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2017 DIGILAW 1299 (HP)

Kashmiru Ram v. State Of H. P.

2017-11-24

SURESHWAR THAKUR

body2017
JUDGMENT Sureshwar Thakur, J. (Oral) - FIR No. 253/8 of 30.11.2008, borne in Annexure P-1, appended to the instant petition, was lodged by the informant at Police Station, Sadar, District Solan, H.P. Upon the aforesaid FIR, being lodged at Police Station Sadar, District Solan, H.P., the Investigating Officer concerned, commenced investigations AND on conclusion of investigations, he filed a report under Section 173 Cr.P.C. before the learned trial Magistrate concerned. 2. The learned trial Magistrate on 21.6.2016, recorded an order (i) that with the solitary eye witness to the occurrence, proceeding to a place other than where he was residing, (ii) the MLCs not bearing consonance with the allegations made in the FIR, (iii) especially qua the accused inflicting injuries upon the complainant with sharp edged weapon, (iv) hence concluded that an offence under Section 324 IPC being not made out rather an offence under Section 323 IPC being made out. Furthermore, the learned trial Magistrate also concluded, that the allegations made in the FIR qua the accused, qua his committing an offence punishable under Section 506 of IPC, being also not made out. The reasons aforesaid assigned, by the learned trial Magistrate, for hers hence concluding that an offence under Section 506 IPC and the one under Section 324 IPC, being not made out against the accused, do not suffer from any illegality. Subsequent thereto, AND in consonance therewith, trial was to commence against the accused. However, subsequent thereto, upon the matter coming up on 2.2.2017 before the learned trial Magistrate, she thereat omitted to take cognizance upon the FIR rather contrarily, she took cognizance upon the complaint, besides enjoined the complainant to adduce preliminary evidence thereon. The aforesaid order is per-se illegal, given (i) upon furnishing of the apposite report by the Investigating Officer concerned before her, she was enjoined to charge the accused for commission of an offence under Section 323 IPC. Consequently, the impugned order is quashed and set aside. The learned Magistrate is directed to take cognizance upon the report furnished before her by the Investigating Officer under Section 173 Cr.P.C. Before parting, it, is deemed fit to extract the relevant, applicable hereat, provisions of Section 210 Cr.P.C.: - "210. Procedure to be followed when there is a complaint case and police investigation in respect of the same offence. The learned Magistrate is directed to take cognizance upon the report furnished before her by the Investigating Officer under Section 173 Cr.P.C. Before parting, it, is deemed fit to extract the relevant, applicable hereat, provisions of Section 210 Cr.P.C.: - "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 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." The Magistrates concerned are directed to bear in mind AND to, in future apply the mandate of the afore extracted relevant provisions, upon theirs'' being seized with (a) FIR, (b) complaint, especially with both carrying therein same allegation(s)/offence(s). However, any departure therefrom shall be seriously viewed. 3. In view of the above observations, the instant petition is disposed of. All the pending application(s), if any, are also disposed of.