IMPORTANT POINT
Private complaint - Mere registration of an FIR is no bar to filing of a private complaint.

Rajive Bhalla, J.

1. Prayer in this petition is for setting aside the order dated 6.4.2005, passed by the Judicial Magistrate, Ist Class, Dasuya, whereby the petitioners have been summoned, pursuant to a private complaint filed by private respondent.

2. The primary contentions raised by counsel for the petitioners are that on the same set of facts, an FIR was lodged by the police, pursuant to a complaint made by the complainant. After due investigation of the FIR, a report under Section 173 of the Cr.P.C. was filed and charges were framed against the petitioners, excluding petitioners No. 7 and 8, who are minor school going children. It is also contended that the aforementioned facts were never disclosed to the Magistrate, before the passing of the summoning order. It is, therefore, prayed that the complaint and the summoning order be quashed.

3. Counsel for the private respondent on the other hand submits that there is no bar to the filing of a criminal complaint even where an FIR has been lodged. In view of the provisions of Section 210(2) of the Cr.P.C. the trial in the FIR, as also the proceedings arising from the complaint have been clubbed, pursuant to an order passed by the Judicial Magistrate, Ist Class, Dasuya dated 19.12.2005 and, therefore, in essence, the grievance raised by the petitioners does not arise.

4. I have heard learned counsel for the parties and perused the paper book.

5. The mere registration of an FIR is no bar to the filing of a private complaint. However, as per the provisions of Section 210(2) of the Cr.P.C., if cognizance of any offence is taken by the Magistrate, pursuant to a report filed by the police under Section 173 Cr.P.C. after investigation of the FIR, the Magistrate shall inquire into or try together the complaint and the case arising out of the police report as if both the cases were instituted on a police report. The Judicial Magistrate, Ist Class, Dasuya vide order dated 19.12.2005 has clubbed the two proceedings. Even otherwise, in so far as the merits, it involves disputed questions of facts adjudication whereof has to be left to the wisdom of the learned trial Court, for adjudication, pursuant to the evidence, to be led by the parties. In so far as the plea that petitioners No. 7 and 8, were minors on the date of occurrence and were found to be innocent by the police, the petitioners would be at liberty to raise these pleas before the trial Court at an appropriate stage. The exemption from personal appearance granted to petitioners No. 7 and 8 vide order dated 19.8.2005 is made absolute and shall subsist during the trial.

6. The present petition stands disposed of accordingly.