Allahabad High Court
Dharamdeep And 5 Others vs State Of U.P. And Another on 13 July, 2021
Bench: Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 71
Case :- APPLICATION U/S 482 No. - 10306 of 2021
Applicant :- Dharamdeep And 5 Others
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Kuldeep Singh Chahar
Counsel for Opposite Party :- G.A.
Hon'ble Raj Beer Singh,J.
Heard learned counsel for the applicants and learned A.G.A. for the State.
The present application under Section 482 Cr.P.C. has been filed for quashing the order dated 15.02.2021 passed by Additional Sessions Judge, Court No. 3, Mathura in criminal revision no. 481 of 2019 as well as for quashing the order dated 12.12.2018 passed by Additional Chief Judicial Magistrate, Court No. 2, Mathura in complaint case no. 10459 of 2018, under Sections 498A, 323, 504, 506 IPC and Section 3/4 of D.P. Act, Police Station Baldev, District Mathura.
It has been argued by learned counsel for the applicants that applicants are innocent and they have been falsely implicated in this case. It was submitted that wife of applicant no. 1 has lodged an FIR against the applicants on 18.01.2017 vide crime no. 8/2017, under Sections 498A, 323, 377, 313, 504, 506 IPC and Section 3/4 of D.P. Act, but the charge-sheet was filed only against applicant no. 1. Learned counsel has submitted that thereafter opposite party no. 2 has filed a complaint case on similar allegations and applicants were summoned for the offence under Sections 498A, 323, 504, 506 IPC and Section 3/4 of D.P. Act vide order dated 12.12.2018. The revision against that order was also dismissed by the court of Additional Sessions Judge, Court No. 3, Mathura vide order dated 15.02.2021. It was submitted that in view of the entire facts no prima facie case is made out against the applicants.
Learned A.G.A. has opposed the application and argued that there is no illegality in the impugned orders and that applicants may take recourse to the provisions of Section 210(2) Cr.P.C.
Heard learned counsel for the parties and perused the record.
At this stage it would be pertinent to mention the provisions of Section 210 Cr.P.C., which reads as under:
"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 Cr.P.C. 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."
In the case of Pal Alias Palla vs. State of U.P. reported in 2010 (10)SCC 123, Hon'ble Apex Court has held 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) 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."
It would also be relevant to mention that in the case of R.K. Khanna vs. State And Others reported in 2003(11)SCC 758, Hon'ble the Apex Court considering the facts of that matter observed as under:
"3. It appears from the records of this case that a complaint had been filed under Section 200 CrPC on 24-4-1990 and at that stage an FIR had also been registered with the SHO and the police was investigating into the allegations made in the FIR. The Magistrate, however, in the complaint case took cognizance by order dated 21-31991 on a finding that there are sufficient reasons to proceed against the two accused persons under Section 304-A IPC and directed issuance of summons. Against the said order of issuance of summons, the accused moved the revisional court and having been unsuccessful therein, moved the High Court for quashing of the complaint proceeding. In the police case which started on the basis of the FIR given, the police ultimately filed the final form under Section 173 CrPC and the complainant appeared before the Magistrate and also protested.
4. The High Court in the impugned judgment being of the opinion that the Magistrate not having exercised his powers under sub-section (1) of Section 210 CrPC and not staying the complaint proceeding, has committed serious error and, therefore, the complaint proceeding should be quashed.
5. Having examined the provisions of Section 210 CrPC, more particularly subsection (3) of Section 210, we have no hesitation to come to the conclusion that the High Court committed serious error in exercising its power under Section 482 CrPC in quashing the complaint case merely because the Magistrate had not exercised his powers by staying the complaint case under sub-section (1) of Section 210 Cr.P.C. and, therefore, the impugned order cannot be sustained. We accordingly set aside the impugned order of the High Court and direct that the complaint case be proceeded with. This appeal stands allowed accordingly."
Considering above discussed position of law, in the instant case perusal of record shows that first information report was filed against all applicants and after investigation charge-sheet was submitted only against applicant no. 1 and thereafter a complaint case was filed regarding same dispute against all applicants and they were summoned vide impugned summoning order.
In view of the facts and circumstances of the case, it is open to the applicants to move an application under Section 210 Cr.P.C. for appropriate orders by the court concerned. Accordingly it is directed that in case applicants move an application under Section 210 Cr.P.C. before the court below within a period of 45 days from today, the same shall be considered and decided by the court concerned expeditiously in accordance with law. For a period of 45 days and in case such an application is made by the applicants, till the disposal of such application, no coercive action shall be taken against the applicants in pursuance of the impugned orders passed in the aforesaid case.
With the aforesaid observations, the instant application under Section 482 Cr.P.C. is finally disposed of.
Order Date :- 13.7.2021
Anand
