REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1830   OF 2010 (@ SPECIAL LEAVE PETITION (CRL.) No.192 of 2008)

PAL @ PALLA               … APPELLANT        Vs. STATE OF UTTAR PRADESH … RESPONDENT

J U D G M E N T

ALTAMAS KABIR, J.

1. Leave granted.

2. This appeal is directed against the judgment  

and order passed by the Allahabad High Court on  

14th December, 2007, disposing of the Appellant’s  

application  under  Section  482  Cr.P.C.

(Crl.M.A.No.29076  of  2007)  with  certain  

directions which were in keeping with the orders  

of the learned Magistrate impugned in the said  

petition.   

3. On  1st July,  1996,  the  Appellant  herein  

lodged  a  First  Information  Report  at  Nanauta  

Police  Station  in  the  District  of  Saharanpur,  

U.P., in regard to offences alleged to have been  

committed by Yashpal, Pramod, Dharma, Kalu and  

Kanwar, all residents of Village Bhojpur under  

Nanauta Police Station, under Sections 147, 323  

and  302  I.P.C.   The  said  five  accused  were  

alleged to have committed the murder of Bhartu,  

the father of the Appellant.  According to the  

Appellant,  the  Investigating  Officer  began  to  

conduct the investigation in a manner which was  

geared to favouring the accused. The Appellant,  

accordingly, filed a Writ Petition (Crl.) No.1166  

of  1997,  together  with  Gyan  Singh,  before  the  

Allahabad  High  Court  and  prayed  for  the  

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investigation to be entrusted to an independent  

agency.

4. While the aforesaid writ petition was pending  

before the High Court, the Investigating Officer  

submitted a charge-sheet against one Phool Singh  

and Vishwas on 23rd April, 1997, despite the fact  

that they had not been named by the Appellant in  

the  First  Information  Report  lodged  by  him.  

Subsequently, another charge-sheet was filed by  

the Investigating Officer on 1st August, 1997, in  

which Gyan Singh, who was one of the petitioners  

in Writ Petition (Criminal) No.1166 of 1997, was  

named as an accused.   

5. The writ petition came up for hearing before  

the High Court on 8th September, 1997, and was  

disposed of by the High Court which came to the  

conclusion that the investigation was improper,  

but, since charge-sheet had already been filed,  

the  relief  sought  for  by  the  Appellant  for  

investigation by a different agency had become  

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infructuous.  The writ petition was, accordingly,  

disposed of by observing that the Appellant could  

seek other remedial measures available to him,  

including  filing  of  a  protest  petition.  

Thereafter, on 3rd February, 1998, the Appellant  

filed  a  protest  petition  before  the  Judicial  

Magistrate, Deoband, District Saharanpur, and the  

same was treated as a complaint and statements  

were  recorded  by  the  learned  Magistrate  under  

Sections 200 and 202 Cr.P.C.  On 5th September,  

1998, the learned Magistrate issued summons to  

all  the  five  accused  who  were  named  in  the  

complaint and whose names also appeared in the  

First Information Report lodged by the Appellant.  

6. It is against the said order of the learned  

Magistrate  issuing  summons  that  an  application  

was filed by the five accused under Section 482  

Cr.P.C. in Criminal Misc. Application No.857 of  

1999,  challenging  the  said  order  which  was,  

however, dismissed by the High Court on 15th May,  

2002.  The High Court upheld the order passed by  

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the learned Magistrate on 5th September, 1998, but  

directed that both the cases, one on the basis of  

the  charge-sheet  filed  by  the  police  and  the  

other on the basis of the complaint filed by the  

Appellant, would run simultaneously.   

7. After their application had been disposed of  

by the High Court on 16th May, 2002, the accused  

persons made an application before the learned  

Sessions Judge on 11th April, 2004, praying that  

the two cases be tried separately, since, in the  

meantime, both the cases had been committed to  

the Court of Sessions for trial.  After their  

cases were committed to the Court of Sessions,  

only  one  sessions  trial,  being  S.T.No.772  of  

2003, was commenced.  The learned Sessions Judge  

framed charges against the accused named in both  

the cases, i.e., the charge-sheet submitted by  

the  police  and  the  complaint  filed  by  the  

Appellant.   As  a  result,  all  those  persons,  

against whom the police had submitted a charge-

sheet, were the witnesses named by the Appellant  

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in his First Information Report.  The accused in  

both the cases denied the charges and claimed to  

be  tried.   The  charges  against  both  sets  of  

accused were framed in the same Sessions Trial  

No.772  of  2003  and  the  entire  proceeding  was  

being conducted both in respect of the complaint  

filed  by  the  Appellant  and  that  filed  by  the  

investigating authorities.

