THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY Criminal Revision Case No.183 of 2004 Date:28th February, 2011 Between: 1. Pothuri Muralikrishna & Ors. ..... Petitioners AND 1. Posina Prasada Rao & Ors. .....Respondents *** THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Criminal Revision Case No.183 of 2004 ORDER: This Criminal Revision Case is directed against the order dated 28.06.2002 passed in Crl.R.P.No.127 of 1999 on the file of III Additional Sessions Judge, Guntur, whereby and whereunder the learned Additional Sessions Judge allowed the revision petition filed by the complainants setting aside the order, dated 03.08.1999, passed in Crl.M.P.No.2658 of 1999 in C.C.No.45 of 1999 on the file of V Additional Munsif Magistrate, Guntur. 2. The 1st respondent herein is the complainant in C.C.No.45 of 1999 on the file of V Additional Munsif Magistrate, Guntur. He filed a complaint before V Additional Munsif Magistrate, Guntur, under Sections 190 and 200 Cr.P.C. against Pothuri Muralikrishna, Parvathaneni Venkata Sarma, Pothuri Ramesh, Pothuri Vanaja, Pothuri Sita and Pothuri Umamaheswara Rao regarding the incident said to have taken place on 15.08.1996. It is stated in the complaint that the complainant approached the Pattabhipuram Police several times and requested to take action against the accused, but they did not take any action against the accused. Later, the complainant went to the Government General Hospital, Guntur, for treatment. The Casualty Medical Officer, who treated the complainant, opined that the right hand of the complainant got fractured. The complainant filed a private complaint in CFR No.7496 of 1996 and the same was referred to the Pattabhipuram Police Station under Section 156(3) Cr.P.C. The said Police did not take any action on that complaint. Hence, the complaint before V Additional Munsif Magistrate, Guntur, to take cognizance of the case for the appropriate offences against the accused. The learned Magistrate took cognizance of the case for the offences under Sections 323, 326 r/w.34 IPC. The accused entered appearance and filed petition under Section 245 Cr.P.C., seeking discharge. The learned Magistrate proceeded to allow the application, by order, dated 03.08.1999. Relevant portion of the order needs to be noted and it is thus: “On perusal of the record it is made clear that earlier the respondent/complainant filed C.F.R.7496/96 and the same was forwarded to the S.H.O., Pattabhipuram L&O Police Station u/S.156(3) Cr.P.C. for investigation and report and so far the police did not file the charge-sheet or final report. Meanwhile in the year 1999 again the respondent/complainant filed another complaint for the same offence in which he also mentioned about the filing of earlier complaint, which was forwarded to the police. When the respondent/complainant also filed a complaint for the same offence and when the same is referred to the police for investigation in which they registered the case in Cr.No.159/96 and without waiting till filing of charge-sheet or final report the complainant filed this complaint. Because already the complaint filed by the complainant is under investigation before the police the respondent/complainant is not entitled to file another complaint for the same incident and for the same offence. If there is delay in filing the charge-sheet or final report by the police the respondent/complainant has to file a petition before the court to give direction to the S.H.O. but not entitled to file fresh complaint again. For the above reasons the present complaint filed by the complainant is not maintainable because the accused shall not be punished twice for the same offence. Hence, the petitioners are entitled for discharge as prayed for.” The complainant and the injured filed Crl.R.P.No.127 of 1999 on the file of III Additional Sessions Judge, Guntur, assailing the order of discharge, dated 03.08.1999, passed in Crl.M.P.No.2658 of 1999 in C.C.No.45 of 1999. The learned III Additional Sessions Judge, after referring the brief history of the disputes between the parties and the cases arising out of the said disputes, proceeded to allow the revision petition by setting aside the order, dated 03.08.1999, passed in Crl.M.P.No.2658 of 1999 in C.C.No.45 of 1999, by order, dated 28.06.2002. For better appreciation, I may refer the relevant portion of the order passed by the learned Additional Sessions Judge, which reads as hereunder: “The complaint filed by the first petitioner herein alleged to have been not taken by the police, as such the first petitioner filed private complaint before the court which was referred to the police and the police registered the same as a case in Crime No.159/96. By the date of impugned orders the police did not file charge-sheet in crime No.159/96 and the same was pending. In the above circumstances the first petitioner filed another private complaint relating to the same incident, which was taken on file as C.C.45/99. After service of summons, the respondents 1 to 6 herein filed application in Crl.M.P.2658/99 seeking discharge on the ground that earlier complaint referred to the police by the court was pending investigation, basing upon the above circumstances, the learned trial court discharged the respondents 1 to 6 herein on the ground that the petitioners are not entitled to file private complaint one after another, that the petitioner is not entitled to file second private complaint, as such discharged the respondents 1 to 6/accused in C.C.45/99 on the file of the court of V Addl. Munsif Magistrate, Guntur. I am unable to accept the said finding of the learned trial court firstly on the ground that earlier private complaint referred to the police by the court in crime No.159/96 was still pending investigation. In such circumstances, when second private complaint is filed with regard to the same incident, the learned trial court ought to have kept it pending to be tried along with the charge-sheet filed in Crime No.159/96 or the learned trial court ought to have sought report of investigation made by the police. So far as releasing of accused in C.C.45/99 on the file of the trial court adversely affects the trial after filing of the charge-sheet in Crime No.159/96, as once the accused are discharged the court can not again proceed against the accused for the same incident whereunder they were discharged earlier.” 3. Heard learned counsel appearing for the petitioners/accused and learned counsel appearing for the respondents 1 and 2/complaianants. 4. Learned counsel appearing for the petitioners/accused submits that earlier complaint filed by the 1st respondent/ complainant herein has been referred as a mistake of fact and therefore, the learned Magistrate is justified in discharging the accused with regard to the self same incident in respect of which case they are being prosecuted. 5. Learned counsel appearing for the respondents 1 and 2/complaianants supported the order impugned in the revision. 6. I have gone through the orders passed by the trial Court as well as the revisional court. By the date of the order passed by the learned Magistrate, the final report in the earlier complaint is stated to have been not filed. In which case, Section 210 Cr.P.C.. is required to be followed, which reads as hereunder: “210. P0rocedure 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 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 S.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.” The revisional Court taking note of the facts and circumstances, proceeded to allow the revision by giving cogent and convincing reasons. It is stated by the revisional Court that in the event of police filing the final report in Crime No.159/96, the Magistrate ought to have heard the complainant before passing orders. The revisional Court has assigned valid and convincing reasons for setting aside the order passed by the learned Magistrate in Crl.M.P.No.2658 of 1999 in C.C.No.45 of 1999. I do not see any flaw in the order impugned in the revision warranting interference of this Court in exercise of powers under Section 397 Cr.P.C. 7. Accordingly, the Criminal Revision Case is dismissed. ______________________ B.SESHASAYANA REDDY, J. Date:28th February, 2011 cs THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY Criminal Revision Case No.183 of 2004 Date:28th February, 2011