Ramdas Ambadas Ukrande vs Shivaji S/O Baburalo Bhandawale ...
2006 Latest Caselaw 918 Bom

JUDGMENT

J.H. Bhatia, J.

1. Heard.

2. To state in brief, the petitioner is the original complainant in R.C.C. No. 414/1995. According to him, he is owner of tractor No. MHA-7934 with trolly No. MTB 6104. He had purchased the said tractor and trolly in the year 1980. According to him, he had given the said tractor and trolly to the Respondents on hire at the rate of Rs. 10,000/-p.m. about 8 months before filing the complaint on 4.12.1995. As per the contract the Respondents were to pay amount of Rs. 80,000/- towards hire of the said tractor and trolly but during the said period they had paid Rs. 25,000/-only. As the amount of Rs. 55,000/-had remained unpaid, the petitioner took his tractor, trolly and other agricultural implements back and kept the same in his land S. No. 362 at Terkheda. However, on 2.12.1995, Respondents Nos. l to 4 came to his field and forcibly took away tractor and trolly inspite of objection raised by sons of the petitioner. Therefore, on the same day, petitioner went to Yermala Police outpost to lodge a report but as nobody was present there, he went to Kallam Police Station and lodged the F.I.R. According to him, no cognizance of the F.I.R. was taken nor any action was taken by the Police. Therefore, on 4.12.1995, he lodged a complaint against Respondents Nos. l to 4 for the offence punishable Under Sections 379, 392 read with Section 34 of I.P.C. in the Court of J.M.F.C. Kallam. On 5.12.1995, the J.M.F.C. issued summons to the accused No. l to produce the said tractor and trolly before the Court. On 18.12.1995, the Respondents Nos. l and 2 appeared before J.M.F.C. Kallam, contending that the report dated 2.12.1995 was already submitted by the petitioner at Police Station about the same subject matter and therefore, the proceedings of the complaint should be stayed, in view of provisions of Section 210 of Cr.P.C. On 6.1.1996, the learned Magistrate passed an order staying the proceedings and he also called report from the Police Officer conducting the investigation. Being aggrieved by the said order the petitioner filed this writ petition and sought to quash the order dated 6.l.1996 passed by J.M.F.C. Kallam. He also sought a direction to P.S.O. Kallam Police Station to seize the stolen property and produce before the trial Court.

3. During pendency of this petition, P.S.O. was directed to submit his affidavit which he did on 1.2.1996. In that report, he submitted that the report lodged by the petitioner on 2.12.1995 does not appear to be true as neither the petitioner nor any other person attended out-post Yermala or Kallam Police Station for recording of statement in support of the report. He further contended that in view of the order passed by the J.M.F.C. staying further proceedings in the investigation, no further investigation is carried out by the Police. He averred in the affidavit that a report was already submitted before J.M.F.C. Kallam on 17.1.1996 to the above fact. Alongwith the affidavit of A.S.I. Kerba, the copy of report dated 17.1.96 was also submitted. After submission of the said report on 13.2.1996, this Court passed an order and directed the respondents to take the tractor, trolly and other agricultural implements forthwith to Police Station Kallam and the P.S.O. was directed to attach the said property under panchanama and to submit a report accordingly before this Court. Admittedly, as per the said order the tractor and the trolly were produced at the Police Station and same were attached. Since then the said tractor and trolly are lying at the Police Station.

4. Period of more than 10 years has already lapsed after filing of the report at the Police Station and the complaint before J.M.F.C. Mr. Sontakke Patil, learned Counsel for the petitioner urged that provisions of Section 210(1) would not be applicable as no investigation was ever in progress and as Police had not taken any cognizance of the report lodged by the petitioner, the order passed by the Magistrate staying proceedings of the complaint should be quashed and vacated and learned J.M.F.C. should be directed to proceed with the complaint as per law. Mr. Kendre, learned Counsel for Respondents Nos. l to 4, on the other hand contended that as per the report dated 17.l.1996 submitted by the Police before J.M.F.C. some investigation was already made but as the Police felt that the investigation was stayed because of the order dated 6.l.1996 passed by J.M.F.C., the Police should be directed to complete investigation and to file the report as per law. According to him, statements of several witnesses may be required to be recorded to find out the truth about the transaction between the two parties. According to respondents Nos. l to 4, the respondent No. l had in fact purchased the tractor and trolly from the petitioner and has paid the price to him but he did not obtain any documents or receipt at the time of making the payment because of close relationship between the two. Whether the petitioner had given tractor and trolly to Respondent No. l on hire at the rate of Rs. 10,000/-p.m. or the Respondent No. l had purchased the tractor and trolly from the petitioner for consideration of Rs. 1,50,000/-is a disputed question.

