CRM No.M-26053 OF 2010 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH *** CRM No.M-26053 OF 2010 Date of Decision: 29.11.2011 Dr. Parveen Garg ...Petitioner Versus State of Punjab and another .... Respondents CORAM: HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH Present:-Mr. Ashish Aggarwal, Advocate, for the petitioner. Mr. Amit Goyal, Asstt. Advocate General, Haryana Mr. Puneet Bassi, Advocate for respondent No.2. **** AUGUSTINE GEORGE MASIH, J. Challenge in this petition under Section 482 of the Code of Criminal Procedure (hereinafter referred to as 'Cr.P.C.) is to the order dated 13.06.2008 (Annexure P-7) passed by the Chief Judicial Magistrate, Karnal by which complaint case No.130 of 2008 dated 21.08.2001 under Sections 304, 465, 468, 471, 201 and 34 of the Indian Penal Code (hereinafter referred to as 'I.P.C.') titled as ' Ashwani Kumar Raheja Vs. Dr. Parveen Garg and others (Annexure P-3) has been clubbed with police challan case i.e. State Vs. Dr. Parveen Garg and FIR No.185 dated 10.06.2001 under Section 304-A I.P.C, Police Station Civil Lines, Karnal (Annexure P-1), on the ground that the same is in violation of the provisions of Section 210 Cr.P.C. Further challenge to the order dated 21.08.2009 (Annexure P-9 Colly.) passed by the Judicial Magistrate Ist Class, Karnal framing charges jointly in the complaint case as well as police challan case without CRM No.M-26053 OF 2010 -2- following the mandatory procedure of recording pre-charge evidence as laid down under Chapter XIX Cr.P.C. for cases instituted other than on police report and further order by which the trial Court had directed that the evidence of the prosecution be recorded jointly in the complaint case as well as police challan case. Briefly the facts of the case are that FIR No.185 dated 10.06.2001 under Section 304-A I.P.C., Police Station Civil Lines, Karnal was registered on a complaint of Narain Dass father of respondent No.2- Ashwani Kumar Raheja against the petitioner on the ground that the petitioner had operated upon his son by Laparoscopy on 08.06.2001 in Dr. Parveen Garg's Hospital, Jarnaily Colony, Karnal. Suddenly, after few hours the son of Narain Dass-complainant started having complications and he felt severe cold and he started shivering. Compounder, who was on duty, was informed and he contacted the petitioner-Dr. Parveen Garg but he did not come, instead directed administering of injunction on telephone. Compounder complied with the direction but when the condition of the son of the complainant deteriorated, petitioner was again contacted on his mobile phone to immediately come. Petitioner came after about two hours and directed that the son of the complainant be shifted to a big hospital at Delhi and was taken to Apollo Hospital, Delhi, where he was declared dead. On completion of the investigation, challan was presented on 01.08.2001 under Section 304-A IPC. Fourteen witnesses were cited. After the filing of the challan a criminal complaint was filed by respondent No.2-Ashwani Kumar Raheja against the petitioner and two others, namely, Dr. (Mrs.) Neha Garg wife of Dr. Parveen Garg and Paramjeet Singh (Compounder) on 21.08.2001 (Annexure P-3) under Sections 304, 465, 468, 471, 201 and 34 I.P.C. on the basis of the same CRM No.M-26053 OF 2010 -3- incident as was in the FIR. In this complaint in para 7 to 9 allegations were levelled against the investigating officer that he had connived with the accused and changed the offence from Section 304 to 304-A I.P.C. Allegations were also made that the statement recorded under Section 161 Cr.P.C was changed and the supplementary statement made by him was missing from the challan, which was presented in the Court. Complainant examined nine witnesses. All these witnesses were different from the one's mentioned in the challan filed by the police. On consideration and perusing the preliminary evidence led by the complainant, Chief Judicial Magistrate, Karnal vide order dated 26.07.2002 summoned the petitioner to face trial for commission of the offence punishable under Section 304-A, 201, 465 and 471 I.P.C. No case against the other two accused was found to be made out. Petitioner filed Criminal Miscellaneous No.7277-M of 2003 praying for quashing of the FIR and all consequential proceedings arising therefrom, which was dismissed by this Court vide order dated 07.05.2008. Petitioner also filed Criminal Miscellaneous No.7281-M of 2003 praying for quashing of complaint but the same was also dismissed by this Court vide order dated 07.05.2008, in view of the order passed in Criminal Miscellaneous No.7277-M of 2003. However, it was observed by the Court