ORDER [ENTITY], J.
1. This criminal writ petition has been preferred for and on behalf of the petitioner above-named for issuance of an appropriate writ to quash the prosecution arising out of [CASE NUMBER] against the petitioner and others, wherein allegations have been levelled under [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION] of the [ACT]. The petitioner has moved this Court during the course of investigation of the police case.
2. Respondent No. 4, [ENTITY], had filed a petition of complaint (Annexure 1) in the Court of the learned Chief Judicial Magistrate, Bettiah, on 4-3-92, wherein allegations had been levelled against the petitioner and others under [SECTION], [SECTION], [SECTION], [SECTION] and [SECTION], [ACT], inter alia, for illegal confinement and repeated acts of rape on her between 14-1-92 to 28-2-92. According to the allegations levelled therein, the complainant (respondent No. 4 herein) along with 3-4 other girls had gone to the petitioner's land for agricultural work. The petitioner had sighted respondent No. 4 and had her forcibly brought by [ENTITY] (accused No. 5), and had raped her in amidst sugarcane crops followed with threat to kill her if she disclosed the occurrence. The husband of respondent No. 4 had on 14-1-92 gone on the petitioner's tractor to deliver sugarcane in the Sugar Mill, who is the petitioner's employee. The petitioner had with the help of other accused persons brought respondent no. 4 by force to his place and again raped her and had her sent to village Uttarwahini, the village of [ENTITY] (accused No. 6), where she was kept in confinement for one month during which period the petitioner used to go there to rape her. After about a month the petitioner and other accused persons had taken her to village Ahbar, P. S. Manjhaulia, where she was kept in confinement for a few days, and thereafter on 28-2-92 was dropped at village Dughalia (P. S. Jogapatti), near a canal, where the petitioner had again committed criminal assault on her followed by lathi blows by other persons with intention to kill her. Taking her to be dead, the accused persons dragged her into the cane field and ran away. After she regained consciousness on the next morning she reached the adjoining village Dugbalia and her relatives reached her to her father's place.
2.1 According to the further allegations, she had reported at Chanpatia police station on 15-1-92, but the officer-in-charge refused to record First Information Report because petitioner No. 1 is a rich and influential person. The reason for the delay in filing the petition of complaint is that she is a poor and helpless woman and also for the reason of her physical agony. The complaint petition (Annexure-1) is dated 4-3-92, and was registered as Complaint Case No. 155 C/92 ([ENTITY] v. Birendra Kumar Sharma alias Birendra Kuar and Ors. After an enquiry under [SECTION] of the [ACT] (hereinafter referred to as the Code), the learned CJM, Bettiah, passed order dated 22-6-92 (An-nexure-7) wherein cognizance of the alleged offences was taken under [SECTION], [SECTION], [SECTION], [ACT], and summoned [ENTITY] for trial. The remaining accused persons including the petitioner herein were discharged.
3. Aggrieved by the aforesaid order dated 22-6-92 (Annexure-7), respondent No. 4 herein (the complainant) preferred [CASE NUMBER] before the learned Sessions Judge, West Champaran, Bettiah, which was disposed of by order dated 30-6-92 (Annexure-9), whereby the revision application was substantially dismissed with the following observations.
In the light of the aforesaid authoritative pronouncement of the Supreme Court it is not proper to interfere in the discretion exercised by the learned C.J.M., even if two views are possible. The Court is at liberty to summon other of the accused persons at later stage. This is not a fit case for admission and, therefore, it is dismissed.
Signed Sessions Judge.
I am informed at the Bar that aggrieved by the aforesaid orders dated 22-6-92 (Annex-ure-7) and dated 30-9-92 (Annexure-9), respondent No. 4 herein had preferred [CASE NUMBER] ([ENTITY] v. [ENTITY]) in this Court which was disposed of by a learned single Judge by order dated 18-8-93 with the observation that it is dismissed at this stage. The petitioner can renew the prayer at an appropriate stage.
4. It appears that respondent No. 4 lodged the present FIR dated 31-5-92, with Chanpatia police station, levelling same or similar allegations as alleged in the aforesaid petition of complaint (Annexure-1), giving rise to the present writ petition. The FIR was registered as [CASE NUMBER], dated 2-6-92 under [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [ACT]. Before the investigation could make headway, the petitioner preferred the present writ petition and this Court by order dated 11-6-92 issued notices to the respondents and stayed further investigation in [CASE NUMBER], and in the meanwhile no coercive step was to be taken against the petitioner. It was admitted by order dated 1-12-92, and the aforesaid interim order of stay passed on 11-6-92 was substantially modified to the effect that pending final hearing of this writ petition, no coercive steps shall be taken against the petitioner, but the investigation in [CASE NUMBER] will proceed. The order dated 22-6-99 on this writ petition records that the learned Government Advocate had informed this Court that police investigation in the case was almost complete and the same has also been supervised by the Sub-Divisional Police Officer. Learned G. A. had further submitted that final form shall be submitted in this case within a period of two weeks and the case appears to have been adjourned to enable the learned G.A. to obtain the latest position in the matter.
5. On these facts, learned Counsel for the petitioner submitted that two modes have been prescribed in the Code to start a prosecution. The first one is contained in [SECTION] of the Code the heading of which is "Information to the Police and their powers to investigate" and the second mode is prescribed in [SECTION] of the Code the heading of which is "Complaints to Magistrate". In his submission the option is with the victim to initiate the prosecution either under [SECTION] or under [SECTION] of the Code. He cannot take recourse to both. He has also sought to derive support from the provisions of [SECTION] of the Code, which is set out hereinbelow :
210. "Procedure to be followed when there is a complaint case and police investigation in respect of the same offence.
