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2014 DIGILAW 699 (ALL)

Hazrat Ali @ Mir Hazrat Ali v. State of U. P.

2014-02-25

KARUNA NAND BAJPAYEE

body2014
JUDGMENT Karuna Nand Bajpayee, J.: - The present criminal revision has been filed assailing the validity of the order dated 16.1.2014 passed by Addl. Chief Judicial Magistrate/Civil Judge (Senior Division) Kushinagar at Padrauna in complaint case No. 509 of 2013, Mushtaq v. Mainuddin and others under sections 419, 420, 467, 468 and 471, IPC pertaining to P.S. Pateharwa, District Kushinagar whereby the application under sections 210 Cr.P.C. moved on behalf of the revisionist has been disposed of in a way which is tantamount to rejection. 2. Heard Sri Mohd. Shoeb Khan, learned Counsel for the revisionist and also Sri Hari Pratap Gupta who had filed his power on behalf of respondent No. 2 today which is taken on record. The entire record has been perused including the impugned order. 3. The contention of the Counsel for the revisionist is that the revisionist is facing criminal proceedings in a complaint case as an accused but about the same subject-matter an FIR was also lodged against him along with another co-accused and the investigation in that police case is going on. In such circumstances according to the submission of the Counsel for the revisionist the proceedings of the complaint case going on against the revisionist cannot go on and the same ought to be put on hold as per the provision of section 210 Cr.P.C. An application in this regard had been moved before the Lower Court but the same did not find favour with the Court and the Court is still proceeding against the accused revisionist as before. According to the Counsel, the impugned order is bad in the eyes of law because it is not following the mandate of section 210 Cr.P.C and is in breach of the statutory law. 4. Counsel for the respondent as well as the AGA both have made their submissions in rebuttal and have pointed out that actually the police case referred to by the revisionist was investigated by the police and thereupon a final report was submitted in favour of the accused. Therefore, at the time of the disposal of the application moved under section 210 Cr.P.C. there was no investigation pending against the accused revisionist. Therefore, at the time of the disposal of the application moved under section 210 Cr.P.C. there was no investigation pending against the accused revisionist. According to the submissions made on behalf of the respondent the end of investigation and its termination in the submission of the final report automatically makes the provision under section 210 Cr.P.C. un-operative and there was no other option for the Lower Court seized with the proceedings of the complaint case than to keep the proceedings going as before. 5. This Court had the occasion to peruse the record of the case as well as impugned order and the same reveal that after the application under section 210 Cr.P.C. was moved on behalf of the revisionist, a report was called up from the police station and it was reported thereupon by the police that though a case crime No. 579 of 2012 was registered against the accused as well as other co-accused under sections 419, 420, 467, 468 and 471, IPC but after investigation of the case, final report was submitted. According to the police report the accused revisionist and other co-accused were no more wanted in the aforesaid case crime number. 6. It was on this ground that the Lower Court proceeded to dispose of the application keeping in view the report furnished by the police station. The impugned order also reveals that the bail application of the accused revisionist is pending disposal and for the interregnum period the accused had been released on interim bail and the case has been posted for the final hearing on the main bail application. 7. It may be relevant to extract the section 210 Cr.P.C. at this stage for proper appreciation of facts and law both Section 210 Cr.P.C reads as follows: "210(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." 8. A bare perusal of the aforesaid provision makes it clear that the Magistrate concerned is required to stay the proceedings of the complaint case if it is disclosed before him that the investigation by police is in progress with relation to the offence which is also the subject-matter of inquiry or trial of the complaint case. When it was reported by the police that the investigation had culminated into submission of the final report and the same was no more in progress, there was no occasion for the learned Magistrate to bring into application the provision of section 210 Cr.P.C. and he was very much right in his decision whereby he did not stay the proceedings of the complaint case. The facts and circumstances of the case are such that the impugned order cannot be faulted with. Neither any illegality nor impropriety is perceptible in the order. Learned Counsel for the revisionist has not been able to point out any such thing on the basis of which the impugned order could be subjected to any serious castigation. 9. At this stage learned Counsel for the .revisionist submits that after submission of the final report in the police case a protest petition has also been filed by the first informant of that case and the Court concerned has not yet taken any decision on it. In such a situation the investigation should be deemed to be pending still. 10. At this stage learned Counsel for the .revisionist submits that after submission of the final report in the police case a protest petition has also been filed by the first informant of that case and the Court concerned has not yet taken any decision on it. In such a situation the investigation should be deemed to be pending still. 10. I am unable to agree with the contention raised by learned Counsel for the revisionist, even if the contention of learned Counsel is found to be factually correct that the final report has yet not been accepted or rejected and the protest petition is awaiting its disposal. There are many possibilities in the Court which may happen. The final report may be accepted as such and the whole matter may cease to exist. It is also possible that further investigation may again be ordered by the Court concerned. The Magisterial Court may also take cognizance of the matter and prceed with the same as a complaint case. All these eventualities are within the realm of conjectures and it was not possible for the Magistrate to act upon uncertain speculations. An application moved under section 210 Cr.P.C. could be decided by the Magistrate on the basis of the facts as existed at that point of time and not on hypothetical basis. The impugned order cannot be validly assailed on any such grounds as have been pressed forth by the revisionist in the Court. 11. It may be observed that depending upon the fate of the aforesaid final report, the revisionist shall be at liberty to choose the right course permissible under law depending upon the situation that emerges out in future and also the manner in which the final report is treated and adjudicated upon by the Court concerned. With the aforesaid observations the revision being sans merit stands dismissed. Revision Dismissed.