IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL C-482 No. 246 of 2010 Rajesh Singh & another ` …….Applicants. Versus State of Uttarakhand & another ……Respondents. Mr. S.K. Mandal, Advocate for the applicants. Mr. Nandan Arya, learned Assistant Government Advocate for the State of Uttarakhand. Mr. D.N. Sharma, Advocate for respondent no. 2. C-482 No. 257 of 2010 Ashok Kumar Sharma & another ` …….Applicants. Versus State of Uttarakhand & another ……Respondents. Mr. S.K. Mandal, Advocate for the applicants. Mr. Nandan Arya, learned Assistant Government Advocate for the State of Uttarakhand. Mr. D.N. Sharma, Advocate for respondent no. 2. Hon’ble Sudhanshu Dhulia, J. (Oral) Heard learned counsels for the applicants as well as the respondents. Both these Criminal Misc. Applications under Section 482 Cr.P.C. have been filed for setting aside the summoning order dated 28.1.2010 passed by the Judicial Magistrate, Udham Singh Nagar in Criminal Complaint Case No. 16 of 2010 Dr. Mahendra Kumar Sharma Vs. A.K. Sharma and others under Sections 452, 504, 506 of I.P.C. Brief facts of the case are that on a given set of incident a police case was instituted against the applicants under Section 504, 506 I.P.C. at Police Station Pantnagar, District Udham Singh Nagar being F.I.R. No. 110 of 2009. Police investigation proceeded in the matter and when this investigation was already in progress, another complaint was filed against the present applicants before the Court of Judicial Magistrate, Rudrapur for the same incident which was registered as Complaint Case No. 16 of 2010. The contention of the learned counsel for the applicants is that since the police case has already been filed against the applicants, in 2 which police investigation is under process, under Section 210 (1) of Cr.P.C. the proceedings in complaint case are liable to be stayed till the investigation by the police is completed. However, the Judicial Magistrate proceeded with the matter and summoned the applicants. Hence the present C-482 applications. Section 210 of Cr.P.C. reads as under :- “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 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.” From the perusal of the aforesaid provision of law, it is clear that in a complaint case when it is brought to the notice of the Court that on a similar set of facts a police case has already been instituted in which investigation is in progress, he will not take cognizance till the police investigation in the matter is completed and the report is filed under Section 173 of Cr.P.C. The court indeed has powers subsequently to club the complaint case as well as the police case together and proceed as a single case under Section 210 (2) of Cr.P.C. However, what the Judicial Magistrate cannot do is, before the filing of the report under Section 173 Cr.P.C. he could not have proceeded with the matter in a complaint case, as it is barred under Section 210(1) Cr.P.C. Therefore, the order dated 28.1.2010 summoning the 3 applicants in Criminal Complaint Case No. 16 of 2010 is patently illegal and is liable to be set aside and is hereby set aside. It is further directed that the Judicial Magistrate, Rudrapur will not proceed in the complaint case till a report is filed by the police under Section 173 of Cr.P.C. In case, the police chooses to file a chargesheet against the applicants then the Judicial Magistrate will be at liberty to club the two cases under Section 210 (2) and proceed in the matter. With these observations, the present C-482 application is allowed. No order as to costs. (Sudhanshu Dhulia, J.) 19.8.2010 Avneet