K. D. SHARMA, J. - (1.) THIS is a reference made by the learned Addl. Sessions Judge No 2, Jodhpur with a recommendation that the order of the Addl. Munsiff-Magistrate No. 1, Jodhpur City, dated 20-3-1973, by which a criminal cnse (No. 149 of 1972 Madan Gopal vs. Nand Kishore, under secs. 330, 331, 327, 367, 307 & 120-B I. P. C ) instituted on a complaint was amalgamated with criminal case No. 12 of 1972 (State vs. Nand Kishore and others, under secs. 342, 323 and 330, I. P. C.) instituted on a police report relating to the same occurrence, may be set aside and the learned Magistrate may be directed to hold separate trials in both the cases without consolidating them.
(2.) THE reference arises under the following circumstances - Madan Gopal alias Balia son of Amba Lal glod-smith lodged a report with the police on 3-4-71 at 7-30 P. M. at police station, Khanda Phalsa that on that date he was taken inside the room of Nand Kishore and was beaten by Gopi, Shanker, Kishori Lal and Nand Kishore with a log a wood upon his denial to dishonestly misappropriate some gold while preparing a chain for Nand Kishore It was further alleged that the complainant was made naked, tortured and unlawfully detained during the period between 2 30 p. m. and 6. 00 or 6. 15 p. m. On the basis of the above report, the police registered a criminal case under sec. 342, I. P. C and after making usual investigation put up a challan against six accused, namely, Nand Kishore, Kripa Shanker, Ram Swaroop, Kishori Lal, Bhanwar Lal and Gauri Shanker son of Ramdas in the court of the Addl. Munsiff-Magistrate No 1, Jodhpur City. Meanwhile Madan Gopal filed a complaint also against five out of the aforesaid six persons and five others, namely, Gauri Shanker, Kedar, Tulsi Ram, Gopi Kishan and Madan Kandi for offences under secs. 330, 331, 327, 367, 307 and 120-B I. P. C. . on which cognizance was taken and process was issued to the accused persons for offences under secs, 330, 342 and 367, I. P. C. only. Later on, upon an application of the accused persons both the cases were amalgamated by the learned Magistrate on the grounds that separate trials would cause harassment to the accused persons and inconvenience to the witnesses who may be required to attend the court twice for the purpose of giving evidence in both the cases. Aggrieved by the order of the learned Magistrate, the complainant filed a revision petition in the court of the Sessions Judge, Jodhpur, from where the case was transferred to the court of the Addl. Sessions Judge No. 2, Jodhpur. The learned Addl. Sessions Judge relying upon an authority of this Court Gopal vs. The State (l) was of the view that the amalgamation of the two cases by an order of the learned Magistrate was illegal. Hence he made this reference. I have gone through the record and heard the arguments advanced by Shri R. R. Chacha for the petitioner and Shri K. C. Lodha for the non-petitioners. It may be observed at the very outset that where a complaint and a police report are filed against the same accused in respect of the same offence or offences, it may be open to the Magistrate to proceed with the challan case or with the case instituted on complaint in accordance with the procedure prescribed therefor, but in cases like the present one where police challan is filed against five persons and a complaint is made against five of them and other 6 co-accused for a different offence under sec. 367 along with secs. 342 and 330, I. P. C. it is not permissible to merge the police challan with the complaint case on the grounds that the procedure laid down for committal inquiry in cases instituted on a complaint is more elaborate than the one prescribed for an inquiry preparatory to commitment upon a police case and that the accused persons could have no grievance against the order of consolidation. A similar view was taken by a D. B of this Court in the referred-to-above case, wherein their Lordships were pleased to make the following observations - "however, where there is a complaint and also a police challan, it is competent for the Magistrate to proceed with the trial of one of the two cases according to the procedure appli cable to it. In other words, if he continues to try the complaint case, he may do so and follow the procedure laid down under secs. 252 to 259, Cr. P. C. and allow the police challan to lie over and vice versa. " In support of his contention, on the other hand, the learned counsel for the non-petitioners relied on Jagdish vs. The State (2), State vs. Salu (3), Thakur Ram vs. State of Bihar (4), and Raghubans Dubey vs. State of Bihar (5 ). In State vs. Matu (6), relied upon by the learned counsel for the non-petitioners a charge-sheet was put up in the committing court against the accused for a particular offence of offences and then a private complaint was also filed in the same court for the same offence or offences against the same accused. In these circumstances, it was observed by the learned Judge of this Court that the proper course would be to commence an inquiry under S. 207-A. of the old Criminal Procedure Code on a police challan, because no useful purpose would be served by making an inquiry on the basis of the complaint also. It was further observed that if upon the inquiry on the basis of the police report