Pal @ Palla Vs. State
of Uttar Pradesh  INSC 766 (22 September 2010)
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
ALTAMAS KABIR, J.
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.
2007) with certain directions which were in keeping with the orders of the
learned Magistrate impugned in the said petition.
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 3 investigation to be entrusted to
an independent agency.
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.
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.
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 4 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.
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 5 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.
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 6 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
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 7 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
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 8 Magistrate did not suffer from any infirmity or error in clubbing both
the cases in which witnesses have been mentioned.
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.
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.
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.
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 10 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.
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
11 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.
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 12
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.
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 13 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.
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.
submitted that the High Court 14 was, therefore, wrong in clubbing the two
cases together in a single trial and the impugned order was, therefore, liable
to be set aside.
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
Mr. Dwivedi submitted
that by clubbing the two cases together, the Sessions Court had substantially
complied with the directions of the 15 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.
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 16 these were committed in the course of the same transaction.
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.
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.
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 17 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 18 the provisions of the Code.
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 19 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.
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 20 the two cases being recorded separately, so that both the cases could be
disposed of simultaneously.
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.
order of the High Court impugned in the appeal cannot, therefore, be sustained
and is, accordingly, set aside.
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.
Appeal is disposed of accordingly.