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2015 Supreme(Cal) 329
IN THE HIGH COURT OF CALCUTTA
SANKAR ACHARYYA, J.
In the matter of : Pabitra Das & Ors. - Appellants
Vs.
Ruma Das & Anr. - Respondents
C.R.R. No. 1068 of 2014
Decided On : 30.07.2015
For the petitioners: Mr. Subhasish Pachhal; adv., Mr. Rameswar Sinha; adv.
For the opposite party/wife : Mr. Debashis Banerjee; adv.
The Court of Session is competent to try a Magistrate triable complaint case when there is a complaint case and a police case arising out of the same subject matter against the same accused.
Headnote:
CRIMINAL PROCEDURE - WITHDRAWAL OF COMPLAINT CASE - SECTION 210 AND SECTION 26 OF THE CODE OF CRIMINAL PROCEDURE, 1973 - HELD, COMPLAINT CASE AND POLICE CASE ARISING OUT OF THE SAME SUBJECT MATTER AGAINST THE SAME ACCUSED CAN BE TRIED TOGETHER BY THE COURT OF SESSION.
Fact of the Case:
Petitioners filed a revisional application challenging the order of the Sessions Judge, Howrah, rejecting their prayer for withdrawal of a complaint case from the Court of Chief Judicial Magistrate, Howrah, and transfer of the same to another Court for conjoint trial with a police case.
Finding of the Court:
The Court held that the impugned order of the Sessions Judge was liable to be set aside as it failed to consider the provisions of Section 26 of the Code of Criminal Procedure, 1973, which allows the Court of Session to try a Magistrate triable complaint case.
Issues: Whether the complaint case and the police case arising out of the same subject matter against the same accused can be tried together by the Court of Session.
Ratio Decidendi: The Court relied on Section 26(a)(ii) of the Code of Criminal Procedure, 1973, which empowers the Court of Session to try a Magistrate triable complaint case.
Final Decision: The Court set aside the impugned order of the Sessions Judge and directed the Sessions Judge to pass an order for withdrawal of the complaint case from the concerned Court of Magistrate and for trial of both the complaint case and the Sessions Trial together by the same Court of Session.
SANKAR ACHARYYA, J.
This revisional application has been filed by five accused petitioners against de facto complainant/complainant Ruma Das as Opposite Party (in short O.P.) No. 1 and The State of West Bengal as Opposite Party No. 2. The petitioners have alleged in substance that the Opposite Party No. 1 filed a complaint against the petitioners as accused under Section 406/34 of the Indian Penal Code in the Court of learned Chief Judicial Magistrate, Howrah and that complaint has been registered in that Court as Complaint Case No. 192 C of 2011. Simultaneously, said Ruma Das filed another complaint under Section 156(3) of the Code of Criminal Procedure, 1973 on 15.03.2011 in the same Court against these petitioners and in pursuant to the order of learned Chief Judicial Magistrate the Sankrail Police Station Case No. 133 of 2011 dated 17.03.2011 under Sections 498A/406/325/308/506/34 of the Indian Penal Code and under Sections 314 of the Dowry Prohibition Act was started treating that complaint as first information report (in short FIR). After investigation Police submitted charge-sheet No. 248/11 dated 31.05.2011 under Sections 498A/406/325/308/506/34 of the Indian Penal Code against all the present petitioners as accused. In both the complaint case (192 C/2011) and Police case (Sankrail Police Station Case No. 133 of 2011 dated 17.03.2011) cognizance has been taken. The police case has been committed to the Court of Sessions and it is awaiting for trial. All the petitioners as accused persons in both the cases have been granted bail. Since the offence punishable under Section 406/34 of the Indian Penal Code is triable by Magistrate of the first class the complaint case is pending in the Court of learned Chief Judicial Magistrate, Howrah. Petitioners made a prayer before learned Sessions Judge, Howrah for withdrawal of the Complaint Case No. 192 C of 2011 from the Court of learned Chief Judicial Magistrate, Howrah and transfer of the same to another Court for conjoint trial but their prayer has been rejected by learned Sessions Judge, Howrah in Criminal Misc. Case No. 1431 of 2013 on 26.02.2014. Challenging that order the instant revisional application has been filed for quashing of the proceeding being Case No. 192 C of 2011 under Section 406/34 of the Indian Penal Code now pending in the Court of learned Chief Judicial Magistrate, Howrah.
At the time of hearing this case no one appeared to represent the Opposite Party No. 1 but learned counsels for petitioners and the State participated in the hearing.
On perusal of the impugned order passed by learned Sessions Judge, Howrah it appears that learned Sessions Judge has considered the provisions of Section 210 of the Code of Criminal Procedure, 1973 but has omitted to consider the provisions of Section 26 of that Code by exercise of which any offence under the Indian Penal Code (including Section 406/34) may be tried by the Court of Session. In this case it is undisputed that in both the complaint case and police case present petitioners are accused and in both the said cases Section 406/34 of the Indian Penal Code is common. In the complaint case excepting Section 406/34 of the Indian Penal Code there is no other section but in the police case there are some other sections also.
Be that as it may, Section 210 of the Code of Criminal Procedure, 1973 reads as:-
“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 on 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 concluding the investigation.
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