Rakesh Ranjan Prasad, J. - (1.) HEARD learned Counsel appearing for the petitioner. Nobody appears on behalf of the opposite party No. 2.
(2.) BEFORE proceeding further in the matter, the order passed on 1.5.2014 needs to be reproduced hereunder: "Learned Counsel for the petitioner submits that Kanke P.S. Case No. 56 of 2010 was lodged by the informant which was registered under Sections 498A/34 of Indian Penal Code as well as under Sections 3/4 of Dowry Prohibition Act against eight accused persons. Thereafter a complaint was lodged on the similar allegation against eight accused persons. After holding inquiry, the Court took cognizance of the offence against eight accused persons, whereas the police alter investigating the case did find the allegation to be true against two accused persons namely, husband and mother -in -law, and accordingly, submitted charge -sheet. On submission of charge -sheet, the Court took cognizance of the offence only against the husband and mother -in -law. Thereafter, an application was filed on behalf of the accused persons praying therein for trying the cases analogously. That prayer was allowed. Thereupon, when the question was raised as to whether all eight accused persons would be tried in both the cases i.e., in the case arising out of police report and also in a complaint case, an order was passed by the Trial Court to the effect that the police case will proceed against the husband and mother -in -law whereas complaint case should proceed against the six accused persons other than the husband and mother -in -law. That order was challenged before the Revisional Court and the Revisional Court passed an order to the effect that the case needs to be tried, as the police case in view of the provisions as contained in Section 210(2), Cr.P.C. Meaning thereby that the case would proceed only against the husband and mother -in -law but while passing such order, the Court failed to take into account the provisions, as contained in Section 210(3), Cr.P.C., and thereby it committed illegality in passing the impugned order. Though the opposite party Nos. 2 to 9 have filed paper but no one appears on their behalf. However, with a view to give one more opportunity, post this case on 8.5.2014. It is made clear that if on the next date fixed, no body would turn up, necessary order shall be passed." From the order dated 1.5.2014, it does appear that the issue which has been raised on behalf of the petitioner is that the Court while taking notice of the provision as contained in Sub -section (2) of Section 210 failed to take into account the provision as contained in Sub -section (3) of Section 210. Those provisions reads as under: "210(2) - -If a report is made by the investigating police 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 the complaint case, the Magistrate shall enquire 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; 210(3) - -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 the police report, he shall proceed with the inquiry or trial, which was stayed by him, in accordance with the provisions of this Code."
(3.) FROM the conjoint reading of those provisions, it does appear that if the report is submitted by the police under Section 173 and on that basis if the cognizance of the offence is taken against the person accused in the complaint case, the Magistrate shall enquire into or try together the complaint case as well as the case arising out of the police report as if both the cases have instituted on a police report. However, if the police report submitted does not relate to an accused, the Court should proceed with the inquiry and trial with respect to that/those accused person/persons but both the cases be tried together. However, the evidence should be recorded separately in both the cases one after the other except to the extent that the witnesses for the prosecution who are common to both the cases be examined in one case and their evidence be read as evidence in other. The Court should after recording the evidence of the prosecution witness in one case withhold his judgment and then proceed to record the evidence of the prosecution in the other case. Therefore, he shall proceed to dispose of the cases simultaneously by two separate judgments taking care that the judgment in one case is not based on the evidence recorded in other case which proposition has been laid down by Hon'ble Supreme Court in case of Harjindar Singh v. State of Punjab and Others, : AIR 1985 SC 404. In that event, the order passed by the Trial Court is justified whereas the order passed by the Revisional Court does not seems to be inconsonance with the provision as contained in Sub -sections (2) and (3) of Section 210 of the Code of Criminal Procedure.;