Bombay High Court
Ajay Nandkumar Choudhari And Another vs Harjitsing Tirathsing Sawhney And ... on 3 February, 2025
2025:BHC-AUG:3969
13WP1383-21.odt
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
13 CRIMINAL WRIT PETITION NO. 1383 OF 2021
1. Ajay S/o. Nandkumar Choudhari,
Age: 38 years, Occu: Business,
R/o. Flat No.24 & 25, V. K. Market,
Devki Apartment, Pandariba, Aurangabad.
2. Nandkumar S/o. Venkatdas Choudhari,
Age: 62 years, Occu: Business,
R/o. Flat No.24 & 25, V. K. Market,
Devki Apartment, Pandariba, Aurangabad ...PETITIONERS
(Original Accused No.1 & 2)
VERSUS
1. Harjitsing S/o. Tirathsing Sawhney,
Age: 58 years, Occu: Business,
R/o. House JH No.5/155/1-P-1,
Osmanpura, Aurangabad. ...(Original Complainant)
2. The State of Maharashtra
(Through P.P. High Court, Aurangabad) ...RESPONDENTS
....
Mr. Satyajit S. Bora, Advocate for the Petitioners
Mr. Harjitsing Tirathsing Sawhney, Respondent No.1-Party in
person
Mr. K. K. Naik, APP for Respondent No.2-State
....
WITH
CRIMINAL APPLICATION NO. 330 OF 2022
IN WP/1383/2021
1 of 15
(( 2 )) 13WP1383-21
Harjitsing S/o. Tirathsing Sawhney,
Age: 58 years, Occu: Business,
R/o. House JH No.5/155/1-P-1,
Osmanpura, Aurangabad. ...Applicant
(Respondent No.1)
VERSUS
1. Ajay S/o. Nandkumar Choudhari,
Age: 38 years, Occu: Business,
R/o. Flat No.24 & 25, V. K. Market,
Devki Apartment, Pandariba, Aurangabad.
2. Nandkumar S/o. Venkatdas Choudhari,
Age: 62 years, Occu: Business,
R/o. Flat No.24 & 25, V. K. Market,
Devki Apartment, Pandariba, Aurangabad ..(Non-Applicants)
(Petitioners)
3. The State of Maharashtra ...(Non-Applicant)
(Formal Party)
...
Mr. Harjitsing Tirathsing Sawhney, Applicant-party-in-person
Mr. Satyajit S. Bora, Advocate for Non-Applicant No. 1 & 2
Mr. K. K. Naik, APP for the Non-Applicant No.3-State
....
CORAM : Y. G. KHOBRAGADE, J.
DATE : 03.02.2025
ORAL JUDGMENT :-
1. Rule. Rule made returnable forthwith and with consent
of both the parties, heard finally at the stage of admission.
2. Heard at length Adv. Bora, the learned counsel for the
Petitioners and Mr. Harjitsingh S/o Tirathsing Sawhney party-in
person and the learned APP Mr. Naik for the State.
2 of 15
(( 3 )) 13WP1383-21
3. The Respondent No. 1 / original Complainant filed
Criminal Application No.330 of 2022 in Criminal Writ Petition
No.1383 of 2021 and prayed for production of documents. The
Petitioners / original Accused have not seriously resisted the
Application. Since, the Respondent No. 1 / Original complainant
wanted to produce documents, production of documents granted.
Hence, Criminal Application No. 330 of 2022 is disposed off.
4. The Petitioners in Criminal Writ Petition No.1383 of 2021
prayed for quash and set aside the order dated 04.08.2021 passed by
the learned Additional Session Judge,-14, Aurangabad, in Criminal
Revision Application No.203 of 2017, whereby affirmed the order of
issuance of process passed by the learned Judicial Magistrate First
Class, Aurangabad, on 09.02.2016 in Regular Criminal Case No. 2039
of 2015 for the offence punishable u/s 379 of I.P.C.. The Petitioners
have also prayed for quash and set aside R.C.C. No. 2039 of 2015
pending on the file of learned Judicial Magistrate First Class,
Aurangabad. The Petitioners 1 & 2 are original Accused Nos. 1 & 2,
whereas, the Respondent No. 1 is the original Complainant in R.C.C.
No. 2039 of 2015.
