Research › Search › Judgment

Allahabad High Court · body

2016 DIGILAW 2338 (ALL)

Kiran Singh v. State of U. P.

2016-07-06

VIJAY LAKSHMI

body2016
JUDGMENT Mrs. Vijay Lakshmi,J. Heard Praveen Kumar Singh, learned counsel for the applicant, learned AGA for the State and perused the records. 2. The applicant, through the present application under Section 482 Cr.P.C., has invoked the inherent jurisdiction of this Court with prayer to quash the order dated 2.3.2013 passed by Additional Session Judge, Court No.2, Varanasi in Crl. Revision No.377 of 2012 whereby the learned revisional court has dismissed the revision filed by the applicant and has confirmed the order dated 24.9.2012 of the Magistrate rejecting the application moved by the applicant under Section 210 Cr.P.C. The further prayer of the applicant is to club the proceeding of Case No.538 of 2010, under Section 138 N.I. Act and Case No.518 of 2011, under Sections 406,504,506 I.P.C., Police Station Cantt., District Varanasi. 3. Learned counsel for the applicant has submitted that earlier on 09.3.2010 a complaint was filed by the O.P. No.2 which was registered as Case No.538/2010 under Section 138 of the Negotiable Instruments Act, 1881, P.S. Cantt, District-Varanasi. The allegations in the aforesaid complaint case was that on 23.10.2009, O.P. No.2 gave the applicant Rs.9 lakhs as loan. The said amount was transferred into the account of the applicant on 21.01.2012. A cheque of Rs.7,18,000/- was given by the applicant to the O.P. No.2 which subsequently was dishonoured. 4. Learned counsel for the applicant has submitted that in the aforesaid case the applicant was summoned under Section 138 of the N.I. Act vide order dated 23.6.2010 and is facing trial in the aforesaid case. However, in order to mount pressure upon the applicant, another F.I.R. under Section 138 of the N.I. Act and under Sections 406,504 and 506 I.P.C. was lodged by the O.P. No.2 on 28.8.2010 with almost same allegations and as no F.I.R. can be registered under Section 138 of the N.I. Act, the police submitted charge sheet under Sections 406,504 and 506 I.P.C. on 02.11.2010. 5. The submission of the learned counsel for the applicant is that as a result two cases i.e. Case No.538/10 U/s 138 of N.I. Act and Case No.518 of 2011 are pending in two different courts at Varanasi with regard to the same cause of action. 6. 5. The submission of the learned counsel for the applicant is that as a result two cases i.e. Case No.538/10 U/s 138 of N.I. Act and Case No.518 of 2011 are pending in two different courts at Varanasi with regard to the same cause of action. 6. The learned counsel for the applicant has submitted that the applicant had preferred an application under Section 210 Cr.P.C. before the C.J.M. Varanasi which was arbitrarily dismissed by the learned Magistrate vide order dated 03.6.2011. Against the aforesaid order, the applicant preferred Criminal Revision No.2350 of 2011 before this Court which was dismissed as not pressed vide order dated 18.9.2012. Thereafter, the applicant preferred Criminal Revision No.377 of 2012 before the Court of Additional Sessions Judge, IInd Varanasi which was admitted vide order dated 20.10.2012 relying upon the judgment passed in the case of Veer Singh Yadav Vs. State of U.P. 2010.(6) A.L.J. 210. However, the aforesaid revision was dismissed by the Court below vide impugned order dated 02.3.2013 in a totally mechanical fashion without application of judicial mind and without mentioning any ground for deviating from the previous view taken by the lower revisional court while admitting the aforesaid revision. Thus, the aforesaid order is in the teeth of the order dated 20.10.2012. 7. Learned counsel for the applicant has submitted that it would be a travesty of justice and gross abuse of the process of the Court, if both the cases are not clubbed together and their trial be not conducted jointly. Hence, it has been prayed that the present application be allowed and the order dated 02.3.2013 passed by the Additional Sessions Judge, Court No.2, Varanasi in Crl. Revision No.377/12 be set-aside and the proceedings of Case No.538 of 2010 (Pushpa Singh Vs. Kiran Singh) under Section 138 of N.I. Act P.S. Cantt District-Varanasi be clubbed together with the proceedings of Case No.518/11 (State Vs. Kiran Singh) u/s 406,504 and 506 I.P.C., P.S. Cantt District-Varanasi. 8. Learned counsel for the O.P. No.2 and the learned A.G.A. have opposed the application. 9. In the counter affidavit filed by the learned counsel for the O.P. No.2 it has been submitted that the application under Section 210 Cr.P.C. for clubbing both the cases has rightly been rejected by both the courts below and there is no illegality in the aforesaid order because both the cases are separate. 9. In the counter affidavit filed by the learned counsel for the O.P. No.2 it has been submitted that the application under Section 210 Cr.P.C. for clubbing both the cases has rightly been rejected by both the courts below and there is no illegality in the aforesaid order because both the cases are separate. One case is in the nature of complaint and the another case is State Case in which charge-sheet has been filed and as such the State Case and Complaint Case cannot be clubbed together. 10. Considered the rival submissions of the parties. 11. Section 210 Cr.P.C. is reproduced 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 then 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." 12. (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." 12. A perusal of the record shows that the place, date, time and the parties involved in the occurrence are the same and in respect of the same occurrence, a State Case and Complaint Case are pending in two different Courts and the police has submitted charge-sheet in the State Case, hence in view of sub-section (2) of Section 210 of the Cr.P.C. as cited above and to avoid contradictory findings by two different court's on the same issues, this application deserves to be allowed and the impugned order is liable to be set-aside. 13. Accordingly, the application is allowed. 14. The impugned order dated 2.3.2013 passed by Additional Session Judge, Court No. 2, Varanasi in Crl. Revision No.377 of 2012 is set-aside and the trial of both the cases are directed to be clubbed together and be disposed of in accordance with law. 15. Copy of this order be sent to the Courts below for further compliance.