1. With the consent of the parties, heard finally. This petition has been filed under Section 482 of Cr.P.C. calling in question the legality and propriety of order dated 23-5-2014 passed by 1st A.S.J., Bhind in Criminal Revision No. 183/2013 by which order dated 11-7-2013 passed by JMFC, Bhind in Complaint Case No. Unregistered/2012 was affirmed.
2. The necessary facts for the disposal of the present application in short are that the applicant had lodged a F.I.R. No. 47/2009 on 21-7-2009 alleging that at about 8-8:30 in the morning, due to old enmity, the respondents no. 1 to 9 surrounded the complainant and Shyam Singh. The respondents no. 1 to 9 were armed with deadly weapons. They started assaulting the complainant and Shyam Singh. The complainant and Shyam Singh tried to run away and when they reached near the fields of Purandar, then his father Amar Singh and his brother Kripa Shanker also came there to intervene. At that time, Narendra and Lakhan fired at them as a result of which his father succumbed to the injuries. The police started investigating the matter and after concluding the investigating came to the conclusion that in fact it was the applicant Roop Singh himself who had shot his father twice with an intention to falsely implicate the respondents no.1 to 9 and ultimately filed the charge sheet against the applicant Roop Singh and other persons.
3. The applicant and other co-accused persons filed a petition under Section 482 of Cr.P.C. before this Court which was registered as M.Cr.C. No. 3917/2010. The said petition under Section 482 of Cr.P.C. was dismissed by this Court by order dated 30-8-2013 and the contention raised by the applicant that, in fact he has been falsely implicated and his father was in fact murdered by the respondents no.1 to 9 was not accepted. While dismissing the said petition, it was observed by this Hon''ble Court as under :
"25. In the case in hand as noticed hereinabove after due investigation the charge sheet has been filed against the petitioners and inquiry was also held by the superior officer on the complaint of brother of the petitioners. There is no merits in the submission that investigating is not fair and impartial."
4. Thereafter, the applicant filed a criminal complaint under Section 200 of Cr.P.C. against the respondents no. 1 to 9 for offences punishable under Sections 147,148,149, 302,307,294,323 of I.P.C. The complainant in support of his complaint examined himself and his witnesses under Section 202 of Cr.P.C. During the pendency of the complaint, an application was filed by the applicant to requisition the report from the police with regard to the investigation done by it on the report of the applicant. The said application was allowed by the Magistrate and by order dated 7-5-2013 called for the record of the Trial which was pending for committal before another Court in criminal case no. 342/2010. After considering the complaint, the statements of the witnesses, as well as the Charge sheet which was filed by the police against the applicant and others, the Magistrate by order dated 11-7-2013 dismissed the complaint under Section 203 of Cr.P.C.
5. Being aggrieved by the order of the Magistrate, the applicant preferred a criminal revision which too has suffered dismissal by order dated 23-5-2014 passed by 1st Additional Sessions Judge to the Court of 1st Additional Sessions Judge, Bhind in Criminal Revision No. 183/2013.
6. Hence, this present application under Section 482 of Cr.P.C. has been filed.
7. It is submitted by the Counsel for the applicant that in fact the respondents no. 1 to 9 have killed his father and the applicant was the eye witness to the incident and a prompt F.I.R. was lodged by him, and the police under the influence of the respondents no.1 to 9 not only exonerated them, but has falsely implicated the applicant for the murder of his own father. It was further contended that free, fair and impartial investigating was not done by the police and charge sheet has been filed against him whereas the offence has been committed by the respondents no. 1 to 9. It is further submitted that the Magistrate committed mistake by relying upon the charge sheet filed by the police and in fact should have decided the question of taking cognizance only on the basis of statements of the witnesses which were recorded under Section 200 and 202 of Cr.P.C.
8. Per contra, the Counsel for the respondents submit that the Magistrate did not commit any mistake by considering the charge sheet filed against the applicant. It is further submitted that in the Trial, almost all the prosecution witnesses have been examined and all the witnesses have specifically stated that in fact it is the applicant who had killed his father Amar Singh who was an old and infirm person in order to falsely implicate the respondents no. 1 to 9.