3 of 15
(( 4 )) 13WP1383-21
5. Having regard to the submissions canvassed on behalf of
both the sides, I have gone through record. It is a matter of record
that, Mr. Tirathsing Sawhney, the father of present Respondent No.1
and Shri. Paramjitsingh Tirathsingh Sawhney had filed three
complaints bearing S.C.C. Nos. (i) 8817 of 2007 (Tirathsingh Vs. Ajay
Nandkumar Choudhari), (ii) 9030 of 2007 (Tirathsingh Vs. Ajay
Nandkumar Choudhari) and (iii) 9031 of 2007 (Tirathsingh Vs. Ajay
Nandkumar Choudhari) for the offences punishable under Section
138 of the Negotiable Instruments Act (hereinafter referred as N.I.
Act).
6. On 01.03.2013 after full fledged trial, the learned Judicial
Magistrate First Class, Aurangabad passed judgment and order in
S.C.C. No.8817 of 2007 and S.C.C. No.9030 of 2007 and acquitted
the accused therein for the offence punishable under Section 138 of
the N.I. Act.
7. On 18.06.2013, the learned Judicial Magistrate First Class
passed an order in S.C.C. No.9031 of 2007 (Tirathsingh Sawhney)
(dead) through his legal heir Shri Harjitsing S/o. Tirathsing Sawhney,
and thereby acquitted the accused therein.
4 of 15
(( 5 )) 13WP1383-21
8. Being aggrieved by the said order of acquittal of the
accused persons, the Complainant, through his legal heir filed
Criminal Application No.2221 of 2013 with Application No.2222 of
2013 and Application No.3680 of 2013 and challenged the orders of
acquittal of accused by seeking leave to file Appeal.
9. On 21.11.2014, this Court (Coram: T. V. Nalawade, J.)
passed an order and refused to grant leave to file Appeal against the
orders of acquittal of the accused persons under Section 138 of the
Negotiable Instruments Act.
10. In case-in-hand it appears that, the Respondent No.1
lodged a F.I.R., on 22.01.2011 with Jinsi Police Station, Aurangabad
alleging that, on 14.01.2011 his Activa Scooter bearing Registration
No.MH-20-AV-911 along with important documents which were kept
in dicky of Scooter stolen by some unknown person. On the basis of
said report a Crime No. I-3 of 2011 registered with Jinsi Police Station
against the unknown person for the offence punishable under Section
379 of IPC.
11. Though the Investigating Officer conducted investigation,
but failed to trace out the Activa Scooter as well as the thief,
5 of 15
(( 6 )) 13WP1383-21
therefore, the Investigating Officer filed B-Summary Report on
01.04.2011.
12. Being aggrieved by said order of acceptance of B-
Summary, the Respondent No.1/Informant filed Criminal Revision
Application No.285 of 2011. The learned Additional Sessions Judge,
Aurangabad passed an order in Criminal Rev. Appln. No. 285 of 2011
on 08.06.2012 and allowed said Revision by setting aside order of
acceptance of B-Summary passed by the learned Magistrate on
01.04.2011 and remanded trial to the learned Judicial Magistrate for
disposal according to the law by giving opportunity of hearing to the
State. However, in the meanwhile, Respondent No.1 filed private
Complaint R.C.C. No.2039 of 2015 before the JMFC, Aurangabad
alleging that, as per his report a Crime No. I-3 of 2011 was registered
against the Petitioner / Accused and ors., however, the Investigating
Officer under the influence of the accused persons filed a B-Summary
report. Respondent No.1 / Complainant further alleged that, the
accused No.1 (Ajay Nandkumar Choudhari) & Accused No.2
(Nandkumar S/o Venkatdas Choudhari) with the help of accused
No.3 (Paramjit Singh T. Sawhney) stolen the original Cheque Book,
Bank memo and Notices which are subject matter of S.C.C. No.8817
6 of 15
(( 7 )) 13WP1383-21
of 2007, S.C.C. No.9030 of 2007 and S.C.C. No.9031 of 2007.
Further, the accused Nos. 1 to 3 have given different statements in
respect of possession of original cheques. Therefore, the accused 1 to
3 have committed an offence under Section 379 of IPC, but the Police
authority filed B-Summary Report without proper investigation.
