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1991 Supreme(Ori) 130
High Court Of Orissa
ARIJIT PASAYAT
DINABANDHU DAS - Appellant
Versus
BATAKRUSHNA DAS - Respondent
C. R. No. 485 Of 1987
Decided On : 07/19/1991
D.NAYAK, D.P.Dhal, J.P.GHOSH, P.K.DHAL, S.C.Sahoo, S.K.Nayak
S. 210 of the Code applies to cases where the same offense is being investigated by the police and a complaint has been filed.
Headnote:
CRIMINAL PROCEDURE CODE - SECTION 210 - STAY OF PROCEEDINGS IN COMPLAINT CASE DURING POLICE INVESTIGATION - SECTION 202 - EXAMINATION OF WITNESSES IN COMPLAINT CASE - SCOPE AND PURPOSE.
Fact of the Case:
Petitioners challenged the order of the Sub-divisional Judicial Magistrate (S.D.J.M.) taking cognizance u/s. 395 of the Indian Penal Code (IPC) against them. The petitioners argued that the S.D.J.M. should have stayed the inquiry or trial on the basis of the complaint petition in terms of S. 210(1) of the Code and that cognizance was illegal as all the witnesses named in the complaint petition had not been examined.
Finding of the Court:
The Court held that S. 210 of the Code deals with a situation of the same offense and not the same occurrence. The Court further held that the requirement of S. 202(2) proviso of the Code, which mandates the examination of witnesses in a case triable by the Court of Session, was not contravened as the complainant had undertaken not to examine any witness in addition to those who had been examined already.
Issues: 1. Whether S. 210 of the Code applies to the facts of the case? 2. Whether cognizance was illegal as all the witnesses named in the complaint petition had not been examined?
Ratio Decidendi: 1. S. 210 of the Code applies to cases where the same offense is being investigated by the police and a complaint has been filed. In this case, the police were investigating the same offense as alleged in the complaint petition, and therefore, the S.D.J.M. was correct in staying the proceedings of the complaint case. 2. The requirement of S. 202(2) proviso of the Code was not contravened as the complainant had undertaken not to examine any witness in addition to those who had been examined already.
Final Decision: The Court dismissed the revision application.
ARIJIT PASAYAT, J.
( 1 ) PETITIONERS assail correctness of the order passed by learned Sub-divisional Judicial Magistrate, Kendrapara (in short 's. D. J. . M. ') in I. C. C. No. 75 of 1987 in taking cognizance u/s. 395 of the Indian Penal Code, 1860 (in short 'i. P. C. ') against them.
( 2 ) FACTUAL antecedents in short are that on 13-2-1987 one Srikanta Kumar Das, son of present opposite party No. 1, submitted a written report in Nikirai Police Out-Post to the effect that at about 9 a. m. that day while his father was returning after taking bath, he was assaulted by some of the present petitioners and when his mother ran to the place of occurrence she was also assaulted. Allegations of brick batting and pelting of stones during the course of incident were also made. Alleging inaction by the police, he filed a complaint petition on 13-3-1987 in the court of the S. D. J. M. , Kendrapara, which was registered as I. C. C. No. 75/87. An inquiry was undertaken u/s. 202, Code of Criminal Procedure, 1973 (in short 'the Code' ). Several witnesses were examined on 3-3-1987 and 22-4-1987. During pendency of the complaint case charge -sheet was submitted on 27-7-1987 u/ss. 447, 341, 323, 294/34, IPC in G. R. Case No. 120 of 1987, and cognizance was taken on the said date against petitioner Nos. 4, 5, 6, 8, 9, 12 and 17. On 9-9-1987 cognizance was taken u/s. 395, IPC against present petitioners and process was issued to them. The order taking cognizance is subject-matter of assail in this revision application.
( 3 ) PETITIONERS assail correctness of the order on two grounds, viz. (i) the learned S. D. J. M. should have stayed inquiry or trial on the basis of the complaint petition in terms of S. 210 (1) of the Code and he having not done so the whole proceeding is vitiated; and (ii) all the witnesses named in the complaint petition having not been examined, cognizance as taken is illegal. The learned counsel for opposite party No. 1, however, submits that the provisions of S. 210 (1) have no application to facts of the case and also examination of witnesses named in the complaint petition is not a statutory mandate.
( 4 ) THE points urged need careful consideration. Coming to the question whether S. 210 has application to the facts of the case it may be stated that the object of S. 210 is to prevent miscarriage of justice. This section was inserted in the Code on the recommendation of the Joint Committee of Parliament with the following object:"it has been brought to the notice of the Committee that sometimes when a serious case is under investigation by the police, some of the persons concerned file a complaint and quickly get an order of acquittal either by collusion or otherwise. Thereupon the investigation of the case becomes infructuous leading to miscarriage of justice in some cases. To avoid this, the Committee has provided that where a complaint is filed and the Magistrate has information that the police is also investigating the same office (offence?) the Magistrate shall stay the complaint case. If the police report (under S. 173) is received in the case, the Magistrate should try together the complaint case and the case arising out of the police report. But if no such report is received, the Magistrate would be free to dispose of the complaint case. This new provision is intended to secure that private complainants do not interfere with the course of justice. "sub-sec. (1) provides that if it is brought to the notice of the Magistrate during an inquiry of trial relating to a complaint case that investigation by the police is going on in respect of the same offence (underlining by me) to which the complaint case relates, he must stay the proceedings of the complaint case and call for a report from the Police Officer who is conducting such investigation. Word 'offence' has been defined in S. 2 (n) of the Code to mean any act or omission made punishable by any law for the time-being in force. In other words, it is the act or om