8. Difficulties  arose  when  the  prosecution  

started examining its witnesses according to the  

charge-sheet filed by the police and the Sessions  

Judge proceeded in the trial of cases adopting  

the  procedure  provided  under  Section  210(2)  

Cr.P.C.,  although,  it  was  pointed  out  to  the  

learned  Sessions  Judge  that  since  none  of  the  

accused  in  both  the  cases  was  common,  the  

procedure prescribed under Section 210(2) Cr.P.C.  

could not be legally adopted and the procedure  

prescribed  under  Section  210(3)  would  be  

applicable to the facts of the case.  It was also  

pointed out that earlier also the High Court had  

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directed the cases to be tried simultaneously and  

the accused in the complaint case had themselves  

made  an  application  on  11th April,  2004,  for  

separate trials of the two cases.   

9. On  31st October,  2007,  the  prosecution  

examined its witnesses mentioned in the charge-

sheet  and  an  application  was  made  by  the  

Appellant  for  closing  the  evidence  of  the  

prosecution, which was rejected by the learned  

Sessions  Judge  upon  observing  that  it  was  the  

prerogative of the prosecution to examine or not  

to examine any witness and the complainant had no  

say in the said matter. It is at this stage on  

12th December, 2007, that the Appellant moved the  

Allahabad High Court under Section 482 Cr.P.C.  

praying for a direction that the trial of the two  

cases be held separately.  The said application  

came  up  for  hearing  before  the  learned  Single  

Judge of the High Court on 14th December, 2007,  

and was disposed of by the learned Judge upon  

holding  that  the  procedure  adopted  by  the  

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Magistrate did not suffer from any infirmity or  

error  in  clubbing  both  the  cases  in  which  

witnesses have been mentioned.   

10. Being  aggrieved  by  the  order  of  the  High  

Court in upholding the order of the Magistrate  

clubbing the two cases together, the Appellant  

filed the special leave petition, out of which  

the present appeal arises.    

11. The  question,  therefore,  which  arises  for  

consideration in this appeal is whether a common  

trial can be held in respect of two cases, one on  

the basis of the charge-sheet filed by the police  

and the other on the basis of a protest petition  

which has been treated as a complaint having been  

committed  to  the  Court  of  Sessions,  although,  

none of the accused in the said two cases are  

common.  In fact, as indicated hereinabove, the  

accused in one of the cases are the witnesses in  

the other and vice versa.   

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12. At this stage, it may be indicated that at an  

earlier point of time, the learned Magistrate had  

taken cognizance on the protest petition filed by  

the  Appellant,  treating  the  same  to  be  a  

complaint, and summons were issued against the  

persons  arraigned  as  accused  therein.   The  

accused  persons  challenged  the  order  of  the  

learned  Magistrate  before  the  High  Court  in  

Criminal Misc. Application No.857 of 1999, which  

was  dismissed  on  16th May,  2002,  but  with  the  

direction that the case arising out of the police  

report  and  the  other  case  arising  out  of  the  

complaint should be tried simultaneously by the  

Court of Sessions in order to find out as to  

whose  version  was  true  and  who  were  the  real  

culprits.   

13. On  the  basis  of  the  said  directions,  the  

learned  Magistrate  clubbed  the  two  proceedings  

together,  in  keeping  with  the  provisions  of  

Section  210  of  the  Code,  as  there  could  be  

possibility of inconsistent findings.  When the  

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same  was  questioned  before  the  High  Court,  it  

held that the Magistrate appeared to have adopted  

the correct procedure for clubbing both the cases  

and that the complainant would be at liberty to  

examine the witnesses shown in the complaint case  

in order to serve the cause of justice.   The  

trial court was also directed to give permission  

to the complainant to examine the witnesses cited  

by him.   

14. Mr.  R.D.  Upadhyay,  learned  counsel,  who  

appeared for the appellant, urged that Section  

210  Cr.P.C.  provides  for  the  procedure  to  be  

followed when there is a complaint case and a  

police  investigation  in  respect  of  the  same  

offence.  He submitted that Sub-Section (2) of  

Section 210 makes it clear that if the Magistrate  

takes cognizance of an offence on a report filed  

by the Investigating Officer under Section 173  

Cr.P.C.  against  any  person,  who  is  also  an  

accused in a complaint case, the Magistrate shall  

inquire into or try the two cases together, as if  

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both the cases have been instituted on a police  

report.  Mr. Upadhyay submitted that Sub-Section  

(3) of Section 210 was not attracted to the facts  

of  this  case  since  it  deals  with  a  procedure  

where, if the police report did not relate to any  

accused in the complaint case or the Magistrate  

did not take cognizance of any offence on the  

police report, he would proceed with the inquiry  

or trial, which might have been stayed by him  

under  Sub-Section  (1)  in  accordance  with  the  

provisions of the Code.  

