The provisions of Section 210(2) of the CrPC, which allow for the clubbing of a complaint case and a police case, are not applicable if the investigation in the police case is not pending at the time the complaint case is filed.

J. M. MAHAPATRA, J.

( 1 ) BOTH the revisions filed by the accused persons in the complaint case bearing ICC 17 of 1983 and G. R. Case No. 1299/82, are directed against the order dated 25-3-1986 of the learned Sessions Judge, Ganjam, Berhampur in Criminal Revisions 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 FIR on 29-10-82 at Berhampur Sadar Police Station alleging certain overtacts against eight persons who are included amongst the petitioners. The police investigated into the case and eventually submitted final report on 6-4-83. On perusal of the final report, refer notice and Case Diary, the learned Chief Judicial Magistrate took cognizance of the offences under Ss. 148, 324, 323 and 426/149, IPC. 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 28-2-83 against the present petitioners and two others since dead alleging overt acts as averred in. the plain paper F. I. R. of the G. R. case referred to earlier (G. R. Case No. 1299/82-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 Ss. 294, 148, 324 and 426, IPC and directed issuance of process against the accused persons, who entered appearance in due course. On 18-7-83 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 27-4-84, 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 S. 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 27-4-84 the complainant-informant preferred revisions before the learned Sessions Judge, Berhampur bearing Nos. 92/84 and 93 / 84. In both the revisions filed before the learned Sessions Judge, challenge is substantially on the question of discharge of the accused persons u/ S. 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. 93184, 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 u/ S. 244, Cr. P. C.

( 3 ) THE learned Sessions Judge in the two revisions referred to above, namely, Cri. Revisions Nos. 92/84 and 93/84, while allowing both the revisions set aside the order dated 27-4-84 of the learned Additional Chief Judicial Magistrate, Berhampur discharging the accused persons. He also set aside the order dated 18-7-83 of the Chief Judicial Magistrate directing clubbing of the com- plaint 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 complaint case and G. R. case sep