9. Heard the learned Counsel for the parties. It appears from the facts of the case, that initially, the applicant lodged a F.I.R. against the respondents no. 1 to 9 alleging that Naresh and Lakhan had caused gun shot injury to his father Amar Singh as a result of which he expired. During the investigation, the police came to a conclusion that in fact it is the applicant who himself had killed his father with an intention to falsely implicate the respondents no.1 to 9 and consequently, a charge sheet was filed against the applicant and other co- accused persons and the Trial is pending. It is also clear from the record, that the applicant and others had challenged the charge sheet which was filed against them and the said application was dismissed by this Court with an observation that the investigation conducted by the police was fair and impartial. All the arguments to challenge the correctness of the charge sheet, advanced by the Counsel for the applicants were in fact were already raised in M.Cr.C. No. 3917/2010 which was dismissed on merits by a detailed order. Thus, the applicant cannot be allowed to challenge/attack the charge sheet on the ground that the investigation was not fair and impartial.
10. So far as the contention of the applicant that the Magistrate should not have considered the charge sheet for dismissing the complaint is concerned, suffice it to say that it was the applicant himself, who by filing an application had requested the Magistrate to requisition the record of the Trial from another Court and only on the application of the applicant, by order dated 7-5-2013, the Magistrate had requisitioned the record. Thus, it cannot be said by the applicant that the Magistrate should not have seen the documents which were either filed by him or were got requisitioned by him.
11. When an investigation was already pending against the applicant and others on the allegations that in fact the applicant and other co-accused persons had killed Amar Singh, then under this situation, the only course open for the Magistrate was to follow Section 210 of Cr.P.C. Section 210 of Cr.P.C. reads as under :
"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.(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."
Thus, till the investigation was pending, the Magistrate had no option but to stay the further proceedings and to call for a report from the police.
12. However, when a charge sheet is already filed, then the only course open for the Magistrate was to try both the cases together as if they are instituted upon police report. Now a very peculiar situation has arisen in the present case. F.I.R. was lodged by the applicant against the respondents no.1 to 9 and whereas the charge sheet has been filed against the applicant and other co-accused persons on the ground that in fact it is the applicant who has killed his father with an intention to falsely implicate the respondents no.1 to 9. If the cognizance of offence is taken on the complaint of the applicant against the respondents, then it would mean that the trial would commence on the allegation that the respondents no.1 to 9 have killed Amar Singh. As per the provisions of Section 210(2) of Cr.P.C., now both the cases will be required to be tried together as if they are instituted upon police report. Further more, after the complaint is registered, then it would become a police case. As the allegations are that of murder therefore, the cases would be tried as Sessions case.
13. As both the cases will be required to be tried together in view of provisions of Section 210(2) of Cr.P.C., then it would mean that the Public Prosecutor will be required to allege on one hand that in fact it is Roop Singh and other Co-accused persons who have killed Amar Singh and at the same, he will be required to submit that in fact Roop Singh is the witness and in fact it is the respondents no. 1 to 9 who have killed Amar Singh. These two self contradictory stands cannot be taken by the Public Prosecutor. In order to avoid such eventuality, Section 223 of Cr.P.C. provides that what persons may be charged jointly.
