Smt. Hansa Devi & Others vs State Of U.P. & Another
2012 Latest Caselaw 4684 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?'AFR'
 
Court No. - 50
 

 
Case :- CRIMINAL REVISION No. - 2587 of 2012
 

 
Petitioner :- Smt. Hansa Devi & Others
 
Respondent :- State Of U.P. & Another
 
Petitioner Counsel :- Sudarshan Singh
 
Respondent Counsel :- Govt. Advocate
 

 
Hon'ble Manoj Misra,J.

Heard learned counsel for the revisionists and learned A.G.A. for the State.

By this revision application, the revisionists have challenged the summoning order dated 23.5.2012 passed by A.C.J.M., Court No. 3, Bareilly in Case No. 594 of 2011 whereby the revisionists have been summoned under Sections 376 read with 109 I.P.C. and Section 506 I.P.C.

The facts, as they could be elicited from the record, are that the opposite party no.2, the father of the victim, lodged a first information report against five persons namely, one Pappu and the four revisionists herein. This report was registered as Case Crime No.376 of 2011 at P.S. Meerganj, Bareilly. Upon investigation the police laid charge sheet only against Pappu. It appears that cognizance was taken on the charge sheet. As no charge sheet was laid against the remaining four accused, the opposite party no.2 filed a complaint in respect of the same offence impleading the remaining accused persons. Thereafter, statement of victim Babita and other witnesses were recorded, which supported the complaint allegations and, prima facie, disclosed commission of offences by the revisionists, accordingly, the revisionists were summoned under section 376 read with section 109 IPC and section 506 IPC.

Challenging the summoning order, the learned counsel for the revisionists, relying on the decision of the Apex Court in the case of Jile Singh Vs. State of U.P. and another reported in (2012) 3 SCC 383, contended that the Magistrate had no power to summon the revisionists on a private complaint once in respect of the same offence cognizance was taken on a police report which related to only one accused and that the only course left for the complainant was to await for the commencement of trial and to take recourse to the provisions of Section 319 Cr.P.C., after leading of evidence. It was, however, admitted at the bar that the police challani case has not yet been committed to the Court of Session.

Per contra, learned A.G.A. submitted that as there was no investigation pending, the provisions of sub section (1) of Section 210 were not attracted and, as such, there was no bar on the court to proceed on the Complaint. It was further contended that since the police report under Section 173 was not against the persons accused in the Complaint, by virtue of sub section (3) of Section 210 Cr.P.C., there was no embargo on the court with respect to summoning the revisionists after recording the statement of the complainant and the witnesses under Sections 200 and 202 Cr.P.C. It has also been submitted that since admittedly the case has not yet been committed to the Court of Session, therefore, the decision of the Apex Court in Jile Singh Vs. State of U.P. and another(supra) , would not be applicable to the facts of the present case rather the law laid down by the apex court in the case of Harjinder Singh Vs. State of Punjab (1985) 1 SCC 422, followed by the apex court in the case Pal Alias Palla Vs. State of UP reported in (2010) 10 SCC 123, as well as in the case of Manikandan Vs. Pandian & others 1989 Suppl (2) SCC 648, would apply.

Having considered the rival submissions of the learned counsel for the parties, before examining the respective weight of the rival submissions it would be useful to examine the law with regards to the procedure to be followed when with respect to the same offence there is a police case as well as a complaint case. To meet such an eventuality the provisions of Section 210 CrPC have been incorporated. The apex court in the case of Sankaran Moitra V. Sadhna Das AIR 2006 SC 1599, in paragraph no.48 of the report, observed as follows:

"The object of enacting Section 210 of the Code is three fold:

(i) it is intended to ensure that private complaints do not interfere with the course of justice;

(ii) it prevents harassment to the accused twice; and

(iii) it obviates anomalies which might arise from taking cognizance of the same offence more than once.

