DIBYENDU BHUSAN DUTTA, J. - (1.) THE instant revisional application under section 401 read with 482 Cr.P.C. is directed against the order dated 15.6.91 passed by the Ld. Additional Sessions Judge, Third Court, Nadia in Crl. Motion No.88 of 1989.
(2.) THE facts and circumstances leading to the impugned order may, in substance, be stated as follows. The opposite Party No.1 Rahim Sekh, lodged an FIR with the Kalinganj Police Station on 2.9.83 making allegations against five persons over an incident that took place on 2.9.83 on the basis of the said information, Kaligarij Police Station Case No.2 dated 2.9.83 under sections 147/148/149/326/307/34/379 of IPC was registered. While the investigation of that case was in progress, the opposite party No.1 filed a petition of complaint on 20.9.83 before the l.d. Chief Judicial Magistrate, Krishnanagar against 11 persons including the five persons against whom the FIR had already been lodged. The petition of complaint also related to the same incident for which the Kalingung P.S. Case No.2 dated 2.9.83 was registered. The offences complained of in the petition of complaint were punishable under sections 147/148/149/326/307/34/379 of IPC. On the basis of the petition of complaint, complaint case No.502 -C/83 was registered in the Court of the Chief Judicial Magistrate, Nadia. The factum of initiation of the police case was not brought to the notice of the Chief Judicial Magistrate. The police case was investigated and after completion of investigation of the police case, charge -sheet was submitted under sections 324/325/326 on 18.11.83 before the Ld. Sub -Divisional Judicial Magistrate against four, out of the five persons complained against and they are petitioners Nos.3, 4, 8 and 11. The police case was registered as G.R. 1949 of 1983 and was transferred to the Second Court of Judicial Magistrate of Krishnanagar on 18.5.84. The Ld. CJM took cognizance on 21.1.85 on the basis of the complaint against only two accused persons under sections 326/114 of the IPC and discharged the remaining nine. The present petitioners are those 11 accused persons against whom the petition of complaint was filed by the opposite party No.1. Aggrieved by the order of discharge, the opposite party No.1.preferred a motion being Crl. Motion No.14 of 1985 before the Ld. Sessions Judge and the Id.Sessions Judge allowed that motion with a direction upon the CJM for reconsideration on the basis of materials on record. The Ld. CJM reconsidered the materials and was pleased to issue process on 21.1.86 against all the 11 petitioners under sections 147/149/326 IPC. The said complaint case was numbered as T58 of 1986 being ready for trial. On behalf of the accused petitioners, a prayer was made before the Ld. CJM for withdrawal of the police case from the court of the Judicial Magistrate, Second Court and for tagging the said case with the complaint case for a single or joint trial. The Ld. CJM was pleased to allow this prayer by an order dated 16.8.86. Aggrieved by this order, the complainant opposite party again preferred a motion being Criminal Motion No.99 of 1986 before the Ld. Sessions Judge and the Ld. Sessions Judge rejected it by his order dated 14.1.97 with the observations that two cases were required to be tried together by the same Judge in accordance with the provisions of section 223 Cr.P.C. The Ld. CJM framed charges in the complaint case on 27.5.87. The Ld. CJM, thereafter, proceeded to take evidence in the complaint case and fixed 10.1.89 for the purpose. On 10.1.89, one witness was examined by the prosecution which was being conducted by APP appearing for the State. Further examination of witnesses was deferred to 9.6.89. On 9.6.89, three more witnesses were examined by the prosecution. On that very date, the de facto complainant filed an application praying for leave of the Court for allowing an advocate engaged by him to make some points for the prosecution. The Ld. CJM refused to allow that prayer with the observation that the de facto complainant had no locus standi to submit anything for the prosecution. The de facto complainant filed an application praying for stay of the trial in order to enable him to move the Hon'ble High Court against the said order of rejection. The Ld. Magistrate refused to grant stay at that stage. Another application was filed on behalf of the de facto complainant praying for stay of the trial in order of enable him to file an application under section 408 of Cr.P.C. for transfer of the case on the ground that he would not get fair trial from the said Court. That application also met with the same fate and ultimately on 2.8.89, the opposite party No. 1 preferred a motion being Crl. Motion No.88 of 1989 before the Ld. Sessions Judge challenging the order passed by the Ld. CJM in trial No. 58 of 1986. The Ld. Sessions Judge stayed all further proceedings of the trial pending the trial of the revisional application and transferred the said application to the Ld. Additional Sessions Judge, Third Court for disposal. By the impugned order, the Ld. Additional Sessions Judge was pleased to allow the motion setting aside the order dated 9.6.89 of the CJM whereby the Ld. Magistrate was pleased to refuse to grant leave to the de facto complainant to submit the prosecution case through his advocate. The Ld. Additional Sessions Judge directed the CJM to try both the complaint case and the police case together in the manner indicated below. The two cases should be tried together, but not consolidated. Evidence should be recorded separately in both the cases one after the other except to the extent that the witnesses to the prosecution were common to both the cases have to be examined in one case and their evidence should be read as evidence in the other. After recording the evidence of the prosecution witnesses in one case, he was to proceed to record the evidence in the other case. Thereafter, the Ld. Judge is to proceed to simultaneously dispose of the two cases by two separate judgments taking care that the judgment of one case was not based on the evidence recorded in the other case.