5. But fact remains that as per the report dated 17.1.1996, submitted by P.S.O. before J.M.F.C. as well as affidavit of A.S.I. Kerba it appears that Police had not registered any offence and he had not made any investigation of the case. As per that report on 4.12.96, he had called both the parties for investigation into the matter. At that time, the Respondent NO. l had told that on 1.5.95 he had purchased the tractor and trolly for consideration of Rs. 1,50,000/-and from time to time he had also paid Rs. 1,40,000/-. As per the report, as soon as this disclosure was made by Respondent No. l, the petitioner left the Police Station stating that he was going to urinate but he never came back to the Police Station and went to the Court and lodged the complaint. As per the affidavit filed by A.S.I. it is clear that in view of the order passed by the Magistrate on 6.l.96, P.S.O. was under impression that investigation is also stayed and therefore, he did not make any investigation thereafter. From this it is clear that on the basis of F.I.R. lodged by the petitioner neither any offence was registered, nor investigation was made nor any investigation is in progress.

6. Section 210 Cr.P.C. provides that:

210. Proceldure 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 report, he shall proceed with the inquiry or trial, which was stayed by him, in accordance with the provisions of this Code.

From this it is clear that if during the enquiry or trial of a complaint case, it is pointed out to the Magistrate that in relation to the offence, which is subject matter of the enquiry or trial already an investigation by Police is in progress, the Magistrate shall stay the proceeding of such enquiry or trial and call for a report from the investigating officer. Sub-section (2) of Section 210 provides that if a Police report or charge-sheet is filed Under Section 173 Cr.P.C. and on that report cognizance is taken by the Magistrate, the case arising out the charge-sheet as well as the complaint shall be enquired into or tried together. Sub-section (3) provides that if the Police report does not relate to any of the accused in a complaint case or if the magistrate does not take cognizance of any offence on such police report, he shall proceed with the enquiry or trial which was stayed by him in accordance with provisions of Cr.P.C. In view of the provisions of Sub-section (1) it is clear that to stay the proceedings or the private complaint, it is necessary that it should be made out that investigation about the same subject matter by the Police was in progress. Unless it can be pointed out that such investigation was in progress, the enquiry or trial in the private complaint cannot be stayed.

7. In the present case as pointed out above it appears that Police never registered the offence nor made any investigation and as per the affidavit filed by A.S.I. Police were under impression that there was stay to the investigation, therefore, no further action was taken for the purpose of investigation. As such it is clear that no investigation was in progress and the basic requirement of Section 210(1) was not fulfilled, when the impugned order was passed by the Magistrate. Mr.Sontakke Patil, learned Counsel contended that in such circumstances and in view of the delay of more than 10 years, it will be appropriate that the Magistrate should be directed to proceed with the complaint as per law instead of waiting for investigation by the Police. In support of his contention, he placed reliance upon S.M. Akhtar v. State of Bihar and Anr. 1987 (I) Crimes 136, wherein the learned Single Judge of Patna High Court, in view of the facts of that case found that it was not pointed out from the record of the case that investigation was in progress in relation to the offence which was subject matter of the enquiry or trial held by the Magistrate and therefore, basic fact to attract provisions laid down Under Section 210 of the Code is not available. He also placed reliance upon Dr. Kumudini Padhi v. Prasanta Kumar Mandal 1989 Cri. Law Journal 1861. In that case the F.I.R. was lodged some times in March 1985 with Police but no Police report was submitted till July 1985. Having waited for a long period for the Police report, the learned C.J.M. took cognizance of the private complaint Under Section 363 I.P.C. This order of C.J.M. was upheld by the learned Single Judge of Orissa High Court. In the present case almost ll years have passed, neither any investigation is made nor any report is submitted by the Police Under Section 173 Cr.P.C. therefore, no purpose will be served for waiting of the report any more. It will be necessary for the Magistrate to proceed with the complaint as per provisions of Cr.P.C. for the purpose of enquiry or trial.

8. For the aforesaid reasons, the Writ Petition is allowed. The impugned order dated 6.l.1996 passed by J.M.F.C. Kallam is hereby quashed and set aside. The learned J.M.F.C. is directed to proceed with the enquiry or trial of the complaint filed by the petitioner as per provisions of Cr.P.C. without waiting for the Police report. After making enquiry, if any, Under Section 202 Cr.P.C., the learned J.M.F.C. may pass appropriate order about custody of the tractor and trolly, which are attached by Kallam Police Station as per order of this Court, after hearing both the parties on their rival claims. As the matter is very old the learned Magistrate shall expedite the hearing and dispose of the case as early as possible.

9. Rule made absolute accordingly.