15. According to Mr. Upadhyay, the clubbing of  

the  two  cases  together  was  not  in  accordance  

either with the provisions of Sub-Section (2) of  

Section 210 Cr.P.C. or the directions given by  

the High Court in the earlier proceedings between  

the  parties.   Mr.  Upadhyay  urged  that  having  

regard to the peculiar facts of the case, where  

the accused in one case is the witness in the  

other, difficulties were bound to arise at the  

time  of  examination  of  witnesses  in  a  common  

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trial.  On the other hand, if the two cases were  

tried separately, as directed by the High Court  

and the witnesses were examined separately, it  

would be possible to arrive at the truth after  

comparing the two sets of evidences that would be  

led in the two separate cases.  Learned counsel  

submitted that the order passed by the High Court  

was contrary to the provisions of Section 210(2)  

Cr.P.C. and was liable to be set aside.    

16. In support of his submissions, Mr. Upadhyay  

firstly referred to the decision of this Court in  

Harjinder  Singh vs.  State  of  Punjab  &  Ors.  

[(1985) 1 SCC 422], where in an almost identical  

situation, this Court, while interpreting Section  

223 Cr.P.C., held that clubbing of the two cases,  

one  on  a  police  challan  and  the  other  on  a  

complaint,  was  not  permissible  and  if  the  

prosecution  versions  in  the  two  cases  were  

materially different, contradictory and mutually  

exclusive, as in the instant case, such cases may  

be  ordered  to  be  tried  together,  but  not  

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consolidated.  In other words, the evidence is to  

be recorded separately in both the cases and they  

should be disposed of simultaneously so that the  

procedure  does  not  infringe  the  provisions  of  

Article  20(2)  of  the  Constitution  read  with  

Section 300 Cr.P.C.  

17. In this regard reference was also made to an  

earlier decision of this Court in  Kewal Krishan  

s/o  Lachman  Das vs.  Suraj  Bhan  &  Anr. [(1980  

(Supp.)  SCC  499],  on  which  reliance  had  been  

placed in  Harjinder Singh’s case (supra), where  

the same views had been expressed and it had been  

observed  that  the  two  cases  should  be  tried  

separately but by the same court to avoid risk of  

two courts coming to conflicting findings.  Mr.  

Upadhyay submitted that Section 223 Cr.P.C. did  

not  contemplate  clubbing  of  cases,  though,  it  

provides for trial of two cases arising out the  

same transaction, on a police report and on a  

complaint,  separately,  but  by  the  same  court.  

Learned  counsel  submitted  that  the  High  Court  

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was, therefore, wrong in clubbing the two cases  

together in a single trial and the impugned order  

was, therefore, liable to be set aside.

18. On behalf of the State of Uttar Pradesh, Mr.  

Shail Kumar Dwivedi, learned Additional Advocate  

General, tried to persuade us to take the view  

which  has  been  taken  by  the  High  Court  in  

clubbing the two cases together.  He reiterated  

the reasoning of the High Court that in view of  

the fact that the High Court had earlier chosen  

not to quash the order dated 5th September, 1998,  

taking cognizance of the offence on the protest  

petition filed on behalf of the Appellant herein,  

the case arising out of the cognizance taken on  

the  police  report  was  required  to  be  tried  

simultaneously with the other case by the Court  

of Sessions in order to find out as to whose  

version was true and who were the real culprits.  

Mr. Dwivedi submitted that by clubbing the two  

cases  together,  the  Sessions  Court  had  

substantially complied with the directions of the  

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High Court by trying the two cases together and  

that  having  regard  to  the  fact  situation,  the  

Sessions Judge had no option but to club the two  

cases together for trial.  In fact, Mr. Dwivedi  

contended that unless the two cases were clubbed  

together,  there  could  be  a  possibility  of  

inconsistent findings and that the High Court had  

rightly held that the expression “simultaneously”  

would mean that both the cases should be taken  

together.   

19. In support of his submissions, Mr. Dwivedi  

firstly referred to the decision of this Court in  

Khetrabasi  Samual  Etc. vs.  State  of  Orissa  

[(1969)  2  SCC  571],  wherein,  on  the  basis  of  

Section 252 of the Code of Criminal Procedure,  

1898, this Court upheld the direction given by  

the Magistrate to club the two cases together on  

the ground that Section 239 of the Code allowed  

the trial of a number of persons whether accused  

of the same offence or of different offences, if  

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these were committed in the course of the same  

transaction.   

