Dismissed

Anil v. State of U.P. and Anr.

Allahabad HC11 Jul 2018A482/1740/2018

Case brief

AI extract

What is this about?

The High Court dismissed an application under Section 482 Cr.P.C. challenging the issuance of a non-bailable warrant. The applicant argued that Section 210 Cr.P.C. required clubbing a complaint case alleging attempt to murder with a state case where a charge sheet was filed for other offences. The Court held the applications were barred by res judicata and that Section 210 does not apply when offe

What did the court decide?

The application under Section 482 Cr.P.C. was dismissed as it lacked merit, was barred by previous decisions, and the legal provision invoked did not apply to the facts.

Anil Vs State of U.P. and Anr. — Civil Procedure and Limitation | Allahabad HC (2018)

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A.F.R.

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Court No. - 49 Case :- APPLICATION U/S 482 No. - 1740 of 2018 Applicant :- Anil Opposite Party :- State Of U.P. And Anr Counsel for Applicant :- Mr Gaurav Kakkar Counsel for Opposite Party :- G.A.,Arvind Agarwal,Arvind Agrawal

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Hon'ble Saumitra Dayal Singh,J.

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Heard Sri Gaurav Kakkar, learned counsel for the applicant, Sri Arvind Agarwal, learned counsel for the opposite party no.2 and Sri Nagendra Kumar Srivastava, learned AGA for the State.

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The present application has been filed by the accused against the order dated 23.12.2017 passed by the Addl. Chief Judicial Magistrate, Court No.3, Mathura in proceeding of State Case No. 2407 of 2017, arising out of Case Crime No. 223A of 2017, under Sections- 147, 148, 149, 323, 307, 427, 504, 506 IPC, Police Station Refinery, District Mathura. By that order, the application filed by the applicant under Section 210 Cr.P.C. has been rejected.

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Briefly, the facts giving rise to the present application are that on 16.08.2013 an FIR had been lodged by the applicant against the opposite party no.2 alleging commission of offence under Sections 147, 148, 149, 323, 307, 384, 506, 452 IPC. It was registered as Case Crime No. 223 of 2013, Police Station Refinery, District Mathura. On the same date a cross case came to be registered against the applicant under Section 395, 397, 364 IPC in Case Crime No. 223 A of 2013. Subsequently section 307 I.P.C. was also introduced. It is also on record that the applicant was enlarged on bail during the course of investigation, for the offence alleged under Section 307 IPC.

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Subsequently, on 26.12.2014 , a charge sheet was submitted

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against the applicant in Case Crime No. 223A of 2013 under Section 147, 148, 323, 427, 504, 506 IPC. However, the applicant was not charged for offence alleged under Section 307 IPC.

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In such circumstance, the opposite party no.2 instituted a complaint case No. 549A of 2015 with respect to the same incident, alleging commission of offence under Section 307 IPC. In that complaint case, the applicant was summoned under Sections 307 and 120B IPC. The co-accused Karinda Singh, Mahesh, Om Prakash, Sunil and Devo were summoned under Section 364 IPC.

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The applicant challenged the summoning order by means of Criminal Revision No. 70 of 2016 filed before the Additional Sessions Judge, Mathura. It came to be decided by the learned Addl. Sessions Judge Court No.4, Mathura by his order dated 09.05.2016. From the memo of revision and the order passed thereon, it appears, at that stage itself, the applicant had raised an objection that he had been wrongly summoned in the complaint case since the state case had already been registered against him wherein he had been summoned. The Court of Revision negated his objection by order dated 09.05.2016. In paragraph 9 of that order it was clearly observed, the offence under Section 307 and 120B IPC are different from the offence under Sections, 147, 148, 323, 427, 504, 506 IPC with respect to which the applicant had been summoned in the state case.

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The applicant challenged the aforesaid order passed by the revision court in application U/s 482 Cr.P.C. No. 17161 of 2016. The court negated the challenge raised by the applicant and disposed of the application with the following observations:

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“However, it is provided that in case the applicants appear and surrender before the court below within 30 days from today and apply for bail, their prayer

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for bail shall be considered and decided in view of the settled law laid by this Court in the case of Amrawati and another Vs. State of U.P. reported in 2004 (57) ALR 290 as well as judgement passed by Hon'ble Apex Court reported in 2009 (3) ADJ 322 (SC) Lal Kamlendra Pratap Singh Vs. State of U.P. For a period of 30 days from today or till the disposal of the application for grant of bail whichever is earlier, no coercive action shall be taken against the applicants.