13. Needless to say that, on 09.02.2016, the learned JMFC
passed an order and issued summons to the accused Nos. 1 to 3 for
the offence under Section 379 of the IPC for committing theft of
Activa Scooter and documents.
14. Being aggrieved by the order of issuance of summons the
accused Nos. 1 & 2 filed Criminal Revision No.203 of 2017. On
08.07.2021, the learned Sessions Court passed an order and
dismissed criminal revision of the Accused 1 to 3. The accused No.3 /
Paramjit Singh T. Sawhney filed the Cri. Rev. No.68 of 2016. On
05.06.2017, the learned Additional Sessions Judge, Aurangabad
passed an order and allowed Cri. Rev. No.68 of 2016 and set aside
order dated 09.02.2016 passed by the learned JMFC in R.C.C.
No.2039 of 2015.
15. Being aggrieved by said order, Respondent No.1 /
7 of 15
(( 8 )) 13WP1383-21
Original Complainant filed Cri. W. P. No.1458 of 2017. On 04.09.2018
(Coram: Mangesh S. Patil, J.) passed an order holding that, the earlier
Crime is still pending and further progress in the matter is awaiting in
view of rejection of summary report by the Learned Magistrate, the
Petitioner instead of filing the Second complaint, he would have
insisted for further progress in the earlier matter. This Court further
observed that, the learned Additional Sessions Judge has simply
pointed out couple of irregularities in the form of absence of list of
witnesses, which is mandatory in view of Sub Section 2 of Section
204 of the Cr.P.C., and failure on part of the Magistrate for not taking
recourse to Section 210 of Cr.P.C.
16. Thereafter, the original accused Nos.1 and 2 filed
Criminal Revision 203 of 2017 challenging order of issuance of
summons dated 09.02.2016 after lapse of considerable period. On
04.08.2021, the learned Additional Sessions Court passed the
impugned order and dismissed the Revision as it is barred by
limitation.
17. Needless to say that, while passing the order dated
06.07.2017, the learned Additional Sessions Judge considered scope
of Section 210 of Cr.P.C., and held that, when the proceeding is
8 of 15
(( 9 )) 13WP1383-21
commenced on the private complaint, it is mandatory on part of the
Magistrate to scrupulously follow Section 204 and 210 of Cr.P.C. The
judgment and order dated 04.09.2018 passed by this Court in Writ
Petition No.1458 of 2017 itself shows that earlier crime was
registered in respect of theft of Activa Scooter. On investigation, the
I.O. filed B-Summary, which was accepted by the learned Magistrate
but as per order dated 05.06.2017 passed in Cri. Rev. No.68 of 2016
by the learned Revisional Court, inquiry was in progress, however, the
Petitioner instead of filing of second complaint could have insisted for
further progress in the earlier matter.
18. Under these facts and circumstances of the case,
questions are arises that,
(a) Whether the trial of two cases arising out of the Police
report and the private complaint can be tried together?
OR
(b) Whether the private complaint filed by the Informant
subsequent to the acceptance of B-Summary report can be
continued independently?
19. In order to ascertain the answer it will be appropriate to
incorporate Section 210 of Cr.P.C.,which provides as under;
9 of 15
(( 10 )) 13WP1383-21
Sec. 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."
20. On bare reading of provisions of Section 210 of Cr.PC., it
makes clear that, during an inquiry or trial relating to a complaint
case, if it is brought to the notice of the Magistrate that investigation
by the police is in progress in respect of the same offences, he shall
stay the proceeding of the complaint and called for the record of the
10 of 15
(( 11 )) 13WP1383-21
police Officer conducting investigation.
21. In case of Harjinder Singh vs State Of Punjab And Others
(1985) 1 SCC 422, it is held that, under Section 223 of the Code to
club and consolidate two cases, one on a police challan and other on
complaint, if the prosecution version in two cases are materially
different, contradictory and mutually exclusive should not be
consolidated but should be tried together with the evidence in two
cases being proceeded separately, so that both the cases could be
disposed of simultaneously.
22. In case of Sankaran Moitra vs Sadhna Das & Another
(2006) 4 SCC 584, wherein the Hon'ble Supreme Court considered
the question that, whether Section 197 of the Code of Criminal
Procedure is attracted and sanction as required by that section is sine-
qua-non for prosecuting the appellant and other police officers and
whether the Chief Judicial Magistrate was justified in taking
cognizance of the complaint filed by the complainant and proceeding
with the complaint. Secondly, whether the case is covered by Section
210 of the Code and the private complaint filed by the complainant in
the Court of Chief Judicial Magistrate on 28.5.2001 against the
accused persons for the offences punishable under Sections 302, 201,
11 of 15
(( 12 )) 13WP1383-21
109 and 120-B of IPC could be proceeded with or required to be
stayed?
