PAL @ PALLAversusSTATE OF UTTAR PRADESH

                      [2010] 11 S.C.R. 716


A                        PAL @ PALLA
                                V.
                  STATE OF UTTAR PRADESH
               (Criminal Appeal No. 1830 of 2010)
                     SEPTEMBER 22, 2010
B
          [ALTAMAS KABIR AND A.K. PATNAIK, JJ.]

       Code of Criminal Procedure, 1973 - ss. 210, 200, 202
  and 482 - Clubbing of cases uls. 210 - Two cases arising
C out of the same incident - One on basis of charge-sheet filed
  by police - Other on basis of complaint - Accused in two
  cases not common - Accused in one case witnesses in the
  other and vice versa - Holding of common trial - Held:
  Provision contemplated in Section 210 not attracted - Version
o in the complaint case and police report totally different,
  though, the incident was same - Accused also different in two
  separate proceedings - Prejudice is likely to be caused in a
  single trial where person was both accused and witness in
  view of two separate proceedings out of which trial arose -
E Thus, two trials should be held simultaneously but not as a
  single trial - Penal Cod~, 1860 - ss. 14 7, 323, 302.

      The appellant lodged a First Information Report
  against 'Y', 'P', '0', 'K' and 'KN' for committing murder of
  his father. The appellant and 'GS' filed a writ petition
F praying for the investigation to be entrusted to an
  independent agency. During pendency, the Investigating
  Officer submitted a charge-sheet against two persons
  not named by the appellant in the FIR. Thereafter, the
  Investigating Officer filed another charge-sheet naming
G 'GS' as an accused. The High Court held that the
  investigation was not proper, but the relief sought for by
  the appellant had become infructuous. Thereafter, the
  appellant filed a protest petition which was treated as a

H                              716
   PAL @ PALLA v. STATE OF UTTAR PRADESH              717

complaint and statements were recorded by the                A
magistrate u/ss. 200 and 202 of the Code of Criminal
Procedure, 1973. The magistrate issued summons to all
the accused named in the complaint and in the FIR
lodged by the appellant. The High Court upheld the order
but directed that both the cases, one on the basis of the    B
charge-sheet filed by the police and the other on the
basis of the complaint filed by the appellant, would run
simultaneously. Meanwhile, both the cases were
committed to the Court of Session for trial. The accused
persons filed an application before the Sessions Judge       c
praying that the two cases be tried separately. The
Sessions Judge framed charges against the accused
named in "both the cases and the proceedings were
conducted. The persons against whom the police
submitted a charge-sheet were the witnesses named by         D
the appellant in FIR. The prosecution examined the
winesses. The appellant filed an application for closing
the evidence of the prosecution but the same was
rejected. The appellant then filed an application under
Section 482 Cr.P.C. praying for a direction that the trial
                                                             E
of the two cases be held separately. The Single Judge of
the High Court disposed of the application. Therefore, the
appellant filed the instant appeal.

    Disposing of the appeal, the Court
                                                             F
     HELD: 1.1 Section 210 of the Code of Criminal
Procedure, 1973 provides the procedure to be followed
when there is a complaint case and police investigation
in respect of the same offence. Although, under Section
210 Cr.P.C. the magistrate may try the two cases arising     G
out of a police report and a private complaint together,
the same, 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
                                                             H
   718      SUPREME COURT REPORTS              (2010] 11 S.C.R.


A 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 bn a police report. (Paras 22 and 23]
  (726-G-H; 727 -D-F]
8
       2.1 In the instant case, 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
c accused and a witness in view of the two separate
  proceedings out of which the trial arises. The version in
  the complaint case and the police report are totally
  different, though, arising out of the same incident. Thus,
  the two trials should be held simultaneously but not as a
D single trial. [Para 23] (727-F-H; 728-A]

       2.2 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. Clubbing and
E 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 the two
  cases being recorded separately, so that both the cases
F could be disposed of simultaneously. (Para 24] [728-8-C]

      2.3 Although, the High Court relied on the provisions
  of Section 210 of the Code in directing that the two cases
  be clubbed together, the fact situation do not really attract
G the provisions contemplated in the Section 210. On the
  other hand, 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
H by the provisions of Article 20(2) of the Constitution or
   PAL @ PALLA v. STATE OF UTTAR PRADESH                  719


Section 300 Cr.P.C. [Para 25] [728-D-F]                          A·

    2.4 The order of the High Court impugned in the
appeal cannot be sustained and is set aside. The trial
court should proceed to hear the two cases·
simultaneously, but separately, and dispose of the same 8
simultaneously as well, as expeditiously as possible.
[Paras 26 and 27] [728-F-GJ

     Harjinder Singh vs. State of Punjab and Ors. (1985) 1
SCC 422; Kewal Krishan s/o Lechman Das vs. Suraj Bhan
and Anr. (1980) (Supp.) SCC 499; Khetrabasi Samual Etc.· C
vs. State of Orissa (1969) 2 SCC 571; Dilawar Singh vs. State
of Delhi (2007) 12 SCC 641 - referred to.               .

