Decided on January 12,1983



G.T.NANAVATI, I.C.BHATT - (1.) The applicant who is the original complainant moved the police in the first instance and then the Court with respect to the incident which had taken place on 10-9-1979. On that day at about 9-00 p. m. Ran chhodbhai Manibhai opponent No. 1 (original accused No. 1) who is staying opposite to his house came near his house and started abusing him. He complained that the son of the complainant had thrown dust on his scooter. As the accused was uttering abuses the complainant asked him to keep quiet. He continued abusing. Therefore the complainant went inside his house and closed the doors. Accused No. 1 who is staying with his kept and doing transport business in the name of Deesa Transport Co. called some of his supporters who are known as German Gang. They all then came in his house at about 11-00 a.m. They were all armed with weapons like sticks chains pipes hockey sticks etc. They started damaging window panes and the doors of his house. He got frightened and to save himself ran away from the back door. It is his case that a crowd of about 30 persons committed trespass in his house and damaged his furniture and other articles of the value of about Rs. 4 0 Many persons of the society had collected near his house but non intervened as they were all afraid of accused No. 1 and his associates. After running away from his house he contacted Raopura Police Station and because of that message given by him a police van was sent to his house. The police then started recording his complaint. At that time accused No. 1 also came to the police station. Because of his influence the police officers instead of taking down his complaint in the way he wanted to give became angry with him did not allow him to speak further and wrote it down the way they liked. Thereafter his signature was taken on it. He was initially not willing to sign the same; and therefore the police took a counter complaint from accused No. 1 against him. As the police had not taken his complaint properly he tried to contact the D.S.P. and the Collector on telephone but they were not available. He therefore rang up I.G.P. at Ahmedabad He was advised to contact Dy. S. P. at Baroda. Before he could contact the Dy. S. P. Inspector Desai arrested him. Sometime thereafter his brother approached the police for getting him released. He was asked to produce a knife after purchasing it from the market. His brother thought that there was no other alternative of getting the complainant released and therefore he did whatever the police asked him to do. After he was released from the custody he wrote to the Government about what had happened. Again on 13-9-1979 he sent one letter to the Government and copies to various other authorities but nothing was done either by the Government or by the police officers except that on 10-10-1979 the police filed a charge sheet against accused Nos. 1 and 2 only for the offences punishable under secs. 451 427 323 504 506 and 114 of the Indian Penal Code. As no further action was taken by the police even after receiving the letter dated 10-10-1979 the complainant filed a complaint in the Court of the Judicial Magistrate First Class Vadodara on 26-11-1979 against 6 accused whom he had identified as his assailants. The case which was instituted upon the charge sheet was registered as Criminal Case No. 1539 of 1979. The case instituted upon the complaint was registered as Criminal Case No. 1844 of 1979.
(2.) In the police case charge was framed on 7-3-1980 and thereafter evidence of 2 witnesses was recorded. In the private case also summonses were issued on 7-3-1980 and a charge was framed against all the six accused. On 31-7-1980 the learned advocate for the accused gave an application Exh. 10 for consolidating both the cases and proceeding further with the case as one instituted upon a charge sheet. That application was opposed by the complainant. The learned Magistrate relying upon sec. 2E0 of the Code of Criminal Procedure 1973 (here after referred to as the Code) granted that application by his order dated 14-8-1980 and the case thereafter proceeded as one single case instituted upon the charge sheet. On 20-12-1980 a fresh charge was framed against all the six accused. Thus over and above the two original accused four more persons who were shown as accused in the private case were also joined as accused in the police case. The charge also contained the offences which were disclosed in the complaint but were not mentioned in the charge sheet. Thus the Court took cognizance of all the offences alleged by the complainant and all the 6 accused came to be tried for those offences but the case thereafter proceeded as if it was a case instituted upon a charge sheet. The evidence was recorded afresh and ultimately the learned Magistrate acquitted all the six accused of all the charges on the grounds that there were many inconsistencies in the complaint filed by the complainant before the police and the complaint filed by him in the Court that the evidence Was not only inconsistent but was full of material contradictions that there was enmity between the main prosecution witnesses) and the accused and that the prosecution had failed to examine independent witnesses. The complainant feeling aggrieved by the said order of acquittal has filed this revision application.
(3.) Three contentions were raised before us by the learned advocate for the petitioner. It was urged that sec. 210 of the Code is not at all applicable to the facts of this case; and therefore the learned Magistrate committed an illegality and acted without jurisdiction in clubing the two proceedings together under sec. 210. It was also urged that in absence of any provision to that effect in the Code the learned. Magistrate had no power to amalgamate or consolidate the two cases and proceed with them as one single case instituted upon a charge sheet. It was also urged in the alternative that even if it is held that the Court independently of sec. 210 has such a power it ought not to have exercised the same in this case in view of the allegations made by the complainant in his complaint. By amalgamating or consolidating the two cases and proceeding with the same as a police case serious pre judice has been caused to the complainant and it has resulted in failure of justice. ... ... ... ... ... ...;

Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.