KANTA BHATNAGAR, J. - (1.) THIS revision petition has been preferred against the order passed by the learned Judicial Magistrate, Nagaur dated June 13, 1978 by which he, in view of the provisions of section 210 (2) of the Code of Criminal Procedure, amalgamated the case against the petitioners filed on a complaint with the case instituted on a police report for the same offence. The learned Magistrate ordered that the statements recorded under sections 200 and 202, Code of Criminal Procedure, in the complaint case will be read against the accused petitioners Megharam and Rajaram and there appears to be a prima facie case under section 380, Indian Penal Code, against them.
(2.) THE learned counsel for the petitioners does not challenge the legality of the order so far as the trial of the complaint case and the case instituted on a police report being conducted together is concerned, but his contention is that the finding of the learned Magistrate that the statements recorded under secs. 200 and 202, Code of Criminal Procedure, will be read against the petitioners is erroneous. He has based his arguments on the ground that these statements were recorded in the absence of the accused and therefore the procedure adopted for the warrant case instituted otherwise than on a police report should have been followed. According to the learned counsel the statements so recorded have no sanctity and therefore before framing the charge the procedure under sections 239, 240 and 244, Code of Criminal Procedure, should have been adopted and if the matter against the petitioners was to be probed into, the statements to be recorded under section 244, Code of Criminal Procedure, only could be taken into consideration. In support of his contention the. learned counsel referred to the case: Sohan vs. THE State (1) wherein it has been observed that section 254 (old Code) does not empower a Magistrate to frame a charge against an accused on the basis of the evidence recorded in his absence before summoning him to appear in the court. According to the learned counsel even after the complaint case and the case instituted on a police report being merged they do not lose their separate existence, and the case should be proceeded as complaint case, so far as the complaint matter is concerned and it is only for the trial purpose that they become one. According to the learned counsel the statements under sections 200 and 202, Code of Criminal Procedure, being over-looked in the present case there remains nothing against the accused-petitioners to saddle them with any guilt and therefore these statements should not have been read against them in order to arrive at the conclusion that a prima facie case is made out against them. Controverting the arguments the learned Public Prosecutor submitted that the authority cited above relates to the Old Criminal Procedure Code and after the insertion of section 210, Code of Criminal Procedure in the year 1973 the position has altogether changed and the very purpose of amalgamating the complaint case with the case instituted on a police report is to avoid two proceedings and thereby all the material in the complaint case, of whatever type it be, should be taken into consideration while hearing the arguments for framing of a charge. In support of his contention the learned Public Prosecutor referred to the case : Mohanlal vs. The State of Rajasthan (2), wherein it has been observed that the case registered on a private complaint and on a police challan in respect of the same offence should be enquired into together as if both are registered on police report. According to the learned Public Prosecutor if such statements cannot be read into evidence then the case of the complainant will be prejudiced because there will be nothing on record against the accused. According to him cases are not rare in which the accused manage to save themselves in police enquiry and then the complainant takes recourse to the court by filing a complaint and when the material comes against the accused in the statements recorded under sections 200 and 202, Code of Criminal Procedure, the Magistrate is well within his powers to take those statements into consideration. I heard rival contentions and looked into the facts of the case and studied the position of law. The case referred to by the learned counsel for the petitioners relates to the provisions of the Code of Criminal Procedure before the amendment in 1973, and there was no provision in the old code about amalgamation of the two cases and their being enquired into or tried together. In the case referred to by the learned Public Prosecutor : Mohanlal vs. The State of Rajasthan (2) the matter under consideration was regarding the provisions of section 210 (2), Code of Criminal Procedure, and the Judicial Magistrate concerned was directed to enquire into together in the complaint case and the case arising out of the police challan as if both the cases are instituted on a police report. Sec. 210 (2), Code of Crimmal Procedure, reads as under, - " (2) If a report is made by the investigating police officer under sec. 173 and on such report cognizance of any offence is taken by the Magistrate against any person who is an accused in the complaint case, the Magistrate shall 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. " The Old Code did not contain any corresponding provision to this section of the New Code. The complaint in the present case was against the four accused and against two out of them the police challan was presented. Hence there is no dispute on the point whether the ingredients required under section 210 (2) were there to enquire or try both the cases together. The arguments of the learned counsel for the petitioners are based on the provisions of section 239, Code of Crimmal Procedure, which provide about the consideration of the police report and the documents sent with it under section 173, Code of Criminal Procedure. The argument that the statements recorded under secs. 200 and 202, Code of Criminal Procedure, do not form the part of the police report is not appealing in view of the specific provisions of section 210 (2), Code of Criminal Procedure. In may opinion when the cases are to be enquired and tried together as if both the cases were instituted on a police report, the provisions of sec. 239, Code of Criminal Procedure, are not to be technically applied, that is to say, the statements recorded in the court under sections 200 and 202, Code of Criminal Procedure, become part and parcel of the file and will be looked in the same way as the documents submitted under section 173, Code of Criminal Procedure. The contention of the learned counsel for the petitioners is that there is no term as 'amalgamation' of the two types of cases in the Code and therefore the separate identity remains is devoid of force. This is correct that this term 'amalgamation' is not there in the Code but the use of the term 'the two cases will be enquired or tried together, connotes the same meaning. The word 'amalgamate' according to the Webster's Dictionary means to compound or mix together; to merge. In my opinion, once there is the order of the two cases being enquired or tried together as if both of them have been instituted on a police report the complaint case lost its identity and separate existence and it merged with the police case which retained its identity. In view of this situation, the papers in the complaint case filed became part and parcel of the case instituted on police report and the papers of the former can be legally read and considered by the court. When both the cases are to proceed together, there arises no question of the evidence under section 244, Code of Criminal Procedure, being recorded before hearing the arguments on charge. In view of this discussion. I am inclined to say that the learned Magistrate has committed no illegality in giving a finding that the statements under sections 200 and 202, Code of Criminal Procedure, will be read in the case of the accused-petitioners Rajaram and Megharam.
