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
avin