Pal @ Palla vs State Of Uttar Pradesh

application under Section 482 Cr.P.C. 2

(Crl.M.A.No.29076 of 2007) with certain

directions which were in keeping with the orders

of the learned Magistrate impugned in the said

petition.

3. On 1st July, 1996, the Appellant herein

lodged a First Information Report at Nanauta

Police Station in the District of Saharanpur,

U.P., in regard to offences alleged to have been

committed by Yashpal, Pramod, Dharma, Kalu and

Kanwar, all residents of Village Bhojpur under

Nanauta Police Station, under Sections 147, 323

and 302 I.P.C. The said five accused were

alleged to have committed the murder of Bhartu,

the father of the Appellant. According to the

Appellant, the Investigating Officer began to

conduct the investigation in a manner which was

geared to favouring the accused. The Appellant,

accordingly, filed a Writ Petition (Crl.) No.1166

of 1997, together with Gyan Singh, before the

Allahabad High Court and prayed for the 3

investigation to be entrusted to an independent

agency.

4. While the aforesaid writ petition was pending

before the High Court, the Investigating Officer

submitted a charge-sheet against one Phool Singh

and Vishwas on 23rd April, 1997, despite the fact

that they had not been named by the Appellant in

the First Information Report lodged by him.

Subsequently, another charge-sheet was filed by

the Investigating Officer on 1st August, 1997, in

which Gyan Singh, who was one of the petitioners

in Writ Petition (Criminal) No.1166 of 1997, was

named as an accused.

5. The writ petition came up for hearing before

the High Court on 8th September, 1997, and was

disposed of by the High Court which came to the

conclusion that the investigation was improper,

but, since charge-sheet had already been filed,

the relief sought for by the Appellant for

investigation by a different agency had become 4

infructuous. The writ petition was, accordingly,

disposed of by observing that the Appellant could

seek other remedial measures available to him,

including filing of a protest petition.

Thereafter, on 3rd February, 1998, the Appellant

filed a protest petition before the Judicial

Magistrate, Deoband, District Saharanpur, and the

same was treated as a complaint and statements

were recorded by the learned Magistrate under

Sections 200 and 202 Cr.P.C. On 5th September,

1998, the learned Magistrate issued summons to

all the five accused who were named in the

complaint and whose names also appeared in the

First Information Report lodged by the Appellant.

6. It is against the said order of the learned

Magistrate issuing summons that an application

was filed by the five accused under Section 482

Cr.P.C. in Criminal Misc. Application No.857 of

1999, challenging the said order which was,

however, dismissed by the High Court on 15th May,

2002. The High Court upheld the order passed by 5

the learned Magistrate on 5th September, 1998, but

directed that both the cases, one on the basis of

the charge-sheet filed by the police and the

other on the basis of the complaint filed by the

Appellant, would run simultaneously.

7. After their application had been disposed of

by the High Court on 16th May, 2002, the accused

persons made an application before the learned

Sessions Judge on 11th April, 2004, praying that

the two cases be tried separately, since, in the

meantime, both the cases had been committed to

the Court of Sessions for trial. After their

cases were committed to the Court of Sessions,

only one sessions trial, being S.T.No.772 of

2003, was commenced. The learned Sessions Judge

framed charges against the accused named in both

the cases, i.e., the charge-sheet submitted by

the police and the complaint filed by the

Appellant. As a result, all those persons,

against whom the police had submitted a charge-

sheet, were the witnesses named by the Appellant 6

in his First Information Report. The accused in

both the cases denied the charges and claimed to

be tried. The charges against both sets of

accused were framed in the same Sessions Trial

No.772 of 2003 and the entire proceeding was

being conducted both in respect of the complaint

filed by the Appellant and that filed by the

investigating authorities.

8. Difficulties arose when the prosecution

started examining its witnesses according to the

charge-sheet filed by the police and the Sessions

Judge proceeded in the trial of cases adopting

the procedure provided under Section 210(2)

Cr.P.C., although, it was pointed out to the

learned Sessions Judge that since none of the

accused in both the cases was common, the

procedure prescribed under Section 210(2) Cr.P.C.

could not be legally adopted and the procedure

prescribed under Section 210(3) would be

applicable to the facts of the case. It was also

pointed out that earlier also the High Court had 7

directed the cases to be tried simultaneously and

the accused in the complaint case had themselves

made an application on 11th April, 2004, for

separate trials of the two cases.

9. On 31st October, 2007, the prosecution

examined its witnesses mentioned in the charge-

sheet and an application was made by the

Appellant for closing the evidence of the

prosecution, which was rejected by the learned

Sessions Judge upon observing that it was the

prerogative of the prosecution to examine or not

to examine any witness and the complainant had no

say in the said matter. It is at this stage on

12th December, 2007, that the Appellant moved the

Allahabad High Court under Section 482 Cr.P.C.

praying for a direction that the trial of the two

cases be held separately. The said application

came up for hearing before the learned Single

Judge of the High Court on 14th December, 2007,

and was disposed of by the learned Judge upon

holding that the procedure adopted by the 8

Magistrate did not suffer from any infirmity or

error in clubbing both the cases in which

witnesses have been mentioned.

