The preventive measures under Sec.210 Cr.P.C. to avoid taking cognizance of the same offence twice and the possibility of trial together of the two cases if cognizance happens to be taken twice on private complaint and police report.

1. The 29 petitioners who have been made to figure as accused in Complaint Case No. 261(C) of 2002 pending in the Court of learned Sub-Divisional Judicial Magistrate, Bhabhua have preferred this application for quashing of the order dated 3.6.2003 passed by the learned Sessions Judge, Kaimur at Bhabhua in Criminal Revision No. 11 of 2003 whereby he has rejected the revision filed on behalf of the petitioners herein with a prayer that the order taking cognizance passed by the learned Sub-Divisional Judicial Magistrate, Bhabhua, was not in accordance with law.

2. One Faria Devi filed the aforesaid complaint case inter alia stating that on the alleged date and time of occurrence the petitioners variously armed with lethal weapons entered into her house, damaged the wall, assaulted the inmates and looted away the households articles including clothes and ornaments. It has also been alleged that the complainant went to the local police station to register a case but as the police was not inclined to institute a case hence the complaint. It has also been stated that the injured were removed to the Mohania Referral Hospital for treatment.

3. The learned Chief Judicial Magistrate, Bhabhua appears to have made over the complaint to the learned Sub-Divisional Judicial Magistrate who having held an inquiry under Sec.202 Cr.P.C. found a prima facie case for the offence under Sections 147, 323 and 380 of the Indian Penal Code to have been made out against the accused-petitioners and summoned them.

4. The primary grievance of the petitioners is that the learned inquiring court while passing the order dated 12.12.2002 taking cognizance, has acted in a mechanical manner without applying its judicial mind as a consequence whereof there has been miscarriage of justice. In this connection, it was sought to be submitted that for the same occurrence Ramgarh PS. Case No. 34 of 2002 was registered at the instance of one Jharia Devi and notwithstanding the same the learned Sub-Divisional Judicial Magistrate had taken cognizance of the complaint case which only indicated the non-application of judicial mind. The further contention of the learned counsel for the petitioners was that the learned Sub-Divisional Judicial Magistrate had failed to take into the account the facts that there was existence of previous enmity between the parties and resultant litigation amongst them and in that view of the matter the taking cognizance in the complaint case was an abuse of the process of the court.

5. Evidently, the grievance of the petitioners is that they are being prosecuted for the same offence twice over as they have been summoned in the complaint case and also face prosecution on the basis of the F.I.R. which would amount to a double jeopardy and prosecution twice over.

6. The answer to such a predicament lies under Sec.210 Cr.P.C. which is a new Section inserted on the recommendation of the Joint Committee of Parliament. The law is very clear for it provides that if in respect of an offence already taken cognizance of based on a private complaint the Magistrate comes to know that the police investigation is in progress he should under sub-section (1) stay the proceedings in the case started on the private complaint and call for the police report. This is a preventive measures. It is to avoid, as far as possible, taking cognizance of the same offence again and to avoid the separate trials for the same offence. The provision in sub-section (2) for trial together of the two cases if cognizance happens to be taken twice on private complaint and police report is only to avoid the anomalies arising from taking cognizance of the same offence more than once. In Suresh Thakur vs. State of Bihar, 1997(2) PUR 389, it was held that both the cases can be clubbed together for the purpose of inquiry or trial only when the accused in both the cases are common and not otherwise.

7. Due regard being had to the facts and the circumstances of the case, I find no meri