High Court of Punjab and HaryanaCRM-M/23407/2016disposed of

Harinek Singh And ORS v. Kulchain Singh And ANR

2022-12-20Mr. Justice Jagmohan Bansal15 pages

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-3- "10. That it is respectfully submitted that during the further investigation, the call details, Tower location of the mobile No. 84270-71928 of petitioner No. 1 Harnek Singh and mobile No. 98721-74055 of petitioner No.2 Ravinder Singh, for 23.06.2014, were procured whereby it has been found that petitioner No.1 and 2 were not present in Bholath on the day

-4of occurrence Similarly, the call detail and location of mobile No. 81464-82815 of complainant/Respondent No.1 Kulchain Singh for23.06.2014 was procured from where the location of the aforesaid phone number, on 23.06.2014from 11:00 am till 7:30 pm has been found to be at Sodhi Medicos, Bhogpur Road Bholath.

It has further been found that as per the opinion of doctor dated 10.09.2014, the possibility, that the injuries inflicted upon Respondent No.1 Kulchain Singh are caused with friendly hand, cannot be ruled out. That the medical officer vide his report dated 10.09.2014 has stated that '...opinion regarding injuries recorded in MLR TC/30/CHB/2014 dated 23.06.2014 all these injuries can be caused by assault. However, possibility of friendly hand cannot be ruled out. Circumstantial evidence should be taken into consideration...' Therefore, on the basis of the aforesaid facts the then Deputy Superintendent of Police, Sub-Division Bholath, vide his report dated 07.10.2014, has recommended to cancel the FIR No. 52 (supra), which was approved by the then Senior Superintendent of Police, Kapurthala.

Therefore, on the basis of the aforesaid report, Cancellation Report dated 30.11.2014, under Section173 Cr.P.C. has been prepared in FIR No. 52 (supra) and presented before the Ld. Trial Court, whereby Respondent No. 1 Kulchain Singh did not agree with the cancellation report and prayed for further investigation. Thus the aforesaid Cancellation Report was returned to Police Station Bholath for further investigation vide order dated 30.03.2015 passed by the Ld. Trial Court.

14. That it is respectfully submitted that in compliance with the order dated 30.03.2015 passed by the Ld. Trial Court, the further investigation in the present FIR No. 52 (supra) was conducted. But since no new evidence surfaced during the further investigation thus it was recommended to cancel the FIR No. 52 (supra).Thus, cancellation report in FIR No. 52 (supra) has been presented before the Ld. Trial Court on06.12.2018, on which the complainant/Respondent No.1 did not agreed with the same and requested for further investigation Thus, the Ld. Trial Court vide order dated

-511.02.2019 returned the cancellation report and ordered to conduct further investigation.

15. That it is respectfully submitted that since the cancellation report was again returned vide order dated 11.02.2019, thus further investigation in the present FIR No. 52 (supra) has been conducted. That no new evidence surfaced during the further investigation, thus it was recommended to cancel the FIR No. 52 (supra). Thus, cancellation report in FIR No. 52 (supra) has been again presented before the Ld. Trial Court on 02.12.2019 and the complainant/Respondent No.1 has been summoned in regard to the same but he did not appear before the Ld. Trial Court. Thus vide order dated 05.02.2021, the Ld. Trial Court returned the file to the Police Station." "12.

In the present complaint report from police was also called who submitted their report that in the present dispute an FIR was also registered but during inquiry the allegations against accused were found false and the police presented cancellation report in the Court. The said cancellation report is on record and vide order dated 30.03.2015 the same was sent back to the concerned police station for further investigation and further investigation is in progress. In this regard Hon'ble Punjab & Haryana High Court has submitted in Rameshwar Daya Versus Col. Ram Singh, Crl. Rev. No.100 of 1997 decided on 21.05.1998 that Magistrate who accepted the cancellation report is competent to take cognizance in the matter of complaint case of the same occurrence. In Rattan Chand Vs. Lachhman Dass and Others Criminal Misc. No.