The Joint Committee of Parliament observed: "It has been brought to the notice of the Committee that sometimes when serious case is under investigation by the police, some of the persons file complaint and quickly get an order of acquittal either by cancellation or otherwise. Thereupon the investigation of the case becomes infructuous leading to miscarriage of justice in some cases. To avoid this, the Committee has provided that where a complaint is filed and the Magistrate has information that the police is also investigating the same offence, the Magistrate shall stay the complaint case. If the police report (under Section 173) is received in the case, the Magistrate should try together the complaint case and the case arising out of the police report. But if no such case is received the Magistrate would be free to dispose of the complaint case. This new provision is intended to secure that private complainants do not interfere with the course of justice."

A reading of the provisions of Section 210 CrPC does not indicate that there is any bar in taking cognizance on a private complaint once the investigation is over. It only obviates anomalies which might arise from taking cognizance of the same offence more than once. In this regard, the apex court in a recent decision in the case of Pal @ Palla (supra), in paras 26 to 30 of the report, laid the law as follows:

"26. Section 210 CrPC provides the procedure to be followed when there is a complaint case and police investigation in respect of the same offence. Sub-section (1) of Section 210 provides that when in a case instituted otherwise than on a police report, namely, a complaint case, the Magistrate is informed during the course of inquiry or trial that an investigation by the police is in progress in relation to the offence which is the subject- matter of inquiry or trial held by him, the Magistrate is required to stay the proceedings of such inquiry or trial and to call for a report on the matter from the police officer conducting the investigation.

27. Sub-section (2) of Section 210 provides that if a report is made by the investigating 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 a complaint case, the Magistrate shall inquire into or try the two cases together, as if both the cases had been instituted on a police report. Sub-section (3) provides that 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 a police report, he shall proceed with the inquiry or trial which was stayed by him in accordance with the provisions of the Code.

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 taking 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 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 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 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 caes could be disposed of simultaneously."

In Manikandan's case (supra) police report with respect to the offence was laid against one accused. Thereafter private complaint was filed against three persons including the one who was charge sheeted. The Magistrate upon examining the complainant took cognizance and issued process to all the three accused. Challenge was made to the issuance of process before the High Court under Section 482 CrPC. High Court quashed the proceedings. Upon appeal to the apex court, against the order of the High Court, the order of the High Court was set aside to the extent it related to the persons accused other than the accused in the police report and the apex court directed that both the cases would be tried having regard to the principles laid down in Harjinder Singh's Case (Supra). In the case of Harjinder Singh (Supra), the principles enunciated by the apex court, which is to be followed by courts dealing with a situation where with respect to the same offence their is a police challani case as well as a complaint case, is discernible from paragraphs No. 8 and 9 of the judgment, which are being reproduced below:

"8. In the facts and circumstances of this particular case we feel that the proper course to adopt is to direct that the two cases should be tried together by the learned Additional Sessions Judge but not consolidated i.e. the evidence should be recorded separately in both the cases one after the other except to the extent that the witnesses for the prosecution who are common to both the cases be examined in one case and their evidence be read as evidence in the other. The learned Additional Sessions Judge should after recording the evidence of the prosecution witnesses in one case, withhold his judgment and then proceed to record the evidence of the prosecution in the other case. Thereafter he shall proceed to simultaneously dispose of the cases by two separate judgments taking care that the judgment in one case is not based on the evidence recorded in the other case. In Kewal Krishan's case, supra, this Court had occasion to deal with a situation as the present, where two cases exclusively triable by the Court of Sessions, one instituted on a police report under Section 173 of the Code and the other initiated on a criminal complaint, arose out of the same transaction. The Court observed that to obviate the risk of two courts coming to conflicting findings, it was desirable that the two cases should be tried separately but by the same court. The High Court was largely influenced in upholding the order of the Additional Sessions Judge by the fundamental right of the accused guaranteed by Article 20(2) of the Constitution and Section 300 of the Code which provides that no person shall be prosecuted and punished for the same offence more than once. If there is no punishment for the offence as a result of the prosecution, Sub-clause (2) of Article 20 has no application. The constitutional right guaranteed by Article 20(2) against double jeopardy can still be reserved if the two cases are tried together but not consolidated i.e. the evidence be recorded separately in both cases and they be disposed of simultaneously. Further, the second prosecution must be for the 'same offence'. If the offences are distinct, there is no question of the rule as to double jeopardy being applicable.

