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ORISSA HIGH COURT
J.M. Mahapatra, J.
Banchhanidhi Mahapatra & Ors. - Petitioners
versus
State of Orissa & Anr. - Opp. Parties
Crl.Rev.Nos. 213 and 214 of 1986
Decided on 8-11-1991
Counsel for the parties:
For the Petitioners - B. Rath.
For the Opp. Parties - S.K. Das.
IMPORTANT POINT
It is not proper and permissible in law to club both the cases in terms of the provisions of section 210 Criminal Procedure Code in a case when the complaint case is filed after the closure of the investigation by the police in a police case.
Headnote:Criminal Procedure Code, 1973 - Section 210 - Indian Penal Code, 1860 - Sections 294, 148,324 and 426 - Some of the accused persons abused the members of the prosecution party and attacked them- Allegation that after assault some of them proceeded to the house of the complainant and damaged his house - Allegations contained in the F.I.R. and complaint petition do not lead to the conclusion that two sets of facts constituting offence have been made out in the two cases - Complaint case was instituted after the charge sheet in the case instituted on police report had already been submitted - Trial Court discharged the accused persons following the provisions of section 210 of the Code - Whether impugned order of discharge is sustainable? - (No, clubbing of both the cases was not permissible as provisions of section 210 of the Code do not apply to facts of the case) - Whether both the cases should be tried independent of each other? (No, proper case to adopt would be that the two cases should be tried together by the same court but should not be consolidated)
Held: No authority has been placed before me by the learned counsel on either side that section 210(1) Cr.P.C. not being applicable to the facts of a particular case, in that the complaint case was filed after the closure of the investigation by the police in the G .R. case, it would still be open to the trial court to try the common accused persons in both the G.R. and complaint cases as provided in sub-section (2) of section 210, Cr.P.C. and to try the case of residual accused persons of the complaint case in accordance with the procedure laid down in Criminal Procedure Code, that is, provisions contained in sections 244 to 24 7 in Chapter XIX, the Chapter meant for trial of warrant cases by Magistrate in respect of cases instituted otherwise than on police report. It is submitted by Mr. Rath that by trial of both the cases simultaneously the principle of double jeopardy would be attracted and for the same offence some accused would have to face the trial twice. There can be no two opinions that a person should not be tried for the same offence twice. In the instant case, however, cognizance has been taken by the learned Chief Judicial Magistrate both in the complaint case and in the case instituted on police report. The police had submitted final report, yet the learned Chief Judicial Magistrate on perusal of the police papers did not accept the final report, but took cognizance of the offence. In such a situation taking of cognizance by the learned Chief Judicial Magistrate not having been directly challenged before the Sessions Court or before this Court, it would be improper, to direct the enquiry as to whether the taking of cognizance in the police case was proper or improper, and consequently whether the trial on the basis of the police case should be proper, when on somewhat identical facts cognizance has been taken in the complaint case. To get over the difficulties posed in this case, I propose to follow the view taken by this Court in S.K. Pradhan's case (supra) following the ratio of the decision of the Apex Court in A.I.R. 1985 Supreme Court 404 (supra). (Para 9)
I would accordingly direct that proper course to adopt would be that the two cases should be tried together by the same court but should not be consolidated, that is to say, the evidence would be recorded separately in both the cases one after the other; except to the extent that witnesses for the prosecution who were common to both the cases be examined in one case and their evidence be read as evidence in the other. The trial court should, after recording the evidence of prosecution witnesses in one case, withhold the judgment and then proceed to record the evidence of the witnesses in the other case and, thereafter, he shall proceed to simultaneously dispose of the cases by two separate judgments, taking care that the judgment in one case is not based on the evidence recorded in the other case. (Para 10)
Result: Revisions dismissed.
ORDER
J.M. Mahapatra, J. - Both the revisions filed by the accused persons in the complaint case bearing I.C.C. 17 of 1983 and G.R. Case No. 1299/82, are directed against the order dated 253-1986 of the learned Sessions Judge, Ganjam, Berhpampur in Criminal Revision Nos. 92 and 93 of 1986. The facts of the case and the points of law as also the parties in both the cases being common, both the matters have been heard together and this common judgment would 'govern both.
2. The facts of the case may be briefly stated thus: Opposite party No.2 Susanta Kumar Hota lodged an F.I.R. on 29-10-1982 at Berhampur Sadar Police Station alleging certain oven acts against eight persons who are included amongst the petitioners. The police investigated into the case and eventually submitted final report on 6-4-1983. On perusal of the final report, refer notice and Case Diary, the learned Chief Judicial Magistrate took cognizance of the offences under sections 148, 324, 323, and 426/149 I.P.C. In the meantime opposite party No.2 Susanta Kumar Hota filed a complaint case in the court of the Chief Judicial Magistrate, Ganjam, Berhampur on 28-2-1983 against the present petitioners and two others since dead alleging oven acts as averred in the plain paper F.I.R. of the G.R. case referred to earlier (G.R. Case No. 1299/92-Berhampur P.S. Case No. 459/82). It is pertinent to mention the admitted position that on the report of the accused persons Banchhanidhi and others (petitioners herein), another police case bearing Berhampur P.S. Case No.457/82 had been started against the informant Susanta Kumar Hota (opposite party No.2 herein) and others. In the complaint case referred to above, the Chief Judicial Magistrate eventually took cognizance of the offence under sections 294, 148, 324 and 426, I.P.C. and directed issuance of process against the accused persons, who entered appearance in due course. On 18-7-1983, the Chief Judicial Magistrate passed order that the file in the complaint case be clubbed with the-G.R. Case No. 1299/82. Sometime, thereafter, the learned Additional Chief Judicial Magistrate who came to be in seisin of the case, on 27-4-1984, came to consider the question of framing of charge. He adopted the procedure provided for trial of the offence on police report and on consideration of the materials on record discharged all the accused persons under section 239, Cr.P.C. on the finding that there was no material for' taking cognizance against the accused persons. By the accused persons, the learned Addl. Chief Judicial Magistrate meant the accused persons both in the complaint case, as also in the case initiated on police report. Being aggrieved by this order dated 27-4-1984 the complainant-informant preferred revisions before the learned Sessions Judge, Berhampur bearing Nos. 92/84 and 93184. In both the revisions filed before the learned Sessions Judge, challenge is substantially on the question of discharge of the accused persons ,under section 239, Cr.P.C. It was stated that without considering all the materials collected in course of the investigation, the learned trial Court was not justified to discharge the accused persons. It was further contended in the revision No. 93/84, that the order of discharge of the accused persons in complaint case ICC 17/83 was wholly illegal and before directing the discharge, he should have recorded the evidence on the side of the complainant as provided for under section 244, Cr.P.C.
3. The learned Sessions Judge in the two revisions referred to above namely, Crl. Revision Nos. 92/84 and 93/84, while allowing both the revisions set aside the order dated 27-4-1984 of the learned Additional Chief Judicial Magistrate, Berhampur discharging the accused persons. He also set aside the order dated 18-7-1983 of the Chief Judicial Magistrate directing clubbing of the complaint case with the G .R. Case. In essence the direction of the learned Sessions Judge was that the trial court was to proceed with the co
