High Court Punjab-Haryana High Court

Hardial Singh & Others vs Bachan Singh & Another on 1 December, 2008

Punjab-Haryana High Court
Hardial Singh & Others vs Bachan Singh & Another on 1 December, 2008
 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH



                       Criminal Miscellaneous No. M-31679 of 2004
                                   Date of Decision: December 01, 2008


Hardial Singh & Others
                                                             .....PETITIONER(S)

                                       VERSUS


Bachan Singh & Another
                                                            .....RESPONDENT(S)
                                .        .      .


CORAM:               HON'BLE MR. JUSTICE AJAI LAMBA


PRESENT: -           Mr. A.P.S. Deol, Advocate, for the
                     petitioners.

                     Mr.   J.S.   Lalli,                Advocate,         for
                     Mr.   T.S.  Sangha,                Advocate,         for
                     respondent No.1.

                     Mr. Kamaldeep Singh                    Sidhu, Deputy
                     Advocate    General,                   Punjab,   for
                     respondent No.2.


                                   .     .      .

AJAI LAMBA, J (Oral)

                 This        petition         has      been     filed     under

Section    482    Cr.P.C.          for       quashing       complaint     dated

4.5.2002       filed     for       commission          of     offence     under

Section    3    of     the     Scheduled            Castes    and   Scheduled

Tribes    (Prevention          of       Atrocities)          Act,   1989    and

Section 506 IPC, and the order of summoning dated

6.1.2003, Annexure P-6.

Without adverting to the facts, suffice

it to say that initially FIR No.57 dated 7.4.2001

under Section 3 of the Scheduled Castes and
Crl. Misc. No. M-31679 of 2008 [2]

Scheduled Tribes (Prevention of Atrocities) Act,

1989 and Section 506 IPC was registered in Police

Station, Rampura, District Bathinda, at the instance

of Bachan Singh, respondent NO.1. The FIR has been

placed on record as Annexure P-1. Investigation was

conducted and on the basis of report, cancellation

of the case was ordered. Along therewith, it was

directed that the proceedings be initiated against

the respondent-complainant under Section 182 Cr.P.C.

The cancellation report has been placed on record as

Annexure P-2.

It seems that cancellation report was

not accepted and the matter was sent for further

investigation vide Order dated 18.1.2003. The matter

was again investigated and the investigating agency

again concluded that the case is false. Second time,

cancellation report dated 16.6.2003 was prepared and

submitted. Notice was issued to the complainant.

After recording the statement of the complainant, it

was yet again sent for further investigation vide

Order dated 13.12.2003. On investigation, 3rd time

again, it has been found by the investigating agency

that there is no truth in the allegations as no

person from the vicinity has substantiated the

allegations. Cancellation was again prepared the 3rd

time on 12.5.2004 which has been placed on record as

Annexure P-4. Complaint dated 4.5.2002 (Annexure

P-5) at issue in this petition, has been filed. The

complaint has been considered and the petitioners
Crl. Misc. No. M-31679 of 2008 [3]

have been summoned to stand trial vide Order dated

6.1.2003, Annexure P-6.

Learned counsel for the petitioners has

contended that prejudice has been caused to the

petitioners in so much as the Judge, Special Court,

had referred the matter for further investigation

for the first time on 18.1.2003. The matter was

still under investigation on the instructions and

directions of the Judge, Special Court, however,

dehors the report, Annexure P-2, the order of

summoning has been passed on 6.1.2003.

Learned counsel has further pointed out

that on the police report, the Special Court

proceeded to direct further investigation second

time vide Order dated 13.12.2003. Thus, on the one

side independently the complaint case has been dealt

with whereas on the other side, further

investigation has been ordered. The conduct of the

petitioners has been investigated and it has been

concluded by the investigating agency under Chapter

XII of the Code of Criminal Procedure that there was

no material to indicate commission of offence by the

petitioners. Not only this, first report

recommending cancellation has recommended that

proceedings be initiated against the respondent-

complainant under Section 182 Cr.P.C. It was legally

appropriate for the Judge, Special Court, to

consider the report submitted by the investigating

agency alongwith complaint and preliminary evidence.