                     Case Law Reference:
                                                                 D
 (1985) 1 sec 422             Referred to.      Para 16
 (1980) (Supp.) SCC 499       Referred to.      Para 17
 (1969) 2 SCC 571             Referred to.      Para 19
 (2007) 12 sec 641            Referred to.      Para 20          E

    CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 1830 of 2010.

    From the Judgment & Order dated 14.12.2007 of the High
Court of Judicature at Allahabad in Criminal Misc. Application   F
No. 29076 of 2007.

    Dr. Madan Sharma, J.P. Tripathi, Asha Upadhyay, R.D.
Upadhyay for the Appellant.
                                                                 G
   Shail Kr. Owivedi, MG, Sanjay Visen, Vandana Mishra,
Kamlendra Mishra for the Respondent.

    The Judgment of the Court was delivered by

    ALTAMAS KABIR, J. 1. Leave granted.                          H
    720     SUPREME COURT REPORTS                [2010] 11 S.C.R.

A     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
B 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
C residents of Village Bhojpur under Nanauta Police Station,
  under Sections 147, 323 and 302 l.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
D was geared to favourin'§ 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 investigation to be entrusted to an Independent
  agency.
E
        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
F 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.

G       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
H different agency had become infructuous. The writ petition was,
   PAL @ PALLA v. STATE OF UTTAR PRADESH                      721
             [ALTAMAS KABIR, J.]
accordingly, disposed of by observing that the Appellant could       A
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              B
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.                                             c
     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.         D
The High Court upheld the order passed by 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.                                 E

       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      F
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,          G
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 in his First Information
Report. The accused in both the cases denied the charges and
                                                                     H
claimed to be tried. The charges against both sets of accused
    722      SUPREME COURT REPORTS                [201 O] 11 S.C.R.


A 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
8
  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
C 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 directed the cases to be tried simultaneously
D 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
E 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
F 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
G High Court on 14th December, 2007, and was disposed of by
  the learned Judge upon holding that the procedure adopted by
  the Magistrate did not suffer from any infirmity or error in
  clubbing both the cases in which witnesses have been
  mentioned.

H         10. Being aggrieved by the order of the High Court in
   PAL @ PALLA v. STATE OF UTTAR PRADESH                        723
             [ALTAMAS KABIR, J.]
upholding the order of the Magistrate clubbing the two cases            A
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
                                                                        B
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            C
accused in one of the cases are the witnesses in the other and
vice versa.

      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        D
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            E
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
                                                                        F
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 same was
questioned before the High Court, it held that the Magistrate
appeared to have adopted the correct procedure for clubbing             G
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.                                                           H
    724     SUPREME COURT REPORTS                 [2010] 11 S.C.R.


A       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
B 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 both the cases have been instituted on a police
c 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
0
  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
E 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
F examination of witnesses in a common 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.
G 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.
H State of Punjab & Ors. [(1985) 1 SCC 422], where in an almost
   PAL @ PALLA v. STATE OF UTTAR PRADESH                      725
             [ALTAMAS KABIR, J.]
identical situation, this Court, while interpreting Section 223      A
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
ifthe 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        B
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.                                                          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          D
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       E
and on a complaint, separately, but by the same court. Learned
counsel submitted that the High ~ourt was, therefore, wrong in
clubbing the two cases together in a single trial and the
impugned order was, therefore, liable to__be...set-aside.~.
                                                                     F
      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            G
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       H
    726      SUPREME COURT REPORTS                  [201 OJ 11 S.C.R.


A 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 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
B 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.
c      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
D 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 these were
  committed in the course of the same transaction.

E        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
F   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.
G
       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
H police report, namely, a complaint case, the Magistrate is
   PAL @ PALLA v. STATE OF UTTAR PRADESH                       727
             [ALTAMAS KABIR, J.]
informed during the course of inquiry or trial that an investigation   A
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       B
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          c
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 the provisions of the Code.
                                                                       D
      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           E
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 ..,omplaint 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          F
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           G
the trial arises. In our view, this is a case where 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          H
    728       SUPREME COURT REPORTS                 [2010] 11 S.C.R.

A   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
8
  should be conducted by the same Presiping 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 challc.n and the other on a complaint, if the
C 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 the two cases
  being recorded separately, so that both the cases could be
  disposed of simultaneously.

D      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
E 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.
F       26. The order of.the High Court impugned in the appeal
    cannot, therefore, be sustained and is, accordingly, set aside.

       27. The trial court shall proceed to hear the two cases
  simultaneously, but separately, in the light of the observations
G made hereinbefore and dispose of the same simultaneously as
  well, as expeditiously as possible.

           28. The Appeal is disposed of accordingly.

    N.J.                                        Appeal disposed of.
H