20. Reliance was also placed on another decision  

of this Court in Dilawar Singh vs. State of Delhi  

[(2007) 12 SCC 641], which, however, dealt with  

the  procedure  to  be  adopted  under  Section  210  

Cr.P.C., 1973, as a whole.  Mr. Dwivedi urged  

that the order passed by the High Court upholding  

the order of the learned Magistrate, did not call  

for any interference in the facts of this case.

21. Having  heard  learned  counsel  for  the  

respective parties, we are unable to accept the  

submissions advanced by Mr. Dwivedi on behalf of  

the State of Uttar Pradesh.   

22. Section 210 Cr.P.C. provides the procedure to  

be followed when there is a complaint case and  

police  investigation  in  respect  of  the  same  

offence.  Sub-Section (1) of Section 210 provides  

that when in a case instituted otherwise than on  

a police report, namely, a complaint case, the  

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Magistrate  is  informed  during  the  course  of  

inquiry  or  trial  that  an  investigation  by  the  

police is in progress in relation to the offence  

which is the subject matter of inquiry or trial  

held by him, the Magistrate is required to stay  

the proceedings of such inquiry or trial and to  

call for a report on the matter from the Police  

Officer conducting the investigation. Sub-Section  

(2) provides that if a report is made by the  

Investigating 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 a complaint case, the Magistrate shall  

inquire into or try the two cases together, as if  

both the cases had been instituted on a police  

report.   Sub-Section  (3)  provides  that  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  a  police  

report,  he  shall  proceed  with  the  inquiry  or  

trial which was stayed by him, in accordance with  

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the provisions of the Code.   

23. Although, it will appear from the above that  

under Section 210 Cr.P.C. the Magistrate may try  

the two cases arising out of a police report and  

a private complaint together, the same, in our  

view, contemplates a situation where having taken  

cognizance of an offence in respect of an accused  

in  a  complaint  case,  in  a  separate  police  

investigation  such  a  person  is  again  made  an  

accused, then the Magistrate may 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.  That,  

however, is not the fact situation in the instant  

case, since the accused are different in the two  

separate proceedings and the situation has, in  

fact, arisen where prejudice in all possibility  

is likely to be caused in a single trial where a  

person is both an accused and a witness in view  

of the two separate proceedings out of which the  

trial arises.  In our view, this is a case where  

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the decision in  Harjinder Singh’s case (supra)  

would be more apposite.  In the said case, the  

question of Article 20(2) of the Constitution, as  

well as Section 300 Cr.P.C., relating to double  

jeopardy was considered.  A similar situation has  

arisen  in  this  case  where  the  version  in  the  

complaint case and the police report are totally  

different,  though,  arising  out  of  the  same  

incident.  In our view, this is a case where the  

two trials should be held simultaneously but not  

as a single trial.   

24. The facts of the case also warrant that the  

two  trials  should  be  conducted  by  the  same  

Presiding Officer in order to avoid conflict of  

decisions.  As was observed in Harjinder Singh’s  

case (supra) clubbing and consolidating the two  

cases, one on a police challan and the other on a  

complaint, if the prosecution versions in the two  

cases are materially different, contradictory and  

mutually  exclusive,  should  not  be  consolidated  

but should be tried together with the evidence in  

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the two cases being recorded separately, so that  

both  the  cases  could  be  disposed  of  

simultaneously.   

25. Although, the High Court has relied on the  

provisions  of  Section  210  of  the  Code  in  

directing that the two cases be clubbed together,  

in our view, the fact situation does not really  

attract the provisions contemplated in the said  

section.  On  the  other  hand,  as  indicated  

hereinabove,  the  trial  court,  in  the  unusual  

facts of the case, is required to hear the two  

cases  together,  though  separately,  and  take  

evidence  separately,  except  in  respect  of  all  

witnesses who would not be affected either by the  

provisions of Article 20(2) of the Constitution  

or Section 300 Cr.P.C.   

26. The order of the High Court impugned in the  

appeal cannot, therefore, be sustained and is,  

accordingly, set aside.

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27. The trial court shall proceed to hear the two  

cases  simultaneously,  but  separately,  in  the  

light of the observations made hereinbefore and  

dispose of the same simultaneously as well, as  

expeditiously as possible.   

28. The Appeal is disposed of accordingly.  

…………………………………………J.                               (ALTAMAS KABIR)

…………………………………………J.                              (A.K. PATNAIK)

New Delhi Dated: 22.09.2010

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