(1) When in a case instituted otherwise than on a police report (hereinafter referred to as 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] 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.
Learned Counsel relied on the reported judgment of the Supreme Court reported in [PRECEDENT]. He next contended that if the investigation is allowed to continue, then it may result in anomalous and contradictory position, inasmuch as the order taking cognizance of the Magistrate has been upheld by the Sessions Judge and has not been interfered with by this Court. If the investigation is allowed to proceed, and the other accused persons are charge-sheeted, it will create an irreconcilable situation in relation to the proceedings in the complaint case. He further submitted that the learned Sessions Judge by his order dated 30-9-92 (Annexure-9), has left the scope open to summon the petitioner herein and the other accused persons for trial in case materials come on record during the course of the trial, which is fully sanctioned by [SECTION] of the Code. He also tried to derive support from the provisions of [SECTION] of the Code do not in terms apply to the facts and circumstances of the case but to throw light on the issue in hand.
6. Learned counsel for respondent No. 4 ([ENTITY]), submitted that the allegations against the petitioner and other accused persons are with respect to a very grave offence and should not be allowed to go unpunished. He, therefore, submitted that the investigation should be allowed to reach its logical conclusion. Learned counsel has relied on the following reported judgments :
I. [PRECEDENT]); II. [PRECEDENT]); III. [PRECEDENT].
7. Learned Counsel for respondent Nos. 1 to 3 ([ENTITY] and its functionaries) did not advance any argument in opposition of the writ petition. He only prayed for time to ascertain the latest position.
8. Having considered the rival submissions, I am of the view that this writ petition has to be dismissed. The reliance placed by learned Counsel for the petitioner on the provisions of [SECTION] of the Code is wholly misconceived and, in fact, completely negatives his case. This is a newly inserted provision introduced for the first time in the [ACT] and completely takes care of the present case, namely, where both the complaint petition as well as the F.I.R. has been lodged with respect to the same offence and the former is earlier in point of time. It provides that when a complaint is filed and it appears to the Magistrate during the enquiry or trial that the police is also investigating the same offence, the Magistrate shall stay the complaint case and call for a report from the police officer on the matter. If a police report under [SECTION] of the Code is received, and on such police report the Magistrate takes cognizance of another offence against any person who is an accused in the complaint case, both the complaint and the case arising out of the police report shall be tried together by the Magistrate. In other words, as has been held in a learned single Judge judgment of the Gauhati (Gujarat) High Court reported in [PRECEDENT], that where during the course of enquiry or trial of a complaint case it appears to the Magistrate that investigation by the police is in progress with respect to the subject-matter of the complaint case, then he has to stay the matter and call for a report of the police and then he has to try together the complaint case and the case arising out of the police report. It has been held by a learned single Judge of the Delhi High Court in its judgment reported in [PRECEDENT] that the provisions of [SECTION] of the Code are inapplicable in cases where the complaint petition is later in point of time. It has further been held that the provisions of [SECTION] of the Code are mandatory.
8.1 It is thus manifest that the object underlying [SECTION] of the Code is that when the offence in the complaint case and the police case are identical, they should be tried together to avoid unnecessary multiplicity of proceedings. The conditions for applicability of [SECTION] are :
(a) that there should be a case instituted on a complaint pending enquiry or trial,
(b) the investigation by the police should be in progress in relation to the same offence,
(c) the complaint should be earlier in point of time.
I have no doubt that the present case is fully covered by [SECTION] of the Code which applies during the course of trial also of the complaint case i.e. in the post-cognizance stage also. The provisions are mandatory.
9. I must at this stage deal with the contention of the petitioner that the order of cognizance dated 22-6-92 (Annexure-7), has been upheld by the learned Sessions Judge by his order dated 30-9-92 (Annexure-9), passed in [CASE NUMBER], and the same was not interfered with by this Court in [CASE NUMBER]. It is not possible to agree with the contention for the reason that the proceedings before the Sessions Judge and in this Court were confined to the validity of the aforesaid order of cognizance dated 22-6-92 (Annexure-7). There was no occasion in those two proceedings to consider the effect of [SECTION] of the Code with respect to the present F.I.R. It is the present writ petition which raises the validity of institution of the present FIR. Therefore, this Court has no doubt that there is no conflict between the aforesaid orders of the Sessions Judge and this Court on the one hand, and the present proceedings, on the other. The apparent conflict adverted to by the learned Counsel for the petitioner is clearly answered by the provisions of [SECTION] of the Code. The contention is rejected.
10. This writ petition, therefore, fails. The police is directed to conclude the investigation in [CASE NUMBER], dated 31-5-92, and submit the report to the Magistrate in accordance with law within a maximum period of one month from the date of receipt of a copy of this order. The learned Magistrate shall proceed with the complaint case as well as the FIR in accordance with the provisions of [SECTION] of the Code.
11. In the result, this writ petition is dismissed. It goes without saying that all interim orders passed by this Court earlier on this writ petition automatically stand vacated. This being an old case, the learned Magistrate is directed to proceed expedi-tiously. Let a copy of this judgment be faxed to the trial Court forthwith to be forwarded to the police.