Khushal Singh and six others & Ors. v. State of Uttarakhand and another

Mr. Gopal Krishan Verma, Advocate for the applicants Mr. Amit Bhatt, Addl. GA for the State Mr. M.S. Pal, Sr. Advocate with Mr. V.S. Pal, Advocate for respondent no.2 HON. DHARAM VEER, J. By means of this petition, moved under Section 482 of The Code of Criminal Procedure, 1973 (for short Cr.P.C.), the petitioners/applicants have sought quashing of the summoning order dated 9.11.2004 passed by Addl. Judicial Magistrate Ist Class, Kashipur in criminal complaint case no.2385/2004, Prem Kandpal v. Khushal Singh and others, relating to offences punishable under Sections 147, 148, 504, 427, 352, 395 and 397 of The Indian Penal Code, 1860 (for short, the IPC) as well as the order dated 22.8.2006 passed by learned Sessions Judge, Udham Singh Nagar. Heard learned counsel for the parties and perused the entire material available on file. Brief facts of the case are that on 7.9.2004 respondent no.2 Prem Kandpal lodged a report at P.S. Bajpur, District Udham Singh Nagar against the applicants which was registered as Case Crime No.391/2004 under Sections 147, 148, 504, 427, 352, 395 and 397 of IPC. After lodging of the FIR, the matter was investigated and on completion of investigation, the Investigating Officer submitted a charge sheet against the applicant under Sections 147, 148, 504, 427 2 and 352 of IPC in the court, on the basis of which, learned Judicial Magistrate, Kashipur, vide order dated 2.11.2004 took the cognizance of the offence against the applicant and also summoned the applicants. In between, when the aforesaid case was under investigation, respondent no.2 filed a complaint before Judicial Magistrate, Kashipur against the applicants u/Ss 395/397/147/148/504/506/323/352/427 of IPC on 12.10.2004, which was registered as criminal complaint case no.2385 of 2004. In support of the complaint, the complainant examined himself u/s 200 Cr.P.C. and filed certain documentary evidence. After hearing learned counsel for the complainant and perusing the material available, learned Judicial Magistrate Ist Class, Kashipur found that prima facie the offences under Sections 395 and 397 of IPC are also made against the applicants, hence, vide order dated

9.11.2004, he summoned the applicants. Thereafter, the respondent no.2 requested the court to commit the case to the court of Sessions, on which, after considering the fact that the I.O. has submitted charge sheet against the applicants u/Ss 147, 148, 504, 427 and 352 of IPC only and that no charge was filed u/Ss 395 and 397 of IPC by the I.O., learned Magistrate vide order dated 11.7.2005 did not commit the case to the court of Sessions. Against the said order dated

11.7.2005, the respondent no.2/complainant preferred a revision before Sessions Judge, Udham Singh Nagar, on which, learned Sessions Judge, Udham Singh Nagar vide order dated 22.8.2006 allowed the revision and dismissed the order dated 11.7.2005 and sent the matter back to the court concerned for disposal of the matter afresh in view of the observations made in the body of the judgment. Against the said summoning order dated 9.11.2004 passed by Judicial Magistrate and the order dated 22.8.2006 passed by Sessions Judge, the applicants have preferred the present application u/s 482 of Cr.P.C. before this Court. Learned counsel for the applicants submitted that the cognizance in respect of the police case was taken by the 3 Magistrate on 2.11.2004 and the cognizance in respect of the complaint case was taken by the Magistrate on 9.11.2004. Hence, he confined his prayer only upto the extent that both the cases shall be directed to try together as if both the cases were instituted upon the police report. He has referred to 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." A perusal of sub-clause 2 of Section 210 Cr.P.C. makes it clear that if a report is submitted by the Investigating Officer under section 173 Cr.P.C. and if on the said report cognizance is taken by the Magistrate against the accused, who was also accused in the complaint case, the Magistrate shall enquire into and try the complaint case and the case arising out of the police report as if both cases instituted on the police report. Learned Additional Government Advocate and learned Senior Counsel have conceded the position of facts and law as has been laid down under section 210 of Cr.P.C. 4 After considering the entire facts and circumstances of the case and in view of the above legal proposition, the application under section 482 Cr.P.C. is disposed of with the direction to the court below to decide the criminal complaint case no.2385 of 2004, Prem Kandpal v. Khushal Singh and others and criminal case no.2465 of 2004, State v. Khushal Singh and others, in accordance with section 210 (2) Cr.P.C. and in view of the observations made above. (Dharam Veer, J.)

4.8.2010 RG