M2895 of 2013 it has been laid down by Hon'ble Punjab & Haryana High Court that if the cancellation report is not accepted and the trial Court decides to take cognizance in the case, then both the matters i.e., the private complaint and the case instituted on the police report, would be clubbed and decided together simultaneously by it. In the present case also the Court is competent to take cognizance in the case.

13. After weighing the entire evidence on record, at this stage, there appear sufficient grounds to proceed against the

-6accused for the offences punishable under Sections 326/324/341/34 of Indian Penal Code. Let, accused Ravinder Singh, Harnek Singh and Savinder Singh be summoned for 18.02.2016 for the abovesaid offences by ordinary process on filing of copies of complaint and PF within seven days."

-7- "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 subjectmatter 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.

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."

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-955. In my view, even Section 210 of the Code has no application to the facts of the case on hand. Section 210 requires procedure to be followed when there is a complaint case and police investigation in respect of the same offence and 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

(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.

56. A bare reading of the above provision makes it clear that during an inquiry or trial relating to a complaint case, if it is brought to the notice of the Magistrate that an investigation by the police is in progress in respect of the same offence, he

-10shall stay the proceedings of the complaint case and call for the record of the police officer conducting the investigation.

57. The object of enacting Section 210 of the Code is threefold:

(i) it is intended to ensure that private complaints do not interfere with the course of justice;

(ii) it prevents harassment to the accused twice; and (iii) it obviates anomalies which might arise from taking cognizance of the same offence more than once. The Joint Committee of Parliament observed:

"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 file complaint and quickly get an order of acquittal either by cancellation 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 offence, the Magistrate shall stay the complaint case. If the police report (under Section 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 case 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."

(emphasis supplied)

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The provision for staying the proceedings in the complaint case under section 210, Criminal Procedure Code, as it appears to me, is not to stay the complaint case indefinitely till investigation in the police case is over or till the filing of the Final Report in the case, more so when the concerned police officer does not act expeditiously in the matter and/or does not submit report under section 210, Criminal Procedure Code to the Court at an early date.

Provision for stay of the proceedings of the complaint case is made under section 210, Criminal Procedure Code only for the purpose of calling for a report in the matter from the police officer conducting the investigation to examine whether or not to proceed with the complaint case in the facts and circumstances of the case and in view of the provisions in sub-sections (2) and (3) of section 210. If the said report is not submitted within a reasonable time it is not expected of the Court to keep the complaint case shelved for an indefinite period helplessly waiting all the time for the investigating agency to file its report as and when it chooses to do so as in this case.

In this case the Court should have directed the investigating officer to submit his report contemplated under section 210(1), Criminal Procedure Code within a particular time. On the failure of the investigating officer to file that report within a reasonable time the Court could have proceeded with the complaint case in accordance with law."

"15. Then the question is, what is the position, when the Magistrate is dealing with a report submitted by the police, under Section 173, that no case is made out for sending up an accused for trial, which report, as we have already indicated, is called, in the area in question, as a 'final report'? Even in those cases, if the Magistrate

-12agrees with the said report, he may accept the final report and close the proceedings. But there may be instances when the Magistrate may take the view, on a consideration of the final report, that the opinion formed by the police is not based on a full and complete investigation, in which case, in our opinion, the Magistrate will have ample jurisdiction to give directions to the police, under Section 156(3), to make a further investigation. That is, if the Magistrate feels, after considering the final report, that the investigation is unsatisfactory, or incomplete, or that there is scope for further investigation, it will be open to the Magistrate to decline to accept the final report and direct the police to make further investigation, under Section 156(3).

The police, after such further investigation, may submit a charge-sheet, or, again submit a final report, depending upon the further investigation made by them. If, ultimately, the Magistrate forms the opinion that the facts, set out in the final report, constitute an offence, he can take cognizance of the offence, under Section 190(1)(b), notwithstanding the contrary opinion of the police, expressed in the final report."

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