that the trial Court shall take into consideration the provision of Section 210 Cr.P.C. while dealing with the complaint case. It is on receipt of these orders passed by this Court that order dated 13.06.2008 was passed by the Chief Judicial Magistrate, Karnal when it was ordered that since the accused in both the police challan case and the complaint case was the same therefore, the complaint case and the police challan case were clubbed together. It was further ordered that all further proceedings shall be recorded in the said police challan case. CRM No.M-26053 OF 2010 -4- Thereafter, on 21.08.2009, charge was framed against the petitioner under Section 304-A, 201, 465 and 471 I.P.C. This order was challenged by the petitioner by preferring Criminal Revision No.3 of 2010 before the learned Additional Sessions Judge, Karnal. The case came up for hearing on 15.07.2010 when the said revision petition was withdrawn by the petitioner reserving his right to file appropriate remedy at appropriate forum. Challenge in the revision petition was made to the consolidated charges framed in both the complaint case and the police challan case. Petitioner in the present petition has stated that the revision petition was withdrawn for the reasons that the petitioner had not challenged the order dated 13.06.2008 vide which the complaint case was ordered to be clubbed with the police challan case after the withdrawal of the revision petition. The present petition was filed in this Court wherein challenge has been laid to the order dated 13.06.2008 (Annexure P-7) and all consequential proceedings arising therefrom especially the charge framed vide order dated 21.08.2009 (Annexure P-9) by the trial Court. It is the contention of the counsel for the petitioner that Section 210 Cr.P.C is not applicable to a case where a Magistrate has already taken cognizance on a police report and thereafter, the complaint is filed, as in the present case. His further contention is that in the police challan case, fourteen witnesses have been cited whereas in the complaint case, nine witnesses have been cited and all these nine witnesses are different from the fourteen witnesses in the police challan case. The complaint case is in conflict with the police challan case as in the complaint case allegations are levelled against the investigating officer and the investigating agency that connivance between the investigating officer and the accused has resulted in converting the Section 304 to Section CRM No.M-26053 OF 2010 -5- 304-A I.P.C. Further statements given under Section 161 Cr.P.C. have not been correctly recorded rather have been changed and the supplementary statements made by the witnesses have not been attached with the challan presented in Court. He submits that although the incident is one but the allegations are different and on different basis and are based on different assumptions, he therefore, prays that the two cases cannot be clubbed together and two separate trials should be held simultaneously by the same Presiding Officer in order to avoid conflict. In support of this contention, counsel for the petitioner has placed reliance on the judgment of the Hon'ble Supreme Court in the case of Harjinder Singh Vs. State of Punjab and others, AIR 1985 Supreme Court, 404, which has been followed by the Hon'ble Supreme Court in the case of Pal @ Palla Vs. State of Uttar Pradesh, 2010(4) RCR (Criminal) 511. He on this basis prays for setting aside the order dated 13.06.2008 (Annexure P-7) and all consequential proceedings arising therefrom qua the complaint case. On this basis he prays that the present petition be allowed. On the other hand, counsel for the respondent submits that the accused is the same and the incident also is the same and this Court vide its order dated 07.05.2008 passed in Criminal Miscellaneous No.7281-M of 2003 titled as Dr. Parveen Garg Vs. Ashwani Kumar (supra) had observed that the trial Court shall take into consideration the provision of Section 210 Cr.P.C while dealing with the cases the learned trial Court has accordingly proceeded to club these two cases in compliance with the order passed by this Court. It is contended that intent and purpose of Section 210 Cr.P.C is that there should not be contradictory judgments on the same incident where the accused is also the same, that mandate having been fulfilled by the order dated 13.06.2008 impugned in the CRM No.M-26053 OF 2010 -6- present petition, present petition deserved to be dismissed. In support of this contention reliance has been placed on the judgment of this Court in the case of Harbhajan Singh Vs. Gurdip Kaur, 1997(3) R.C.R. (Criminal) 