1 Challenge in this petition under Articles 226 and 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973 [for short, 'the Code'] is to the order dated 8.3.2011 passed by the learned Judicial Magistrate, First Class, Dhanpur, below Exh.1, in Criminal Case No.2 of 2011, by which, the complaint/application preferred by the petitioner came to be dismissed on the ground that the investigation is carried out by the police pursuant to registration of the FIR, being C.R. No.53/2010.
2 Mr.
Y.M. Thakkar, learned counsel for the petitioner would contend that the language of Section 210 of the Code clearly provides that in case if the police investigation with regard to the same subject matter for which the complaint/application is filed before the Magistrate, is pending, the Magistrate is duty bound to stay the private complaint and further proceedings. Exercise of power of dismissing the complaint of the petitioner is premature and illegal and, therefore, the order impugned deserves to be quashed and set aside.
2.1 Section 210 of the Code reads as under:
"S.210 (1) When in a case instituted otherwise than on a police report (hereinafter referred to as a complaint case), it is made to appear to the Magistrate, during the course of the inquiry or trial held by him, that an investigation by the police is in progress in relation to the offence which is the subject matter of the inquiry or trial held by him, the Magistrate shall stay the proceedings of such inquiry or trial and call for a report on the matter from the police officer conducting the investigation.
(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 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.
(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 Considering the scheme of Section 210 of the Code, in my view, there is a force in the submission of the learned counsel for the petitioner and the order impugned suffers from the vice of illegal exercise of jurisdiction by the learned Magistrate, warranting interference by this Court in exercise of power under Articles 226 and 227 of the Constitution of India. The learned Magistrate could not have dismissed the complaint/application filed by the petitioner on the ground that the investigation for the same subject matter by the police was pending and ought to have stayed that complaint and further proceedings.
4 In the result, this petition is allowed to the aforesaid extent. The the order dated 8.3.2011 passed by the learned Judicial Magistrate, First Class, Dhanpur, below Exh.1, in Criminal Case No.2 of 2011, is quashed and set aside.
(ANANT S. DAVE, J.) (swamy) Top