his revolver and fired which incidently hit the son of opposite party No. 2 Megh Pal as a result of which son of opposite party No. 2 died. 3. The opposite party No. 2 on 11.3.2010 moved an application under Section 156(3) Cr.P.C. for the issuance of direction to the police concerned to register the offence under Sections 302, 201, 120-B IPC before the Chief Judicial Magistrate, Shahjahanpur but the same was dismissed for want of prosecution by order dated 11.8.2010. In the meantime the prosecuting agency submitted the charge-sheet dated 17.3.2010 under Section 304 IPC and Section 27 of Arms Act against accused Lala Ram applicant No. 1 in respect of First Information Report lodged against him at crime No. 62/2010. The cognizance was also taken by the learned Magistrate vide order dated 24.4.2010. The opposite party No. 2 Brij Pal thereafter instituted a complaint dated 7.4.2010 before the Chief Judicial Magistrate, Shahjahanpur in respect of the same incident dated 17.2.2010 against four persons on materially different, contradictory and mutually exclusive version what was alleged in the FIR. 4. The statement of the complainant Brij Pal, opposite party No. 2 as well as Dhermendra and one Satendra were recorded under Sections 200 and 202 Cr.P.C. respectively by the Court below in the above mentioned complaint case. In the meantime, the applicant No. 1 Lala Ram was released on bail by this Hon’ble Court by order dated 26.5.2010 under Section 304 IPC. In the meantime, the applicant No. 1 Lala Ram was released on bail by this Hon’ble Court by order dated 26.5.2010 under Section 304 IPC. The Chief Judicial Magistrate having considered the allegation contained in the complaint as well as statements of the witnesses recorded under Sections 200 and 202 Cr.P.C. took cognizance and issued process against the applicants under Section 302, 201, 120-B IPC. The order dated 6.7.2011 taking of cognizance and summoning the applicants is the subject-matter of challenge before this Court in the present application under Section 482 Cr.P.C. 5. It is submitted by the learned counsel for the applicants that learned Magistrate while passing the impugned order dated 6.7.2011 has completely failed to apply his judicial mind to the materials before him and issued process in an arbitrary and routine manner. It was further submitted that under the law the duty imposed on the magistrate concerned to record his opinion on the basis of the facts and material on record showing the sufficiency of grounds for proceeding against the applicants. 6. It is submitted that Section 210(2) Cr.P.C. makes it clear that if the magistrate takes cognizance of an offence on a report filed by the investigating officer under Section 173 Cr.P.C. against any person, who is also an accused in a complaint case, the magistrate shall inquire into or try the two cases together, as if both the case had been instituted on a police report. It was further alleged that sub-Section 3 of Section 210 Cr.P.C. was not attracted to the facts of this case since it deals with a procedure where, if the police report did not relate to any accused in the complaint case or the magistrate did not take cognizance of any offence on the police report he would proceed with the inquiry or trial, which might have been stayed by him under sub-section (1) in accordance with the provisions of the code. According to the counsel for the applicants both the cases have to be clubbed and consolidated and the evidence recorded in one be read as evidence in other case. 7. According to the counsel for the applicants both the cases have to be clubbed and consolidated and the evidence recorded in one be read as evidence in other case. 7. Per contra, learned AGA has opposed this application and submitted that the fact situation does not attract the provisions contemplated in Section 210 Cr.P.C. Since the accused are different in the two separate proceedings and the situation has, in fact, arisen where prejudice in all possibility is likely to be caused in a single trial. Hence this is a case where two trials should be held simultaneously but not as single trial. The facts of the case also warrant that the trials should be conducted by the same presiding officer in order to avoid a conflict of decisions. 8. Taking note of the submissions made by counsel for the parties and having perused the material placed on record, I am of the view that since the version in the police challan case and the complaint case were in conflict and the number of accused and prosecution witnesses were also different the trial of the two cases should not be held together. Both the cases cannot be clubbed and consolidated, particularly when the prosecution version in the police challan case and the complaint case are materially different and the accused persons are also not the same. 9. Section 210 Cr.P.C. provides that procedure to be followed when there is a complaint case and police investigation in respect of the same offence. Sub-section (1) of Section 210 Cr.P.C. provides that when in a case instituted otherwise than on a police report namely a complaint case the magistrate is informed during the course of inquiry or trial that a investigation by the police is in progress in relation to the