345. I have heard learned counsel for the parties and gone through the records of the case. Facts are not in dispute in the present case. This Court while passing order dated 07.05.2008 in Criminal Miscellaneous No.7281-M of 2003 preferred by the petitioner for quashing the complaint while dismissing the same had observed that the trial Court shall take into consideration the provision of Section 210 Cr.P.C. while dealing with the case. There was no positive direction issued by this Court to club the police challan case and the complaint case. It was for the trial Court to consider the provision as contained under Section 210 Cr.P.C. and then keeping in view the facts and circumstances of two cases proceed to pass an appropriate order. Section 210 Cr.P.C. reads as follows:- "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 CRM No.M-26053 OF 2010 -7- 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." This section provides for the proceedings to be followed when there is a complaint case and police investigation in respect of the same offence. According to this section, when a complaint case is instituted and it comes to the notice of the Magistrate or is brought to his notice during the course of inquiry or trial that investigation by the police is in progress in relation to the offence which is subject matter of inquiry or trial held by him, he shall stay the proceedings and call for the report on the matter from the police officer conducting the investigation. If a report is made by the investigating police officer under Section 173 Cr.P.C. 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 officer as if both the cases were instituted on a police report and in case 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 in accordance with the provisions of the Cr.P.C. The purpose of this section appears to be to avoid conflicting findings and decisions arising out of the same incident in a complaint case and a police challan case. While dealing with such a situation, Hon'ble Supreme Court in the case of Harjinder Singh (supra) in para 8 held as follows:- CRM No.M-26053 OF 2010 -8- "8. In the facts and circumstances of this particular case we feel that the proper course to adopt is to direct that the two cases should be tried together by the learned Additional Sessions Judge but not consolidated i.e. The evidence should be recorded separately in both the cases one after the other except to the extent that the witnesses for the prosecution who are common to both the cases be examined in one case and their evidence be read as evidence in the other. The learned Additional Sessions Judge should after recording the evidence of the prosecution witness in one case, withhold his judgment and then proceed to record the evidence of the prosecution in the other case. Thereafter he shall proceed to simultaneously dispose of the cases by two separate judgments taking care that the judgment in one case is not based on the evidence recorded in the other case. In Kewal Krishan's case (AIR 1980 SC 1780), supra, this Court had occasion to deal with a situation as the present, where two cases exclusively triable by the Court of Session, one instituted on a police report under S. 173 of the Code and the other initiated on a criminal complaint, arose out of the same transaction. The Court observed that to obviate the risk of two Courts coming to conflicting findings, it was desirable that the two cases should be tried separately but by the same Court. The High Court was largely influenced in upholding the order of the learned Additional Sessions Judge by the fundamental right of the accused guaranteed by Art. 20(2) of the Constitution and S. 300 of the Code which provides that no person shall be prosecuted and punished for the same offence more than once. If there is no punishment for the offence as a result of the prosecution, sub-cl. (2) of Art. 20 has no application. The consitutional right guaranteed by Art. 20(2) against double jeopardy can still be reserved if the two cases are tried together but not consolidated i.e. The evidence be recorded separately in both cases and they be disposed of simultaneously. Further, the second prosecution must be for the 'same offence'. If the offences are distinct, there is no question of the rule as to double jeopardy being applicable." CRM No.M-26053 OF 2010 -9- Thereafter, Hon'ble Supreme Court while considering the scope of Section 210 Cr.P.C. in Pal @ Palla's case (supra) in paras 22, 23 and 24 held as follows:- “22. Section 210 Cr.P.C. provides the procedure to be followed when there is a complaint case and police investigation in respect of the same