Allahabad High Court
Jile Singh vs State Of U.P. And Anr. on 10 March, 2011
Bench: Vinod Prasad
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 50
Case :- CRIMINAL REVISION No. - 1241 of 2011(A.F.R.)
Petitioner :- Jile Singh
Respondent :- State Of U.P. And Anr.
Petitioner Counsel :- C.B. Singh
Respondent Counsel :- Govt. Advocate,Lalit Kumar Shukla
Hon'ble Vinod Prasad,J.
Heard Sri C.B. Singh, learned counsel for the revisionist, Sri Lalit Kumar Shukla for the complainant, learned A.G.A. and perused the record.
By this revision summoning order dated 3.1.2011 passed by the C.J.M., Mathura in complaint case no. 3100 of 2009, Tek Chanda Sharma Vs. Jile Singh and other, for offences under section 302,201 I.P.C. has been challenged.
The incident, in the present case relates with murder of Bharat Lal, in respect of which an F.I.R. was got registered against unknown persons. Investigation which ensued ultimately culminating in charge sheet Hari Singh as an accused for the crime. Findings his case triable by Court of Sessions, the same was committed for his trial to the Sessions Court where it is still continuining.
Informant, on being aggrieved by non-filing of charge sheet against the revisionist, thought it appropriate to file a complaint case against the revisionist for committing murder of Bharat Lal. C.J.M. took cognizance of the offence and after observing due procedure prescribed for complaint case summoned the revisionist vide order dated 3.1.2011 which order now has been assailed in the instant revision.
Supporting the revision, learned counsel for the revisionist submits that under Section 309 of the Code, the entire case in respect of murder of Bharat Lal was committed to the Sessions Court on the earlier occasion of another accused Hari Singh and, therefore, cognizance qua revisionist on a subsequent occasion by C.J.M. in respct of that very case is unsanctified. Learned counsel for the revisionist further submits that after committal of case qua Hari Singh, C.J.M. had become functus officio. He further contends that once the charge sheet has been submitted in respect of a crime, no further complaint can be entertained in respect of same incident nor anybody else can be added as an accused. In support of his submissions, learned counsel based his opinion on the decision of the Apex Court in the case of Jai Chandra Singh and another Vs. State of Punjab and another (1997) 1 SCC 345.
Learned A.G.A. conversely submitted illucidely and elaborating procedure prescribed for complaint case and committal proceedings that if an accused is not tried along with the charge sheeted accused then complaint in his respect is maintainable and such an accused can be proceeded with for the same crime and offence. In this respect, learned A.G.A. drew support from Section 210 Cr.P.C.
Considering rival contentions, no force is found in the submissions of learned counsel for the revisionist. Facts as mentioned above indicate that in respect of murder of Bharat Lal, police investigated the offence but charge sheeted only Hari Singh. Present revisionist Jile Singh was not an accused in the aforesaid police charge sheet. Complainant-informant had no reason to array Jile Singh as an accused under Section 319 Cr.P.C. for the reason that police papers did not contain any allegation against him. For him to prosecute Jile Singh on the basis of such police investigation would have been a futile effort although, informant-complainant had credible material with him to rope Jile Singh also for the charge of murder. Having such an opinion, complainant though it fit to lodge a complaint against Jile Singh. C.J.M. committed no illegality in entertaining the said complaint. After due observance of the procedure prescribed for complaint case for offence triable by Court of Sessions that the C.J.M. has summoned the revisionist to stand trial for the murder of Bharat Singh. The procedure so adopted by C.J.M. does not amount to filing of two cases in respect of same accused. In respect of single incident, different persons can be prosecuted on the basis of different evidences but inconsonance with judicial discipline, the trial of all those persons should be conducted jointly by the same court to avoid contrary findings. It can not be said that in a complaint case different accused can not be prosecuted for committing murder of the same person when other accused has been charge sheeted by the police.
Contention of learned counsel for the revisionist that case which is committed under Section 309 Cr.P.C. makes court of magistrate functus officio in respect of other accused in the same crime, therefore, cannot be expected and is hereby repelled. Another reason for not accepting the said prayer is that committal of case preceds compliance of section 207 Cr.P.C. Under that section, copies of the documents are handed over to the accused and only thereafter, his case is committed to the Sessions Court. Thus, although, the case is committed to the Sessions Court under Section 309 Cr.P.C. but it is in respect of a particular accused. There cannot be any commitment proceeding in absence of accused or in respect of a person who was not arrayed as an accused at that stage. Contention so raised by counsel for the revisionist, therefore, is wholly un-impressive, meritless and is hereby rejected.
Another important aspect to be noted at this juncture is that Section 210 Cr.P.C. provides that in respect of identicle incident, if an accused is not being prosecuted on the basis of a police charge sheet, then he can be tried in a complaint case instituted by the same complainant. For a ready reference, the provision of Section 210 Cr.P.C. is reproduced below;
"(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 export 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."
In view of the above, I do not find any reason to set aside the summoning order of the revisionist as has been prayed for and, therefore, I do not find any merit in this revision.
However, it is desirable for this Court to direct that since the complaint case instituted against the revisionist relates to the murder of same person Bharat Lal, under the provisions of Section 323 Cr.P.C. it is desirable to commit his case to the Court of Sessions for trial and be allotted to the same Judge who is prosecuting Hari Singh on the basis of police charge sheet in respect of the same murder to avoid conflicting findings and it is ordered accordingly.
After the aforesaid decision was dictated in open Court, it was submitted that since Hari Singh has already been allowed bail some direction for expeditious consideration of bail of revisionist be issued.
Considering above submission, I hereby directed both the courts below to dispose of the bail prayer of the revisionist in accordance with law after hearing Public Prosecutor without unreasonable delay as expeditiously as possible.
Order Date :- 10.3.2011
Naresh