there are grounds for committing the accused to the court of Sessions for trial, the inquiring Magistrate may pass an order of commitment but if the inquiring Magistrate in such a case arrives at conclusions that there are no grounds for committing the accused for trial, he may reserve the order and proceed to conduct an inquiry into the complaint case provided the complainant desires to produce additional evidence against the|accused. The ratio decidendi of State vs. Matu (supra), as I understand, was that if a charge-sheet is put up by the police against an accused or accused persons for the same offence or offences and the complainant also files a complaint against the same accused person or persons for the same offence or offences, it is not necessary to conduct separate inquiries in the two cases at the same time, because, separate inquiries are made in such a case, the accused and the witnesses would be put to great harassment and inconvenience. On the basis of the above reasoning, the learned Single Judge of this Court held that even if the Magistrate has amalgamated an inquiry instituted on the police report with an inquiry commenced on a private report, he committed no error in adopting a more elaborate procedure contained in sec. 208 and subsequent sections of the old Criminal Procedure Code. The above authority is distinguishable on the facts of this case, because, as stated earlier, the complainant has implicated 5 more accused persons, namely, Kedar, Tulsi Ram, Gauri Shanker S/o Moolchand, Madan Kandi and Gopi Kishan in the complaint along with five accused against whom a challan also had been produced by the police after making usual investigation. Apart from this, cognizance has been taken by the learned Magistrate upon complaint filed by Madan Gopal under sec. 367, I. P. C. also along with secs. 342 and 330, I. P. C. while on the basis of the charge-sheet submitted by the police, no cognizance has been taken against the six accused persons under sec. 367, I. P. C. Moreover, the police has challaned six accused persons under sec. 323, I. P. C. along with secs, 342 and 330, but no complaint under sec. 323, I. P. C. has been filed against the ten accused by the complainant. In this manner, the police challan and the complaint are not filed against the same accused person or persons for the same offence or offences. The complainant wanted that some more persons in addition to those challaned by the police should be punished. He thought that the police has not prosecuted the accused for certain offence and that the accused persons should be charged with one more offence under sec. 367, I. P. C. In such a situation, there is no sense in consolidating the inquiry on a police report with the complaint. Consequently, I am of the view that it is not permissible to amalgamate the police challan with the complaint case, because it will create unnecessary complications. However, I may observe that as the five accused namely, Nand Kishore, Ram Swaroop, Kishori Lal, Bhanwar Lal and Gauri Shanker S/o Ramdas are common in the complaint as well as in the police challan, the committal inquiry against them should be commenced under sec. 207-A Criminal Procedure Code along with Kripa Shanker on the police challan only for offences under secs 330, 342 and 323, I. P. C. The inquiry against these five common accused has to be made separately under sec. 208; Cr. P. C. upon the complaint filed by Madan Gopal so far as it relates to an offence punishable under sec. 367, I. P. C , because the police has not put up a charge-sheet against them under sec. 367, I. P. C and because process has been issued against them by the learned Magistrate in the complaint case for this offence. If the learned Magistrate finds upon evidence that there are grounds for committing these five common accused to the court of Session for trial under sec. 367, I. P. C. he may commit them, but if he arrives at a conclusion that there are no such grounds for their commitment, for an offence under sec. 367, I. P. C. he may discharge them in the complaint case. It may be pointed out further that if on inquiry on the police challan, against these five common accused, the committing Magistrate comes to a conclusion that there are no good grounds for committing them to the court of Session for trial for offences under secs. 330, 323 and 342, I. P. C. he shall reserve the case and proceed to make an inquiry against them in the complaint case, provided the complainant desires to adduce additional evidence against these accused persons. After such inquiry on the complaint he will pass an appropriate order according to law in the case regarding these five common accused persons. Likewise, the learned Magistrate should proceed to conduct a separate inquiry on complaint against the additional five accused namely, Kedar, Tulsiram, Gauri Shanker S/o Moolchand, Madan Kandi and Gopi Kishan in accordance with the procedure laid down under sec. 208 of the old Cr. P. C. The reference is, therefore, accepted, accordingly and the impugned order of the learned Additional Munsiff-Magistrate No. 1, Jodhpur City, dated 20-3-1973 is set aside and the case is sent back to the learned Munsiff and Judicial Magistrate, Jodhpur City, for committal inquiry in the light of the above observations. .;