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Madhya Pradesh High Court · body

2017 DIGILAW 1019 (MP)

Rahees Khan v. Hamida Bi

2017-09-21

G.S.AHLUWALIA

body2017
ORDER : GURPAL SINGH AHLUWALIA, J. 1. This application under Section 482 of Cr.P.C. has been filed against the order dated 8-4-2011 passed by J.M.EC. Mungawali, Distt. Ashoknagar in complaint case No. 197/2011 by which the Magistrate has taken cognizance of offence under Sections 302, 324 of I.P.C. against the applicants. The necessary facts for the disposal of the present application in short are that the Kotwar gave an information to the police that the dead body of a child namely Aliya is lying in front of her house. On this information, the police started investigation. The dead body was sent for postmortem. The statements of the witnesses were recorded. The statement of the respondent was also recorded. This is not out of place to mention here that the respondent is the wife of one Mister Khan who is facing trial on the allegation of killing his own daughter Ms. Aliya Khan. It was stated by the respondent in her case diary statement that a land dispute is going on between her husband Mister Khan and Rahees Khan and therefore, the revenue authorities had come for demarcation of land. Her husband and brother-in-law had gone to the fields. At about 1:30 P.M., they came back. 2. Her husband was very annoyed. He said that since, Rahees has got the land demarcated, therefore, now he will get him implicated in a false case of murder. Therefore, he picked up an axe and moved towards his daughter. When the respondent objected to it, her husband caused injury to her by a knife and thereafter he caused injury to his daughter deceased Aliya. The police after completing investigation, filed charge sheet against Mister Khan and Pappu Khan and they are facing trial. 3. Thereafter, the respondent filed a criminal complaint against the applicants on the allegations, that they had caused murder of Ms. Aliya. The Trial Magistrate by order dated 8-4-2011 took cognizance of the offence against the applicants under Sections 302, 324 of I.P.C. 4. Challenging the order passed by the Magistrate, it is submitted by the Counsel for the applicants that for the murder of girl Aliya, Mister Khan and Pappu Khan are already facing trial. The evidence of the respondent has been recorded in the Trial and She has stated that in fact the applicants have committed murder of Ms. Aliya. Challenging the order passed by the Magistrate, it is submitted by the Counsel for the applicants that for the murder of girl Aliya, Mister Khan and Pappu Khan are already facing trial. The evidence of the respondent has been recorded in the Trial and She has stated that in fact the applicants have committed murder of Ms. Aliya. Therefore, under this circumstance, the only option available was to file an application under Section 319 of Cr.P.C. for impleading the applicants as an additional accused persons and separate complaint was not maintainable. To buttress his contentions, the Counsel for the applicant has relied upon a judgment passed by the Supreme Court in the case of Jile Singh v. State of UP. and another reported in (2012) 3 SCC 383 . 5. Per Contra, it is submitted by the Counsel for the respondent, that the police had not conducted the free and fair investigation and at the instance of the applicants, had falsely implicated the father and uncle of the deceased Aliya. Two Trials for the same offence against two different persons are permissible and the only rider is that both the Trials should be conducted by one Court and should be decided by two different judgments so as to avoid contradictory judgments. To buttress his contentions, the Counsel for the respondent has relied upon the judgments passed in the case of Harjinder Singh v. State of Punjab reported in (1985)1 SCC 422 , Pal v. State of U.P. Reported in (2010) 3 SCC (Cri) 1228. 6. The moot question for determination is that whether two different Trials in respect of same offence" where the accused persons are not common, can go on or whether the only option available to the complainant is to file an application under Section 319 of Cr.P.C. The question involved is no longer res-integra. The Supreme Court in the case of Pal (Supra) has held as under: 28. The Supreme Court in the case of Pal (Supra) has held as under: 28. Although it will appear from the above that under Section 210 CrPC, the Magistrate may try the two cases arising out of a police, report and a private complaint together, the same, in our view, contemplates a situation where having taken cognizance of an offence in respect of an accused in a complaint case, in a separate police investigation such a person is again made an accused, then the Magistrate may 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. That, however, is not the fact situation in the instant case, 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 where a person is both an accused and a witness in view of the two separate proceedings out of which the trial arises. 