14. Section 226 of Cr.P.C. reads as under : "226. Opening case for prosecution.-- When the accused appears or is brought before the Court in pursuance of a commitment of the case under Section 209, the prosecutor shall open his case by describing the charge brought against the accused and stating by what evidence he proposes to prove the guilt of the accused." Section 223 of Cr.P.C. reads as under : "223. What persons may be charged jointly.-- The following persons may be charged and tried together, namely:--
(a) persons accused of the same offence committed in the course of the same transaction;(b) persons accused of an offence and persons accused of abetment of, or attempt to commit, such offence;(c) persons accused of more than one offence of the same kind, within the meaning of Section 219 committed by them jointly within the period of twelve months;(d) persons accused of different offences committed in the course of the same transaction;(e) persons accused of an offence which includes theft, extortion, cheating, or criminal misappropriation, and persons accused of receiving or retaining, or assisting in the disposal or concealment of, property possession of which is alleged to have been transferred by any such offence committed by the first-named persons, or of abetment of or attempting to commit any such last-named offence;(f) persons accused of offences under Sections 411 and 414 of the Indian Penal Code (45 of 1860) or either of those sections in respect of stolen property the possession of which has been transferred by one offence;(g) persons accused of any offence under Chapter XII of the Indian Penal Code (45 of 1860) relating to counterfeit coin and persons accused of any other offence under the said Chapter relating to the same coin, or of abetment of or attempting to commit any such offence; and the provisions contained in the former part of this Chapter shall, so far as may be, apply to all such charges:Provided that where a number of persons are charged with separate offences and such persons do not fall within any of the categories specified in this section, the Magistrate [or Court of Session] may, if such persons by an application in writing, so desire, and if he [or it] is satisfied that such persons would not be prejudicially affected thereby, and it is expedient so to do, try all such persons together."
Thus, in view of Section 223 of Cr.P.C. such a situation cannot be allowed and different persons with self contradictory allegations cannot be allowed to be tried together.
15. The counsel for the applicant has relied upon judgment passed by Supreme Court in the case of Harjinder Singh v. State of Punjab, 1985 SCC (Cri) 93 and submitted that in a case where the allegations are materially different, both the cases can be tried separately but by the same Court and clubbing of the same will not be necessary.
16. I have gone through the facts of the case of Harjinder Singh (supra). In the said case, report was made against 9-10 persons but police filed chargesheet only against three persons. The allegations in the complaint were different from that of allegations made in police case and the accused persons were also more. In the said case, the police had exonerated some persons by filing chargesheet only against few. However, it was not the case where the police had alleged that in fact the complainant party itself is the murderer In the present case, the situation is that the police claims that complainant is the murderer and the complainant says that the respondents No.1 to 9 are the murderers. Thus, two self contradictory cases with two opposite allegations cannot be tried even separately by the same Court. There cannot be two different trials for single murder where on one occasion, the Public Prosecutor would say that respondents No.1 to 9 are the assailants and at the same time, he would say that complainant is the murderer. Thus, as the facts of the case of Harjinder Singh (supra) are different, therefore, the ratio of law laid down by the Supreme Court does not apply to the facts of the present case.
17. Now the only question would be that whether the charge sheet which has been filed against the applicant and other co-accused persons was correct or the complaint which has been filed by the applicant narrates the correct facts. Here it would not be out of place to mention here that the applicant had already challenged the charge sheet filed against him and this Court has already held that the investigation done by the police is fair and impartial. Under these circumstances, no mistake was committed by the Magistrate by taking the charge sheet into consideration. Further more, in fact it was the applicant himself who had filed an application before the Magistrate for requisitioning the record of the criminal case from the different Court. Therefore, now the applicant cannot take a somersault in order to say that although the record of the criminal case, filed against him, was requisitioned on his application, but the Magistrate should not have taken note of the same. Further more, the Magistrate has also taken into consideration the distance from which the gun shot is alleged to have been fired at Amar Singh and held that according to the medical report , the gun shots were fired from a close range of 6 feets whereas according to the complainant and his witnesses, Naresh and Lakhan had fired from a distant place thus, this discrepancy between the Medical and ocular evidence, creates a doubt on the veracity of the statements of the complainant and his witnesses. Thus, considering the totality of the circumstances, the Magistrate did not take cognizance of the complaint and dismissed the same under Section 203 of Cr.P.C.
18. It is also submitted by the Counsel for the respondents no.1 to 9 that during the Trial almost all the witnesses have been examined and they have supported the prosecution case and have specifically stated that in fact it was the applicant who brought his father on his shoulder and fired at him.
19. Thus, this Court is of the considered view that the applicant could not prima facie establish that it is the respondents no. 1 to 9 who have killed his father Amar Singh and the Magistrate rightly did not commit any mistake in dismissing the complaint under Section 203 of Cr.P.C. The Revisional Court also did not commit any mistake by dismissing the revision.
20. Consequently this petition fails and is hereby dismissed.