9. We fail to comprehend the implications that would arise if the order passed by the learned Additional Sessions Judge as upheld by the High Court was to be implemented. The case presents a feature which is rather disturbing. In the special leave petition, there is a specific allegation made by the complainant that the accused are influential persons and they exerted pressure on the police as a result of which in the police challan case the complainant's party was shown to be the aggressors. It is further alleged that the police in order to achieve this object have presented a challan which is not supported by any of the witnesses of the occurrence and although the complainant Harjinder Singh received gunshot wounds, he has not even been cited as a witness for the prosecution. It is said that the case against the accused is sought to be supported by the testimony of Chanan Singh, Head Constable, Pawan Kumar, Constable and the doctors who performed the post-mortem examinations. We have set out these allegations only for the purpose of showing the nature of the case against the accused in the police challan case. The complaint presents a different picture altogether. The prosecution case as set out in the complaint is at complete variance with that in the police challan. In our judgment, it is not permissible for the Court under Section 223 of the Code to club and consolidate the case on a police challan and the case on a complaint where the prosecution versions in the police challan case and the complaint case are materially different, contradictory. and mutually exclusive."

This court in the case of Sukhpal & others V. State of UP & another 2007 (57) 373, after examining the provisions of Section 210 CrPC, held in paragraph 13 of the report, as follows:

"I am of the view that in respect of the same subject matter, a police report under section 173(2) CrPC is submitted and the cognizance has been taken against the accused by the learned Magistrate and the complaint has been filed, some more persons including accused who have been charge sheeted, the learned Magistrate is competent to take cognizance against those accused persons who have not been charge-sheeted and there is no bar for taking cognizance of offence on private complaint against remaining accused."

Although cognizance is taken of the offence and not of the offender, but there is nothing in the Code that prohibits taking cognizance on a private complaint even though the Court may have already taken cognizance on a police report. It is only the consequences that may arise out of such an eventuality that have been addressed to by the provisions of section 210 of the Code, as has been noticed above.

The decision in the case of Jile Singh (supra), which has been relied upon by the learned counsel for the revisionists is not applicable to the facts of the present case as admittedly the police challani case has not yet been committed to the Court of Session. If there had been a committal order then, in such a situation, it is the Session's Court alone which could have exercised the power to summon additional accused by exercising its power under Section 319 Cr.P.C. upon recording of evidence, as per the law laid in Jile Singh's case following the decisions of the apex court in the cases of Ranjit Singh Vs. State of Punjab (1998) 7 SCC 149 and Kishori Singh Vs. State of Bihar (2004) 13 SCC 11. However, in the present case, the case has admittedly not been committed to the Court of Session and there was no investigation pending thus there was no embargo on the court of Magistrate with respect to summoning the revisionists upon a private complaint after recording the statement of the complainant and the witnesses in support thereof, particularly, when the persons so summoned were not accused in the police report.

For the reasons discussed above, I do not find any illegality, impropriety or jurisdictional error in the order passed by the court below.

However, considering the nature of the allegations made against the revisionists, without expressing any opinion on the merit of the case, it is hereby provided that in case the revisionists appear before the court concerned and apply for bail within four weeks from today, their bail application shall be considered and disposed of in accordance with law laid down in the case of Amrawati and another Vs. State of U.P. reported in 2004 (57) ALR 290 as well as judgment passed by Apex Court reported in 2009 (3) ADJ 322 (SC) Lal Kamlendra Pratap Singh Vs. State of U.P.

Subject to the aforesaid observations, the revision is dismissed.

Order Date :- 3.10.2012

Sunil Kr. Gupta