10. Being aggrieved by the order of the High

Court in upholding the order of the Magistrate

clubbing the two cases together, the Appellant

filed the special leave petition, out of which

the present appeal arises.

11. The question, therefore, which arises for

consideration in this appeal is whether a common

trial can be held in respect of two cases, one on

the basis of the charge-sheet filed by the police

and the other on the basis of a protest petition

which has been treated as a complaint having been

committed to the Court of Sessions, although,

none of the accused in the said two cases are

common. In fact, as indicated hereinabove, the

accused in one of the cases are the witnesses in

the other and vice versa.

9

12. At this stage, it may be indicated that at an

earlier point of time, the learned Magistrate had

taken cognizance on the protest petition filed by

the Appellant, treating the same to be a

complaint, and summons were issued against the

persons arraigned as accused therein. The

accused persons challenged the order of the

learned Magistrate before the High Court in

Criminal Misc. Application No.857 of 1999, which

was dismissed on 16th May, 2002, but with the

direction that the case arising out of the police

report and the other case arising out of the

complaint should be tried simultaneously by the

Court of Sessions in order to find out as to

whose version was true and who were the real

culprits.

13. On the basis of the said directions, the

learned Magistrate clubbed the two proceedings

together, in keeping with the provisions of

Section 210 of the Code, as there could be

possibility of inconsistent findings. When the 10

same was questioned before the High Court, it

held that the Magistrate appeared to have adopted

the correct procedure for clubbing both the cases

and that the complainant would be at liberty to

examine the witnesses shown in the complaint case

in order to serve the cause of justice. The

trial court was also directed to give permission

to the complainant to examine the witnesses cited

by him.

14. Mr. R.D. Upadhyay, learned counsel, who

appeared for the appellant, urged that Section

210 Cr.P.C. provides for the procedure to be

followed when there is a complaint case and a

police investigation in respect of the same

offence. He submitted that Sub-Section (2) of

Section 210 makes it clear that if the Magistrate

takes cognizance of an offence on a report filed

by the Investigating Officer under Section 173

Cr.P.C. against any person, who is also an

accused in a complaint case, the Magistrate shall

inquire into or try the two cases together, as if 11

both the cases have been instituted on a police

report. Mr. Upadhyay submitted that Sub-Section

(3) of Section 210 was not attracted to the facts

of this case since it deals with a procedure

where, if the police report did not relate to any

accused in the complaint case or the Magistrate

did not take cognizance of any offence on the

police report, he would proceed with the inquiry

or trial, which might have been stayed by him

under Sub-Section (1) in accordance with the

provisions of the Code.

15. According to Mr. Upadhyay, the clubbing of

the two cases together was not in accordance

either with the provisions of Sub-Section (2) of

Section 210 Cr.P.C. or the directions given by

the High Court in the earlier proceedings between

the parties. Mr. Upadhyay urged that having

regard to the peculiar facts of the case, where

the accused in one case is the witness in the

other, difficulties were bound to arise at the

time of examination of witnesses in a common 12

trial. On the other hand, if the two cases were

tried separately, as directed by the High Court

and the witnesses were examined separately, it

would be possible to arrive at the truth after

comparing the two sets of evidences that would be

led in the two separate cases. Learned counsel

submitted that the order passed by the High Court

was contrary to the provisions of Section 210(2)

Cr.P.C. and was liable to be set aside.

16. In support of his submissions, Mr. Upadhyay

firstly referred to the decision of this Court in

Harjinder Singh vs. State of Punjab & Ors.

[(1985) 1 SCC 422], where in an almost identical

situation, this Court, while interpreting Section

223 Cr.P.C., held that clubbing of the two cases,

one on a police challan and the other on a

complaint, was not permissible and if the

prosecution versions in the two cases were

materially different, contradictory and mutually

exclusive, as in the instant case, such cases may

be ordered to be tried together, but not 13

consolidated. In other words, the evidence is to

be recorded separately in both the cases and they

should be disposed of simultaneously so that the

procedure does not infringe the provisions of

Article 20(2) of the Constitution read with

Section 300 Cr.P.C.

17. In this regard reference was also made to an

earlier decision of this Court in Kewal Krishan

s/o Lachman Das vs. Suraj Bhan & Anr. [(1980

(Supp.) SCC 499], on which reliance had been

placed in Harjinder Singh's case (supra), where

the same views had been expressed and it had been

observed that the two cases should be tried

separately but by the same court to avoid risk of

two courts coming to conflicting findings. Mr.