 Crl. Misc. No. M-31679 of 2008                                            [4]



This     having       not     been     done,       prejudice          has       been

caused. In this regard, reference has been made to

Dilawar Singh Vs. State of Delhi, (2008)3 SCC

(Criminal) 330.

I have considered the issue.

The respondent-State has filed reply

wherein it has been admitted in Para 5 that the

matter is pending further investigation.

The facts clearly indicate that twice

over the Judge, Special Court, directed further

investigation. The investigation is in regard to the

same incident as is the subject matter of the

complaint. Further investigation has been ordered

under the procedure provided under the Code of

Criminal Procedure, and that too when the

complainant had objected to the acceptance of

cancellation report. The material collected during

investigation would assist the process of law and

administration of criminal justice and particularly

would help the Court in determining the conduct and

action of the petitioners in the context of the

allegations made by the respondent.

Section 210(1) Cr.P.C. reads thus:-

“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 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 conducting the investigation.

Crl. Misc. No. M-31679 of 2008 [5]

(2) If a report is made by the investigating police officer
under Section 173 and on such report cognizance of any
offence is taken by the Magistrate against any person who
is an accused in the complaint case, the Magistrate shall
inquire into or try together the complaint case and the case
arising out of the police report as if both the cases were
instituted on a police report.

(3) If the police report does not relate to any accused in
the complaint case or if the Magistrate does not take
cognizance of any offence on the police report, he shall
proceed with the inquiry or trial, which was stayed by him,
in accordance with the provisions of this Code.”

This issued came to be considered by the

Hon’ble Supreme Court of India in the case of

Dilawar Singh’s case (supra). Specific reference is

required to be made to Para 13 and 14:-

“13. The principle has been statutorily
recognised in Section 210 of the CrPC which
enjoins upon the Magistrate, when it is made to
appear before him either during the inquiry or the
trial of a complaint, that a complaint before the
police is pending investigation in the same matter,
he is to stop the proceeding in the complaint case
and is to call for a report from the police. After
the report is received from the police, he is to take
up the matter together and if cognizance has been
taken on the police report, he is to try the
complaint case along with the GR case as if both
the cases are instituted upon police report. The
aim of the provision is to safeguard the interest of
the accused from unnecessary harassment.

14. The provisions of Section 210 CrPC
are mandatory in nature. It may be true that non-
compliance of the provisions of Section 210
CrPC, is not ipso facto fatal to the prosecution
because of the provision of Section 465 CrPC,
unless error, omission or irregularity has also
caused the failure of justice and in determining
the fact whether there is a failure of justice the
Court shall have regard to the fact whether the
objection could and should have been raised at an
earlier stage in the proceedings. But even
applying the very same principles it is seen that in
fact the appellant was in fact prejudiced because
of the non- production of the records from the
police.”

Having considered the facts and

circumstances as noticed above, in the context of
Crl. Misc. No. M-31679 of 2008 [6]

provisions of Section 210 Cr.P.C. and the judgment

rendered by the Hon’ble Supreme Court in Dilawar

Singh’s case (supra), I am of the opinion that the

Special Judge has proceeded illegally and considered

the complaint dehors the report of the investigating

agency under Section 173 Cr.P.C. Rather the Special

Judge having directed further investigation, was

required to consider the report to be submitted by

the investigating agency and only after

consideration of the report in the context of the

complaint and other material that had come on the

record, issue was required to be addressed. This

having not been done, prejudice has been caused to

the petitioner. The Court was seized of the matter

in having considered the cancellation report and

having ordered further investigation. Without

referring to the report submitted by the

investigating agency, the issue could not have been

addressed and considered.

In view of the above, Order dated

6.1.2003 is hereby quashed. The matter is remitted

back to the Magistrate to enable him to proceed in

accordance with law as noticed hereinabove.

The parties are required to appear

before the Magistrate on 22.12.2008.

In view of the delay already caused, it

is directed that the investigating agency shall

present the report under Section 173 Cr.P.C. within

30 days from today. On consideration of the issue,
Crl. Misc. No. M-31679 of 2008 [7]

the matter would be decided by the Magistrate within

30 days thereof.


                                        (AJAI LAMBA)
December 01, 2008                          JUDGE
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