23. In this context, the Hon'ble Supreme Court considered the
scope of Section 210 of Cr.P.C. and held that before invoking Section
210 of the Code the following conditions must be satisfied, following
criteria such as:
(i) there must be a complaint pending for inquiry or trial;
(ii) investigation by the police must be in progress in relation
to the same offence;
(iii) a report must have been made by the police officer under
Section 173; and
(iv) the Magistrate must have taken cognizance of an offence
against a person who is accused in the complaint case.
In paragraph No.81, the Hon'ble Supreme Court considered the
case of Harjinder Singh cited (supra) and held that, both the cases
can not be clubbed together since the prosecution version quite
different in those cases.
24. In case of Banchhanidhi Mahapatra And Ors. vs State Of
Orissa And Anr. 1992CRILJ1739, the learned Orissa High Court
observed that, the FIR was lodged and the Magistrate has taken
12 of 15
(( 13 )) 13WP1383-21
cognizance on the basis of final police report and in the meantime, a
complaint case was filed for the same offences, cognizance of which
was taken. Under this circumstance, Section 210 would not apply
because complaint was instituted and charge-sheet had already
submitted and no police investigation was in progress. Therefore,
clubbing of both cases together is impermissible.
25. In case-in-hand it prima facie appears that, the
Investigating Officer filed a B-Summary Report in respect of the
Crime No. I-3/2011 registered with Jinsi Police Station for the offence
under Section 379 on the report lodged by the Respondent No.1, but
the Investigating Officer had filed B-Summary report. On 01.04.2011,
the learned Judicial Magistrate passed an order accepting B Summary
Report.
26. It is not in dispute that, on 08.06.2012, the learned
Additional Sessions Judge passed the order in Cri. Rev. Appln.
No. 285 of 2011 and set aside order of acceptance of B-Summary
passed by the learned Magistrate on 01.04.2011 and remanded trial
to the learned Judicial Magistrate for disposal after providing
opportunity of hearing to both sides. However, in the meanwhile, the
Respondent No.1 filed private Complaint R.C.C. No.2039 of 2015
13 of 15
(( 14 )) 13WP1383-21
before the JMFC, Aurangabad. The Respondent / Complainant
alleged that, on the basis of Report lodged by him a Crime No. I-3 of
2011 registered against the Petitioner/Accused and ors., but due to
influence of the accused, the Investigating Officer filed a B-Summary
report.
27. On perusal of Police Report as well as the private
complaint it depicts that, the Respondent/complaint alleged about
stealing of original Cheque Book, Bank memo and Notices by the
Accused persons. On 04.09.2018 this Court passed the order in Cri.
W. P. No.1458 of 2017 holding that, earlier crime was registered in
respect of theft of Activa Scooter. The learned Magistrate had
accepted B-Summary but by virtue of order dated 05.06.2017 passed
in Cri. Rev. No.68 of 2016, investigation in Activa Scooter theft Report
is in progress. Therefore, instead of filing of second complaint, the
Complainant could have insisted for further progress in the earlier
matter.
28. Since, the Respondent No.1 filed the private complaint
subsequently to the Police Report for theft of Scooter and other, the
documents are pertained to the same cause of action but the
Investigating Officer failed to conduct a proper investigation, and no
14 of 15
(( 15 )) 13WP1383-21
charge sheet has been filed. Therefore, as per the law laid down and
discussed hereinabove, the proceedings in R.C.C. No.2039 of 2015
and crime No I-3/2011 are required to be tried together by the
learned Judicial Magistrate. Accordingly, I have answered question
(a), holding that, the trial of two cases i.e. arising out of the police
report and private complaint can be conducted together. In view of
above discussion, the Criminal Writ Petition No.1383 of 2021 and
Criminal Application No.330 of 2022 are hereby disposed off.
Accordingly, Rule is discharged.
[ Y. G. KHOBRAGADE, J. ]
HRJadhav
15 of 15
