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2010 Supreme(Pat) 336
PATNA HIGH COURT
Sheema Ali Khan, J.
Md.Kadir @ Abdul Kadir
Versus
State Of Bihar
Criminal Miscellaneous No. 32002 of 2009 46669 of 2009
Decided On : MARCH 11, 2010
Headnote:Code of Criminal Procedure, 1973-Section 210-Procedure to be followed when there is a complaint case and Police Investigation in respect of the same offence Complainants husband alleged to have been killed by the petitioners and others-FIR istituted on 31.12.2008 against the petitioners and one others the charge sheet final form submitted on 30.3.2009 and cognizance taken 2.11.2009-for the same offence, complaint instituted on 18.2.2009 against 8 persons including the petitioners and cognizance taken on 23.3.2009-Cr. Misc 32002/2009 arising against the order of cognizance in complaint case whereas Cr., Misc. 46669/2009 arising against cognizance taken in police case-petitioners taking the plea that the court ought to have stayed hands and waited for the report u/s 173 Cr. PC and tried both the cases as one-Object behind Section 210 Cr. PC is three-fold; (i) to ensure that private complaints do not interfere with course of justice; (ii) to prevent harassment to accused twice; and (iii) to oblivate anomalies which might arise from taking cognizance of the same offence more than once-however, informant being not the same and apart from the petitioners, there are others who have to face trial, Section 210 Cr. PC. is not applicable in a case of this nature and consequently the accused named in the F.I.R. (the petitioners herein) would have to face the trial in both cases for the same offence which would amount to harassment and defeat the provisions of Section 210 Cr. PC-justice would be served if the two cases are tried and heard one after the other-Court below directed to record evidence in one case and stay its hand in pronouncing the judgment and then record the evidence in the second case and simultaneously dispose of the cases-prayer for quashing the order taking cognizance rejected in both the cases. (Paras 9 to 13 and 20)
1. The petitioners are aggrieved by the order dated 23.3.2009 passed in C. R. No. 233 of 2009 by which the Chief Judicial Magistrate, Madhubani has issued process against the petitioners for facing trial for the offences under Sections 302, 307, 120-B/34 of the Indian Penal Code.
2. The facts are that one Punam Devi filed a Complaint Case No. 233 of 2009 in which she has stated that her husband Gunanand Chaudhary was returning home from Darbhanga with his villager Hassamul Haque @ Rahat when he was intercepted and killed by certain persons. At paragraph 8 of the complaint petition, it has been stated that the Police had recorded a First Information Report lodged by Md. Hassamul Haque @ Rahat and after putting Rahat under pressure, only three persons had been made accused in this case whereas apart from Md. Kadir, Manikant Jha and Md. Kari, there were other persons involved in the occurrence. At paragraph 9 of the complaint petition, it has been stated that the police has submitted charge sheet against the informant Hassamul Haque @ Rahat and final form against the named accused persons. The complainant who is the wife of the deceased approached the Officer-in-charge for lodging the case which he refused to do so as a result of which she has filed this complaint case.
3. After conducting enquiry, the Court below has taken cognizance in the complaint case under Sections 302,307,120-B/34 of the Indian Penal Code and Section 27 of the Arms Act finding that the eight named persons in the complaint petition are responsible for the alleged offence of murder of the husband of the complainant.
4. The petitioners in this case are Md. Kadir, Manikant Jha and Md. Kari who were made accused in Pandaul (Sakari) Police Station Case No. 414 of 2008 and against whom final form was submitted by the Officer- in-charge of the Police Station.
5. Before dealing with the arguments made on behalf of the petitioners, it would be relevant to bring on record the facts with respect to Pandaul (Sakari) Police Station Case No. 414 of 2008 dated 3.12.2008. The informant of this case is Md. Hassamul Haque @ Rahat. He has given his written fardbayan before the Investigating Officer in which he has stated that while he was returning on a motorcycle alongwith the deceased Gunanand Chaudhary, they were intercepted by Md. Kadir, Manikant Jha and Md. Kari. Md. Kadir and Md. Kari who were armed with revolvers and who fired at Gunanand Chaudhary, whereupon he fell down from the motorcycle. The informant ran for help and reached the Police Station informing them of the occurrence. As stated earlier, this case was investigated and final form was submitted as far as the named accused persons were concerned and charge sheet was submitted against the informant Md. Hassamul Haque @ Rahat. The Court below has deferred with the charge sheet and has taken cognizance on the basis of the materials in the case diary against the named accused persons Md. Kadir, Manikant Jha and Md. Kari and the informant Hassamul Haque.
6. I may make a note that in the order dated 2.11.2009 passed in Pandaul (Sakari) Police Station Case No. 414 of 2008, the Court below has noticed that a complaint petition has been filed in which cognizance has been taken and the accused persons are facing trial in Sessions Trial No. 222 of 2009.
7. The only point raised on behalf of the petitioners is that the Court hearing the complaint petition ought to have followed the procedure under Section 210 of the Code of Criminal Procedure, which reads as follows :
"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 tr