(3.) THE learned counsel for the petitioners assailed the order of the learned Magistrate passed against the petitioners on merits also. According to him even if these statements under sections 200 and 202, Code of Criminal Procedure, are read and considered there is no prima facie case made out against the accused. It has been strenuously contended by the learned counsel that the evidence against the accused about some piece of paper containing the accounts of the house of Rajaram being found at the place of occurrence is not substantiated by the police enquiry. THE statements of the witnesses for the alleged extra, judicial confession of the accused Rajaram shows that that statement was made by the accused while in police custody. According to the learned counsel this type of evidence is not admissible and by no stretch of imagination the conviction can be expected upon such evidence, hence the accused should have been discharged. The learned Public Prosecutor, to meet out this argument, drew my attention to the observations made in the case: Nagawwa vs. Veerana (3) that the Magistrate has been given an undoubted discretion in the matter and the discretion has to be judicially exercised by him. Once the Magistrate has exercised his discretion it is not for the High Court, or even the Supreme Court to substitute its own discretion for that of the Magistrate or to examine the case on merits with a view to find out whether or not the allegations in the complaint, if proved, would ultimately end in conviction of the accused. There is no dispute about this principle that what the Magistrate is expected to look into is whether a prima facie case is made out and if he has judicially applied his mind the revisional court should not interfere in the finding only because it can arrive at a different conclusion by appraisal of evidence, but if in a case the perusal of the evidence shows that no prima facie case is made out against the accused, then there is no hurdle in the revisional court interfering with the opinion of the Magistrate. Keeping this principle in mind when I look to the record of the case before me I find from the statements of the complainant and his witnesses recorded under sections 200 and 202. Code of Criminal Procedure that the evidence against the accused Rajaram is the recovery of a 'halvani' at the site of occurrence, the alleged admission of the accused before Meha Ram, while in police custody, and the testimoney that the father of the accused admitted that the 'halvani' belongs to him and the father being agreeable to return the amount. About Megharam there is the evidence of Tilokaram that when the accused was in the police custody he was brought out of the 'kothari' and on enquiry by his brother he told that the articles were not with him and his father may be asked to give money to the complainant. There is the evidence of Ghamandaram about the foot-prints of the two accused being found at the site. So far as the piece of paper is concerned, the learned Public Prosecutor fairly conceedes that the police enquiry papers do not disclose that any such paper was found or taken possession of by the police and he does not rely on this part of the testimony against Rajaram, About the 'halvani' also he agrees that there is no evidence that it belonged to the accused and the contentiont of the father of the accused that the 'halvani' belonged to him will not connect the accused with the commission of the crime. About the statements of the two accused while in custody the learned Public Prosecutor contends that though the accused were in the police custody at the time the statements were made to independent persons and so they may be treated as extra-judicial confessions. In view of the specific provisions of section 26 of the Evidence Act that the confession by the accused while in custody of the police will not be proved against him unless made in the immediate presence of a Magistrate, this argument loses its force and therefore this evidence cannot be said to be of any help to the prosecution. Now I am left with the solitary testimony of the tracker Ghamandaram on the point. This witness in his statement under section 202, Code of Criminal Procedure, stated that when the theft was committed at the house of Budha he was called by the police and he saw the foot-prints of men there which were covered and he seeing the foot-prints at other places traced them and those were the foot-prints of Rajaram and Magharam. Relevant it is to note that the moulds were not taken and where the other foot-prints of Rajaram and Megharam were shown to the tracker is not known. The important factor to be noted is that this witness Ghamandaram was examined by the police and has deposed there that he had not traced out any tracks nor identified any. The learned Public Prosecutor fairly agrees that the statement of the witness Ghamandaram in the police may be used by the accused while cross-examining the witness during the course of trial and Ghamandaram may be proved to be a useless witness to the prosecution. ;