offence which is the subject-matter of inquiry or trial held by him the magistrate is required to stay the proceeding of such inquiry or trial and to call for report on the matter from the police officer conducting the investigation. Sub-section (2) provides that if a report is made by the investigating officer under Section 173 Cr.P.C. and on such report cognizance of any offence is taken by the magistrate against any person, who is an accused in a complaint case the magistrate shall inquire into or try the two cases together as if both the cases had been instituted on a police report. Sub-section (3) further provides that if police report does not relate to any accused in the complaint case or if the magistrate does not take cognizance of any offence on a police report he shall proceed with the inquiry or trial which was stayed by him in accordance with the provisions of the code. Thus in view of Section 210 Cr.P.C. both the cases arising out of the police report and private complaint can be tried together provide the fact and cases are not materially different, by a magistrate when the cognizance of an offence in respect of an accused in a complaint case as well as in the police investigation such a person is already made an accused then only the magistrate may inquire into or try together the complaint case and the case arising out of the police report as both the cases were instituted on a police report, but in the present case the situation is different as the prosecution version in the police challan case and the complaint case were materially different and the number of accused and prosecution witnesses were also different the trial of the two cases cannot be consolidated and held together. Therefore the version in the complaint case and the police report are totally since materially different though arising out of the same incident cannot be consolidated or clubbed together and the provisions of sub-section (2) of Section 210 Cr.P.C. would not come into play. 10. In my view, this is a case where the two trials should be held simultaneously but not as a single trial by the appropriate Court. 10. In my view, this is a case where the two trials should be held simultaneously but not as a single trial by the appropriate Court. This view has been highlighted in the recent pronouncement of the Hon’ble Apex Court in the case of Pal @ Palla v. State of U.P., 2011 (2) CCSC 817 SC and in the case of Harjinder Singh v. State of Punjab and others, 1985 SCC (crl.) 93, it was observed by the Hon’ble Apex Court in the case mentioned hereinabove that clubbing and consolidating the cases one on a police challan and the other on a complaint if the prosecution version in the two cases are materially different, contradictory and mutually exclusive, then both the cases should not be consolidated but should be tried together with the evidence in the two cases being recorded separately so that both the cases could be disposed of simultaneously. It was further observed that in such an unusual situation and facts of the case the trial Court is required to hear the two cases together though separately and take evidence separately except in respect of all the witnesses who would not affect either by the provision of Article 20(2) of the Constitution or Section 300 Cr.P.C. 11. The Hon’ble Apex Court in the case of Kewal Krishan, 1981 SCC (Crl.) 438, had dealt with a similar situation as the present, where two cases exclusively triable by the Court of sessions one instituted on a police report under Section 173 Cr.P.C. and the other on a criminal complaint arose out of the same transaction. The Hon’ble Apex Court observed that to obviate the risk of two Courts coming to conflicting findings it was desirable that the two cases should be tried separately but by the same Court. 12. The Hon’ble Apex Court observed that to obviate the risk of two Courts coming to conflicting findings it was desirable that the two cases should be tried separately but by the same Court. 12. In the facts and circumstances of this particular case and the view expressed by the Hon’ble Apex Court in the cases mentioned hereinabove, I am of the view that since complaint presents a different picture altogether and the prosecution case has set out in the complaint is at complete variance with that in the police challan, proper course to adopt is to direct that two cases should be tried together by the appropriate Court but not consolidated i.e. the evidence should be recorded separately in both the cases one after the other except to the incident that the witnesses for the prosecution who are common to both the cases be examined in one case and their evidence be read as evidence in the other. In view of the matter, the impugned order dated 6.7.2011 passed by the learned Magistrate issuing process and summoning the applicants under Sections 302, 201, 120-B IPC is well in conformity in law and does not suffer from any material illegality or irregularity and therefore does not warrant any interference in this application. This application is finally disposed of with the observation mentioned hereinabove. Let a copy of this order be send to the Chief Judicial Magistrate, Shahjahanpur for its communication and necessary compliance. ———————