Mool Singh & Others vs State Of U.P. & Others
2014 Latest Caselaw 1834 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

	Court No. 53
 
A.F.R.
 

 
CRIMINAL MISC. APPLICATION NO. 7060 OF 2003
 

 
Mool Singh and others           ....              Applicants
 
Vs.
 
State of U.P. and another         ..........   Respondents
 

 
Hon'ble Vinod Prasad, J.

In the revised call, none is present for the applicants. The applicants have prayed to quash the proceedings Special Sessions Trial No. 8 of 2003, Radhey Shyam Yadav Vs. Mool Singh and others pending before Special Judge, Dacoity Affected Area, Kanpur Dehat.

With the help of learned AGA, I have perused the record. From the pleadings made in the affidavit appended along with this 482 Cr.P.C. Application, it is revealed that an FIR under section 395 I.P.C. was lodged on 29.4.1998 as crime no. 88-A at P.S. Rasoolabad, District Kanpur Dehat against the applicants in which, charge sheet was submitted under sections 325/323/504 I.P.C. after due investigation and the trial of the aforesaid offences is pending before the competent court. According to the allegations levelled in the aforesaid FIR Radhey Shyam Yadav, informant was robbed off Rs. 15000/- on 1.4.1998 by the applicants. Informant was saved by Sita Ram, Arun Kumar, Mahendra Singh and others. Copy of the FIR is annexure no. 1 to the affidavit. Copy of the statements of Harish Chandra, Prabhu Dayal, Sri Ram Sirohi Singh, Ram Lakhan and Vijay Kumar Tripathi under section 161 Cr.P.C. has been cumulatively appended as annexure no. 2 and the copy of the charge sheet under sections 325/323/504 I.P.C. is annexure no. 3. During the trial of the concerned crime as case no. 9 of 1999, State Vs. Mool Singh and others, statement of Radhey Shyam Yadav, P.W. 1 was recorded by the trial Magistrate. Thereafter, informant moved an application on 19.4.2001 mentioning therein that offence under section 395 I.P.C. is disclosed and police has wrongly submitted charge sheet under trivial and mollified offence under sections 323/325/504 I.P.C. However, the said application of the informant was rejected vide annexure no. 4 on 13.7.2001. Subsequent thereto, informant Radhey Shyam Yadav filed complaint case no. 41/12 of 1998 against the applicants under section 395 I.P.C. before Special Judge (DAA), Kanpur Dehat on 21.2.2003 being S.T. NO. 8 of 2003 vide annexure no. 5 to the affidavit. Learned Special Judge (DAA) on the basis of complaint annexure no. 5 took cognizance of the offence on 24.7.2003 fixing 13.8.2003 for appearance. Copy of the order taking cognizance is annexure no. 6 to this affidavit. By the same annexure no. 6, accused persons were summoned fixing 13.8.2003 for their appearance. On 13.8.2003, applicants moved an application before Special Judge (DAA) with the prayer that the aforesaid complaint case be dismissed.

It is thereafter that the applicants have approached this Court for quashing of the prosecution of the aforesaid complaint case.

This application is squarely covered under section 210 Cr.P.C. If the accused are not being prosecuted on the basis of police chalani case for any offence, a complaint in respect of that distinct offences can always be proceeded against him/them. In the present case, the police did not charge sheet the accused for an offence under section 395 I.P.C. and instead, has submitted a charge sheet under sections 323/325/504 I.P.C. only. Section 210 (2) Cr.P.C. read with section 210 (3) Cr.P.C. caters such a fact situation and the legislature has provided that in case where the accused in a charge sheet and complaint case are common and offences are the same then they can be proceeded as police chalani case. It is essential in the event that the offences in which they have been charge sheeted is the same as that of the complaint case. If the offence in the complaint case is distinct from the offence mentioned in the charge sheet for which the accused has been sent up for trial, the proceeding of the complaint case has to go on and merely because the accused are common in police chalani case and complaint case will not make any difference. In this eventuality both police chalani case and complaint case shall proceed separately. For the purpose of clarity, section 210 Cr.P.C. is referred to herein 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 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."

Perusal of the aforesaid section ordains that it deals two important aspects; (1) commonality of the accused and (2) identical/similarity of offences. If there is commonality of accused with the same offence, the complaint case will merge with police chalani case and will be tried as police chalani case but in case, the accused are different or the offences are different then the police chalani case as well as complaint case both has to proceed simultaneously by the respective Courts and on this score complaint case cannot be quashed. On this aspect, a support can be drawn from the following decisions in Pal @ Palla Vs. State of U.P. (2010) 10 SCC 123. The Apex Court has observed as under:-

"26. Section 210 Cr.P.C. 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."

I do not find any merit in this 482 Cr.P.C. Application, which stands dismissed.

Interim order 27.8.2003 stands vacated.

Let a copy of this order be communicated to the trial Magistrate for him to proceed with the trial.

Dt.19.5.2014

Arvind/-