Upadhyay submitted that Section 223 Cr.P.C. did

not contemplate clubbing of cases, though, it

provides for trial of two cases arising out the

same transaction, on a police report and on a

complaint, separately, but by the same court.

Learned counsel submitted that the High Court 14

was, therefore, wrong in clubbing the two cases

together in a single trial and the impugned order

was, therefore, liable to be set aside.

18. On behalf of the State of Uttar Pradesh, Mr.

Shail Kumar Dwivedi, learned Additional Advocate

General, tried to persuade us to take the view

which has been taken by the High Court in

clubbing the two cases together. He reiterated

the reasoning of the High Court that in view of

the fact that the High Court had earlier chosen

not to quash the order dated 5th September, 1998,

taking cognizance of the offence on the protest

petition filed on behalf of the Appellant herein,

the case arising out of the cognizance taken on

the police report was required to be tried

simultaneously with the other case by the Court

of Sessions in order to find out as to whose

version was true and who were the real culprits.

Mr. Dwivedi submitted that by clubbing the two

cases together, the Sessions Court had

substantially complied with the directions of the 15

High Court by trying the two cases together and

that having regard to the fact situation, the

Sessions Judge had no option but to club the two

cases together for trial. In fact, Mr. Dwivedi

contended that unless the two cases were clubbed

together, there could be a possibility of

inconsistent findings and that the High Court had

rightly held that the expression "simultaneously"

would mean that both the cases should be taken

together.

19. In support of his submissions, Mr. Dwivedi

firstly referred to the decision of this Court in

Khetrabasi Samual Etc. vs. State of Orissa

[(1969) 2 SCC 571], wherein, on the basis of

Section 252 of the Code of Criminal Procedure,

1898, this Court upheld the direction given by

the Magistrate to club the two cases together on

the ground that Section 239 of the Code allowed

the trial of a number of persons whether accused

of the same offence or of different offences, if 16

these were committed in the course of the same

transaction.

20. Reliance was also placed on another decision

of this Court in Dilawar Singh vs. State of Delhi

[(2007) 12 SCC 641], which, however, dealt with

the procedure to be adopted under Section 210

Cr.P.C., 1973, as a whole. Mr. Dwivedi urged

that the order passed by the High Court upholding

the order of the learned Magistrate, did not call

for any interference in the facts of this case.

21. Having heard learned counsel for the

respective parties, we are unable to accept the

submissions advanced by Mr. Dwivedi on behalf of

the State of Uttar Pradesh.

22. 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 17

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. 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 18

the provisions of the Code.

23. Although, it will appear from the above that

under Section 210 Cr.P.C. the Magistrate may try

the two cases arising out of a police report and

a private complaint together, the same, in our

view, contemplates a situation where having taken

cognizance of an offence in respect of an accused

in a complaint case, in a separate police

investigation such a person is again made an

accused, then the Magistrate may 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. That,

however, is not the fact situation in the instant

case, since the accused are different in the two

separate proceedings and the situation has, in

fact, arisen where prejudice in all possibility

is likely to be caused in a single trial where a

person is both an accused and a witness in view

of the two separate proceedings out of which the

trial arises. In our view, this is a case where 19

the decision in Harjinder Singh's case (supra)

would be more apposite. In the said case, the

question of Article 20(2) of the Constitution, as

well as Section 300 Cr.P.C., relating to double

jeopardy was considered. A similar situation has

arisen in this case where the version in the

complaint case and the police report are totally

different, though, arising out of the same

incident. In our view, this is a case where the

two trials should be held simultaneously but not

as a single trial.

24. The facts of the case also warrant that the

two trials should be conducted by the same

Presiding Officer in order to avoid conflict of

decisions. As was observed in Harjinder Singh's

case (supra) clubbing and consolidating the two

cases, one on a police challan and the other on a

complaint, if the prosecution versions in the two

cases are materially different, contradictory and

mutually exclusive, should not be consolidated

but should be tried together with the evidence in 20

the two cases being recorded separately, so that

both the cases could be disposed of

simultaneously.

25. Although, the High Court has relied on the

provisions of Section 210 of the Code in

directing that the two cases be clubbed together,

in our view, the fact situation does not really

attract the provisions contemplated in the said

section. On the other hand, as indicated

hereinabove, the trial court, in the unusual

facts of the case, is required to hear the two

cases together, though separately, and take

evidence separately, except in respect of all

witnesses who would not be affected either by the

provisions of Article 20(2) of the Constitution

or Section 300 Cr.P.C.

26. The order of the High Court impugned in the

appeal cannot, therefore, be sustained and is,

accordingly, set aside.

21

27. The trial court shall proceed to hear the two

cases simultaneously, but separately, in the

light of the observations made hereinbefore and

dispose of the same simultaneously as well, as

expeditiously as possible.

28. The Appeal is disposed of accordingly.

................................................J. (ALTAMAS KABIR)

................................................J. (A.K. PATNAIK) New Delhi Dated: 22.09.2010