Reserved Judgment IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Misc. Application No.353 of 2003 (Under Sec.482 of Cr.P.C.) Narendra Kumar & another. ………………..Applicants. Versus Judicial Magistrate, Roorkee and others. ………….Opposite Parties. …………………. Mr. H.C.Pathak, learned counsel for the applicants. Mr. Nandan Arya, learned AGA for the State of Uttarakhand/opposite party Nos. 1 and 2. Mr. S.S. Bhandari Advocate holding brief of Sri Navneet Kaushik, learned counsel for the opposite party No. 3. December 04, 2008 Hon’ble P.C. Verma, J. This application has been preferred under Section 482 of Criminal Procedure Code for quashing of the charge-sheet dated 31.10.2003 and cognizance taken thereon on 2.12.2003 by the Judicial Magistrate, Roorkee. 2. Brief facts of the case, according to the applicants, are that an F.I.R. was lodged by the complainant-Raj Kumar on 25.11.2002 at P.S. - Bhagwanpur (District-Hardwar) under Sections 307, 323, 324, 452, 504 and 506 I.P.C. that the petitioner assaulted his family members. The case was registered at Crime No. 176 of 2002. 2 3. According to the FIR, on 24.11.2002 at about 9.00 p.m., when nephew of the complainant/respondent no. 3, namely, Ankur was sleeping in his house, Mr. Narendra Kumar and Satish Kumar (present applicants) entered in his house and tried to strangulate him by Muffler. Mr. Ankur woke up and started hue and cry. On hearing the noise, his mother (Arpita) and younger sister (Alpana) arrived at that place and resisted them from doing so. The applicants ran away from there hurling filthy words and beating all the three with fists, slaps and knives. All the three, namely, Ankur, his mother and his younger sister received grievous injuries. They also threatened that they would not leave them alive and they would take revenge from them for initiating litigation proceedings The Opp.parties also threatened them whenever they would get chance, they would kill Mr. Ankur. 4. The Investigating Officer after completing the investigation submitted charge sheet on 31.10.2003 against the applicants under Sections 323, 324, 504, 506 & 307 I.P.C. relying upon the medical report of injured- Ankur. 5. The Judicial Magistrate, Roorkee, Haridwar took cognizance and issued bailable-warrant against the applicants on 2.12.2003 and ensured the presence of the applicants (accused) in the court fixed the date for appearance on 9.12.2003. Applicants were not arrested by the Police Authorities. The S.S.P Haridwar ordered further investigation of the case U/s 173 (8) of Cr.P.P. assigning it to Special Investigation Squad after 3 submission of the aforesaid charge-sheet. The Investigating Officer (Special Investigation Squad) moved an application on 8.12.2003 before the trial Court seeking permission for further investigation as per provisions of Section 173(8) Cr.P.C. The Learned Magistrate granted permission accordingly on the same date. Thereafter, another application was moved by Investigating Officer on the very same day praying for suspension of the proceedings till the completion of further investigation. The Magistrate granted this permission too and suspended the proceedings. 6. The Investigating Officer (Special Investigation Squad) during this further investigation arrested both the applicants under Sections 323, 324, 504, 506 I.P.C. and produced them before the Court, fromwhere, both were released on bail on 14.12.2003. 7. After completion of further investigation, the Investigating Officer submitted charge-sheet dated 15.12.2003 before the Magistrate U/s 323, 324, 504 & 506 I.P.C. deleting Sections 307 and 452 I.P.C. On the basis of this successive charge-sheet, the Magistrate registered a different Criminal Case No. 39 of 2004 and took cognizance on 21.1.2004 summoning the applicants to face trial under Sections 323, 324, 504 and 506 I.P.C. and to appear before him on 21.2.2004 in the Court. 8. Being aggrieved of these two cognizance for one incident on different opinion of two Investigating Officers, the applicants have preferred the application under Sec. 482 Cr.P.C. 4 9. Heard learned counsel for the parties and perused the counter affidavit as well as the documents on record. 10. It is true that cognizance of offence in a case cannot be taken twice for one incident. The Investigating Officer (Special Investigation Squad) was bound to give his report after fresh investigation under Section 173(8) Cr.P.C., but learned Magistrate was supposed to consolidate both the charge-sheets and then he had to evaluate the evidence collected by both the Investigating Officers during their respective investigation and thereafter, he had to come to conclusion to proceed with the trial of the case. Had the Magistrate felt the case to be a case exclusively triable by the Court of Sessions, he would have proceeded according to the provisions of Section 209 of Cr.P.C. or would have proceeded at his own as per provisions of Cr.P.C., whatever the case would have been, but the Judicial Magistrate has not done so. Therefore, the cognizance taken by the Judicial Magistrate on 21.2.2004 deserves to be quashed and is hereby quashed and Judicial Magistrate is directed to consolidate both the charge-sheets in order to evaluate the cognizance afresh. 11. Since the applicants, in the present case, are already on bail, they need not to undergo the bail process afresh and shall be deemed to be enlarged on bail. It is also made clear that this bail immunity will not be shaken until the petitioners abuse the bail during the process of trial. The Magistrate shall undertake the trial according to the observations made above. 5 12. With the aforesaid observation, the application filed under Section 482 Cr.P.C. is disposed of finally. (P.C. Verma,J.) 04.12.2008 Rathaur/P.Singh