(3.) BEING aggrieved by and dissatisfied with this order of the ld. Additional Sessions Judge, the accused petitioners of both the complaint case and the police case have come up with the present revisional application. In assailing the legality of the impugned order, Mr. Dipak Kr. Sengupta, the Ld. counsel appearing for the petitioners, made the following points. It is submitted that both the police case and the complaint case were instituted at the instance of the opposite party No.1. It was the opposite party No.1 who lodged the information that gave rise to the police case and it was again the opposite party No.1 on whose complaint, the complaint case was registered. In both the cases, the accusation made by him related to an incident that took place in the morning of 2.9.83. It may be that there are some omissions in one case or additions in the other case but the broad facts constituting the alleged offence in both the cases are more or less the same. The prosecution version, in the police case and the complaint case are not materially different, contradictory or mutually exclusive. Then again, there is constitutional bar under Article 20(2) for prosecution and punishment of a person more than once for the same offence. Moreover, under section 223 of the Cr.P.C. persons committing offence in the course of the same transaction can be charged and tried together and since the prosecution versions in the police case and the complaint case are not at variance with one another, it is permissible for the Court under section 223 Cr.P.C. to consolidate the" police case and the complaint case. In support of the contention for consolidation and clubbing of the two cases in question, Mr. Sengupta placed his reliance on a decision of the Supreme Court in the case of Harjinder Singh v. State of Punjab and Ors. reported in 1986 Cr.L.J. 831 : [1985(1) All India Criminal Law Reporter 454 (SC)]. It is submitted that the Ld. CJM was perfectly justified in allowing the prayer on 16.8.86 that was made on behalf of the accused petitioners for tagging of the two cases for a single trial. Consequently, the Ld. Sessions Judge rightly rejected the criminal motion 99 of 1986 that was preferred by the opposite party No.1 against the said order dated 16.8.86 of the Ld. CJM, by his order dated 14.1.87. It was further contended by Mr. Sengupta that in view of the provision of sub -section (2) of section 210 Cr.P.C., the police case and the complaint case were required to be tried together in accordance with the procedure meant for trial of a case instituted on a police report as if both the cases were instituted on a police report. Accordingly, both the cases were being tried in accordance with the procedure meant for a case instituted on a police report and that is why charges were framed in the complaint case (T58/86) on 27.5.87 without any evidence being taken. That being so, the trial of the two cases was being conducted by the Ld. APP for the State. Mr. Sengupta submitted that a plain reading of Sub - Section (1) and (2) of section 301 would make it abundantly clear that if in a case which is incharge of a public prosecutor or assistant public prosecutor, the private person engages a lawyer then notwithstanding such engagement, the public prosecutor or assistant public prosecutor who is incharge of the case shall conduct the prosecution and the lawyer engaged by the private person shall act therein under the direction of the public prosecutor or assistant public prosecutor and that he can only submit written arguments and that to be with the permission of the Court. In other words, a lawyer engaged by private person had no right of audience in a case which is in charge of a public prosecutor. For this prosecution of law, Mr. Sengupta relies on a decision of a Division Bench of our High Court in the case of Re: Rakhan Singh Ozha reported in 1988 Cr.L.J. 278. Relying on the aforesaid proposition of law, Mr. Sengupta submitted that the de facto complainant's prayer before the trial court for leave for the private lawyer to make some points in connexion with the complaint case was mis -conceived and the Ld. CJM rightly refused 'to grant such leave by his order dated 9.6.89. Mr. Sengupta strenuously contended that the criminal motion 58 of 1988 which was directed against the said order of refusal to grant leave to the private lawyer engaged by the opposite party complainant was not maintainable and the ld. Additional Sessions Judge was not at all justified in allowing that motion by his impugned order dated   15.6.91. In allowing that motion, the Ld. Additional Sessions Judge had virtually set aside the order dated 14.1.87 whereby the ld. Sessions Judge had also rejected the motion (99 of 86) against the Ld. CJM's order dated 16.8.86 permitting the two cases to be tagged and tried as a single case. Mr. Sengupta submitted that such a course is wholly impermissible in law because the Ld. Additional Sessions Judge in the subsequent motion (58 of 89) could not go into the question of permissibility or otherwise of a joint trial of the two cases which was already allowed by the Ld. CJM by his order dated 16.8.86 which was affirmed by the Ld. Sessions Judge by his order dated 14.1.87 in the earlier motion (99 of 86). The impugned order is, according to Mr. Sengupta, hit by the mischief of the principles of res judicata. Reliance has been placed in support of this contention in the Supreme Court case of Manipur Administration v. Bira Singh reported in AIR 1965 Supreme Court 87. For all these reasons stated above, Mr. Sengupta submitted that the impugned order reversing the course of action adopted by the Ld. CJM in relation to the trial of the two cases by his order dated 16.8.86 and affirmed by the Ld. Sessions Judge's order dated 14.1.87 cannot be legally sustained and is required to be set aside.;