IN THE HIGH COURT OF JUDICATURE AT PATNA Cr. Misc. No.517 of 2009 HAIDER KHAN, SON OF LATE ABDUL HAMID KHAN, RESIDENT OF VILLAGE – KUNDUWA, P.O. – BAIRAIYA, P.S. – KESARIYA, DISTRICT – EAST CHAMPARAN, BIHAR. .......................... PETITIONER. Versus 1. THE STATE OF BIHAR 2. THE FOREST DEPARTMENT THROUGH VIJAY KUMAR SHARMA FORESTER (VANPAL), CHAKYIA – EAST CHAMPARAN. ......................... OPP. PARTIES. ........................... ----------- For the Petitioner :- Mr. Y. V. Giri, Senior Advocate. Mr. Vikas Ratan Bharti, Advocate. For the State :- Mr. Damodar Prasad Tiwary, A.P.P. 05/ 18.01.2011 Heard. This is a petition against the order dated 10.02.2008/12.02.2008 passed by the C.J.M. Motihari in Official Complaint No. 360 of 2007 by which the process has been issued against the petitioner along with the other accused after taking cognizance for an offence under Sections 9, 50, 51, 51A, 52 and 55 of the Wild Life (Protection) Act, 1972 and it has been ordered to issue non-bailable warrant of arrest against the accused persons. The prosecution case as alleged in the complaint filed by O.P. No. 2, that a male blue bull (Nil Gai) has been killed by six accused persons and on the said complaint cognizance taken under proviso to Section 2 200 of the Cr.P.C the process has been issued against the accused persons named in the complaint taking it at official complaint. Learned counsel for the petitioner submits that prior to institution of this fardbeyan an FIR was lodged by the Chaukidar with regard to the same occurrence for offence under Section 51 of the Wife Life (Protection) Act, 1972 as well as Section 429/34 of the Indian Penal Code for the killing of the said male blue bull (Nil Gai) in which the six persons were also named in the FIR on the basis of the allegation as Kesariya P.S. Case No. 120 of 2007 dated 05.09.2007 and hence it is contended that with regard to the same occurrence an FIR has been lodged and with regard to the same occurrence a complaint has also been filed and hence contended that the impugned order be quashed in terms of Section 210 of the Cr.P.C. However, it is pertinent to quote Section 210 of the Cr.P.C which is as follows :- “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 3 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.” Hence, if a police investigation is going on with regard to an occurrence and a complaint is also simultaneously filed then the Magistrate is not required to proceed with the case but is required to call for a report from the police officer conducting the investigation and after getting the report only the Magistrate is required to proceed with such inquiry. However, having regard to the fact and circumstance that the complaint has been filed with regard to an allegation for which an FIR has also been lodged and during the investigation the police has submitted a charge- sheet with regard to the two of the accused persons out of the six mentions in the F.I.R and the investigation against rest of the four accused including this petitioner is still pending and the case is covered with regard to Section 210 (2) of the Cr.P.C. However, having regard to the fact that the 4 investigation against the petitioner is going on the Magistrate is required to stay the proceeding and call for a report from the police officer conducting the investigation as 210 (2) of the Cr.P.C. provides that if a report is made by the investigation 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. However, Section 210 (3) provides that 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 and hence under the facts and circumstances of the case since a police case is with regard to the same occurrence is already lodged and on investigation charge-sheet though submitted against some of the accused and the investigation against this petition is pending and hence the Magistrate is required to call for a report from the police 5 officer with regard to the investigation of Kesariya P.S. Case No. 120 of 2007 dated 05.09.2007 and only proceed to. Hence, under the fact and circumstance the lower court is directed to proceed under Section 210 (2) of the Cr.P.C. to call for a report about status of Kesariya P.S. Case No. 120 of 2007. The proceeding in the complaint case is hereby stayed till the receipt of the information/report about the submission of the charge- sheet in Kesariya P.S. Case No. 120 of 2007. However, on receipt of the report of Kesariya P.S. Case No. 120 of 2007, the stay shall become inoperatative and court shall proceed with enquiry and trial of both complaint case and police case in accordance with law in terms of Section 210 (C) of the Cr.P.C. In the terms, the petition is disposed off. Kundan (Gopal Prasad, J.)