offence. Sub-Section (1) of Section 210 provides that when in a case instituted otherwise than on a police report, namely, a complaint case, the Magistrate is informed during the course of inquiry or trial that an investigation by the police is in progress in relation to the offence which is the subject matter of inquiry or trial held by him, the Magistrate is required to stay the proceedings of such inquiry or trial and to call for a report on the matter from the Police Officer conducting the investigation. Sub- Section (2) provides that if a report is made by the Investigating 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 a complaint case, the Magistrate shall inquire into or try the two cases together, as if both the cases had been instituted on a police report. Sub- Section (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 a police report, he shall proceed with the inquiry or trial which was stayed by him, in accordance with the provisions of the Code. 23. Although, it will appear from the above that under Section 210 Cr.P.C. the Magistrate may try the two cases arising out of a police report and a private complaint together, the same, in our view, contemplates a situation where having taken cognizance of an offence in respect of an accused in a complaint case, in a separate police investigation such a person is again made an accused, then the Magistrate may 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. That, however, is not the fact situation in the instant case, since the accused are different in the two separate proceedings and the situation has, in fact, CRM No.M-26053 OF 2010 -10- arisen where prejudice in all possibility is likely to be caused in a single trial where a person is both an accused and a witness in view of the two separate proceedings out of which the trial arises. In our view, this is a case where the decision in Harjinder Singh’s case (supra) would be more apposite. In the said case, the question of Article 20(2) of the Constitution, as well as Section 300 Cr.P.C., relating to double jeopardy was considered. A similar situation has arisen in this case where the version in the complaint case and the police report are totally different, though, arising out of the same incident. In our view, this is a case where the two trials should be held simultaneously but not as a single trial. 24. The facts of the case also warrant that the two trials should be conducted by the same Presiding Officer in order to avoid conflict of decisions. As was observed in Harjinder Singh’s case (supra) clubbing and consolidating the two cases, one on a police challan and the other on a complaint, if the prosecution versions in the two cases are materially different, contradictory and mutually exclusive, should not be consolidated but should be tried together with the evidence in the two cases being recorded separately, so that both the cases could be disposed of simultaneously." In the light of the scope of Section 210 Cr.P.C. as spelt out by the Hon'ble Supreme Court above when applied to the facts and circumstances of the present case, the impugned order dated 13.06.2008 (Annexure P-7) passed by the Chief Judicial Magistrate, Karnal, cannot be sustained. In these two cases i.e. police challan case and the complaint case although the incident is one but the allegations are different and the basis for such allegations are also different. There are fourteen witnesses in the police challan case and nine witnesses in the complaint case, who are all different. Contradictory and mutually exclusively different basis have been projected. In these facts and circumstances both these cases should not be consolidated but tried together by the same Presiding CRM No.M-26053 OF 2010 -11- Officer. Evidence in these two cases should be recorded separately so that both these cases could be disposed of simultaneously, which would avoid conflicting findings and decisions. In view of the above, the present petition is allowed. Impugned order dated 13.06.2008 (Annexure P-7) passed by the learned Chief Judicial Magistrate, Karnal is hereby set aside vide which the complaint case and the police challan case were clubbed together as also all consequential proceedings including the order dated 21.08.2009 (Annexure P-9) framing charge. As a consequence thereof, the trial Court shall proceed with the two trials from the stage at which the cases stood prior to the passing of the order dated 13.06.2008 (Annexure P-7). The police challan case and the complaint case shall be tried together by the same Presiding Officer and disposed of simultatenously. 29.11.2011 (AUGUSTINE GEORGE MASIH) adhikari JUDGE