29. In our view, this is a case where the decision in Harjinder Singh case [ (1985) 1 SCC 422 )] would be more apposite. In the said case, the question of Article 20(2) of the Constitution, as well as Section 300 CrPC, relating to double jeopardy was considered. A similar situation has arisen in this case where the versions in the complaint case and the police report are totally different, though arising out of the same incident. In our view, this is a case where the two trials should be held simultaneously but not as a single trial. 30. The facts of the case also warrant that the two trials should be conducted by the same Presiding Officer in order to avoid conflict of decisions. As was observed in Harjinder Singh case [ (1985) 1 SCC 422 )] clubbing and consolidating the two cases, one on a police challan and the other on a complaint, if the prosecution versions in the two cases are materially different, contradictory and mutually exclusive, 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,, 31. Although the High Court has relied on the provisions of Section 210 of the Code in directing that the two cases be clubbed together, in our view, the fact situation does not really attract the provisions contemplated in the said section. On the other hand, as indicated hereinabove, the trial court, in the unusual facts of the case, is required to hear the two cases together, though separately, and take evidence separately, except in respect of all witnesses who would not be affected either by the provisions of Article 20(2) of the Constitution or Section 300 CrPC. Thus, it is clear that where a charge sheet has been filed by the police against one set of accused persons and a complaint has been filed against another set of accused persons, in respect of same offence, then both the criminal trials may go on simultaneously and it is not required that only an application under Section 319 of Cr.P.C. should be filed. 7. The judgment passed in the case of Jile Singh (Supra) is distinguishable on facts. In the said case, allegations were made against a person, but he was not charge sheeted by the police on the ground that he was falsely implicated. Thus, the question involved in said case was that where allegations were made against a person and if he is not charge sheeted, then whether a separate private complaint can be filed or the only course open is to make him an additional accused under Section 319 of Cr.P.C. or cognizance can be taken under Section 193 of Cr.P.C. (Kindly See Hardeep Singh v. State of Punjab reported in [ (2014) 3 SCC 92 ]). However, in the present case, the facts are completely different. The police has charge sheeted a different set of persons whereas a criminal complaint has been filed against a completely different set of persons. Therefore, under these circumstances, the law pronounced by the Supreme Court in the case of Harjinder Singh (Supra) and Pal (Supra) would apply. 8. In the present case, initially, the record was requisitioned, however, thereafter by order dated 22-12-2016, the record was returned back. On 24-2-2017, a statement was made by the Counsel for the respondent that M.Cr.C. No. 7075/2017 arising out of criminal case registered on private complaint is also pending and therefore, this Court had directed to list the case along with M.Cr.C. No. 7075/2017. On 24-2-2017, a statement was made by the Counsel for the respondent that M.Cr.C. No. 7075/2017 arising out of criminal case registered on private complaint is also pending and therefore, this Court had directed to list the case along with M.Cr.C. No. 7075/2017. I have gone through the record of M.Cr.C. No. 7075/2017 and it does not arise from the private complaint and has nothing to do with the present case. As already held that two different trials in respect of same offence, against two different set of accused persons can go on. However, then the only option open is to direct that both the Trials be conducted by one Court separately, in order to avoid any conflicting judgments. During arguments, it is submitted by the Counsel for the applicants that the Sessions Trial, in which Mister Khan and Pappu Khan are accused, is still pending and has not been decided so far. 9. Under these circumstances, in the light of the judgment passed by the Supreme Court in the cases of Harjinder Singh (Supra) and Pal (Supra), it is directed that both the Trials i.e., in which Mister Khan and Pappu Khan are the accused and the present trial, in which the applicants are the accused, shall be conducted by the Same Court but separately. Evidences shall be recorded separately and shall be decided on the same day by two different judgments. Accordingly, this Court is of the considered opinion that the Magistrate did not commit any mistake by taking cognizance of offence under Section 302 and 324 of I.P.C. against the applicants, although a Sessions Trial is pending for the same offence against a different set of persons. Hence, the order dated 8-4-2011 passed by J.M.F.C. Mungawali, Distt. Ashoknagar in private complaint case No. 197/2011 is hereby affirmed, with a direction that both the Sessions Trial shall be tried by the same Court but separately as already observed by this Court. With aforesaid observations, the application fails and is hereby dismissed.