Bhutka Gope and Others vs Anuplal Sah

Anant Singh, J.—This application by the accused in a criminal trial is directed against an order dated 8-3-1965 passed by a Magistrate, whereby, he has decided to follow the procedure of a complaint case, as provided in Section 252 of the Criminal Procedure Code, because cognizance of the offence was taken on a complaint. The petitioners went in revision to the Sessions Judge and an Additional Sessions Judge has rejected it.

It appears that, on 11-3-1964, one Sadanand Mishra lodged a first information report before the police under Sections 147 and 324 of the Indian Penal Code, alleging that these petitioners had formed an unlawful assembly, and some of them caused some injuries with deadly weapons to the informant and three others. The case was pending investigation by the police.

On 20-3-1964, however some nine days after the holding of the first information report by Sadanand, Anuplal Sah, who is the sole opposite party in the present application, filed a complaint before the learned Sub-divisional Magistrate against the petitioners in relation to the same occurrence, in respect of which a first information report had been lodged earlier by Sadanand. In this complaint, however, there was also a case of dacoity made out, said to have been committed in the house of the complainant, Anuplal Sah. On the complaint of Anuplal Sah, the learned Subdivisional Magistrate took cognizance only of the offences under Sections 448 and 325 of the Indian Penal Code on 27-4-1964, and transferred the case for trial to the court of Shri B. P. Sinha, Magistrate first class. The trial of the case had not proceeded, when, on 19-9-1964, the police submitted charge-sheet against the petitioners u/s 147 of the Indian Penal Code, in the case, which had been instituted on the first information report of Sadanand, and, on the same day, the learned Subdivisional Magistrate took cognizance of this case also and transferred it to the court of the same Magistrate, Sri B. P. Sinha, for disposal. On a petition filed by the petitioners accused, on 8-3-1965, the two cases were amalgamated by the learned trial court and order to be tried together.

A question, however, arose before the learned trial court, whether the procedure provided for the trial of a complaint case in Section 252 of the Code of Criminal Procedure, or the one provided for the trial of a case on charge-sheet by the police in Section 251 A. Criminal Procedure Code, should be followed. The learned trial court, by the impugned order decided that, because cognizance of the offence was initially taken on the complaint filed by Anuplal Sah, the procedure prescribed for the trial of a complaint case should be followed.

Learned counsel, Sri Rana Pratap Singh, appearing for the petitioners, has relied on a decision of this Court in Harbans Singh Vs. Daroga Singh and Others, to say that the effect of the order of amalgamation of the two cases, one instituted on police charge-sheet and the other started on the complaint of the complainant, was that the complaint case was merged with the police case and, therefore, the case cannot be treated to have been started initially on the complaint. In that case a question arose, whether the right of appeal to the complaint, as provided in Section 417(3) of the Code of Criminal Procedure, was available, when cognizance of the case was taken on the police charge-sheet and it was answered in the negative. It should be noticed that, in the aforesaid case, the informant had lodged a first information report before the police and a copy of it had been forwarded to the Sub-divisional Magistrate concerned. During the pendency of the investigation of the case by the police, on behalf of the informant a protest petition was filed and this protest petition was treated as a complaint.

Thus, there were two cases started. The police, ultimately, submitted charge-sheet and the learned Sub-divisional Magistrate took cognizance of the case on 6-6-1956. In the meantime, the complaint case, which was being postponed from day to day, was also placed before the learned Sub-divisional Magistrate on 6-6-1956 and, on that day, the two cases were ordered to be amalgamated. The case, after a joint trial of the two cases, ended in acquittal. The complainant, when he claimed the right of appeal u/s 417(3) of the Code of Criminal Procedure, was found to have no such right, because it was held that the case essentially proceeded on the charge-sheet of the police.

The facts of the aforesaid case have obviously no application to the facts of the present case. It would appear that, in this case, cognizance was taken and even earlier, on the complaint of the opposite party It was at a later stage, that cognizance of the case was taken also on the charge-sheet of the police, although the first information report in the police case had been filed much earlier to the filing of the complaint.

The Supreme Court, in Jamuna Singh and Others Vs. Bhadai Sah, has laid down the test, when cognizance will be deemed to have been taken in a case Although the question, in the aforesaid case, arose in a different connection, it was held that, when the Magistrate examined the complainant u/s 200 of the Code of Criminal Procedure and took cognizance, it will be deemed that cognizance was taken on the complaint, even though subsequently police submitted charge-sheet.

As it has been seen earlier, cognizance of this case was taken on the complaint and, therefore, it must be treated as a complaint case, even though the police also submitted charge-sheet subsequently. Learned counsel for the petitioners would, however, argue that the petitioners would be greatly prejudiced, since they cannot have access to the statements of the witnesses recorded by the police during the investigation of the case. But the learned Additional Sessions Judge has observed that the petitioners should have no difficulty in getting a copy of those statements when asked for, and, if there would be any difficulty, the difficulty could be removed by a specific order of the Magistrate to that effect. The petitioners, to avoid any prejudice to them, should be furnished, when asked for, a copy of the statements of the witnesses recorded by the police.

I do not think, by adopting the procedure for the trial of a complaint case, the petitioners would be prejudiced in any way. On the other hand, they will have the advantage of cross-examining the witnesses twice over, once before the framing of the charge and the other, after it.

In the result, the application is dismissed.