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However, in case, the applicants do not appear before the Court below within the aforesaid period, coercive action shall be taken against them.

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It is made clear that no further time shall be granted to the applicants to appear and surrender before the court concerned.

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With the aforesaid directions, this application is finally disposed of.”

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The applicant then filed an application under Section 210 Cr.P.C. in the Complaint Case No. 549 of 2015, under Section 210 Cr.P.C. again raising an objection that the applicant could not have been summoned as the entire transaction was the same with respect to which a charge sheet has already been submitted by the police. Such application was filed on 29.06.2016. It was rejected by the Judicial Magistrate, Mathura on that date itself. The applicant challenged the aforesaid order in Criminal Revision No. 301 of 2016 again filed before the learned Sessions Judge. Admittedly, the same was also rejected. No further challenge was raised by the applicant to that order.

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It has been submitted by learned counsel for the applicant since the aforesaid application dated 29.06.2016 was filed on a wrong legal advice, the applicant again filed an application under Section 210 Cr.P.C. raising the same objection as had been raised in his earlier application dated 29.06.2016. However, such second application was filed in the state case proceeding on the premise, since the learned Magistrate had already taken cognizance on the

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charge sheet submitted by the police in the state case, he had the power to stay the proceeding in the complaint case. The applicant also applied for stay of the proceeding in the complaint case. That application was rejected on 28.09.2017. The applicant then filed an application U/s 482 Cr.P.C. No. 36916 of 2017, which was disposed of vide order dated 09.11.2017, quoted below:

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“The present application under Section 482 Cr.P.C. has been filed by the applicant with the prayer to quash / set-aside the order dated 28.9.2017 passed by the Additional Chief Judicial Magistrate-III, Mathura in complaint case no. 1589 of 2017 under Sections 307, 120-B IPC, Police Station, Refinery, District - Mathura. Further prayer has been made to stay the further proceedings of the aforesaid case.

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Heard learned counsel for the applicant and the learned AGA appearing for the State.

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It is submitted by the learned counsel for the applicant that for the same set of facts an F.I.R was lodged against the applicant, matter was investigated and thereafter charge-sheet was filed. The applicant is participating in the proceeding, he obtained bail and is facing trial. Present complaint has also been filed on the basis of same set of facts. Summoning order has been passed on the basis of evidence recorded in support of the complaint. While passing the summoning order, the Magistrate concerned did not consider the fact that charge-sheet has been filed for the same incident, illegally summoned the applicant. The impugned order suffers from illegality and infirmity. It is further submitted that an application under Section 210 CrPC has been filed by the applicant and aforesaid facts were brought to the knowledge of the Court but instead of staying the proceeding of complaint case, non-bailable warrant has been issued against the applicant.

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On the other hand, learned AGA has submitted that applicant has been summoned on the basis of the statements recorded under Sections 200 Cr.P.C. and 202 Cr.P.C.. The impugned order does not suffer from any illegality or infirmity.

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In this matter, charge-sheet is said to have been filed

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for the same incident. Applicant has been summoned on the basis of the aforesaid complaint as well as the statements. There is specific provision under Section 210 CrPC to deal with such a situation. The legal position is that if a complaint is initiated in the matter and police investigation is also being made or charge-sheet has been filed, the Magistrate concerned shall stay the proceedings of the complaint case till the submission of the police report or club both the cases.

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In view of the above, the Court below is directed to decide the application under Section 210 CrPC pending before it within a period of one month from today by passing an appropriate order taking recourse of the provisions of Section 210 Cr.P.C.

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It is further directed that if the F.I.R. and complaint both relate to same offence and are covered under the provisions of Section 210 Cr.P.C., the nonbailable warrant issued against the applicant shall be kept in abeyance till the disposal of the application under section 210 Cr.P.C.

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With the aforesaid observations, the Application under section 482 Cr.P.C. stands disposed.” (emphasis supplied)

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Thereafter, by the impugned order dated 23.12.2017 the learned Addl. Chief Judicial Magistrate, Court No. 3, Mathura has rejected the second application filed under Section 210 Cr.P.C. in Criminal Case No. 2427 of 2017 (state case) and have issued non bailable warrant against the applicant.

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Learned counsel for the applicant has vehemently urged that the learned Magistrate has completely erred in rejecting the application filed by the applicant. Relying on Section 210 Cr.P.C., it has been stated - undisputedly the fact that the allegations made in the prosecution both in the state case as also in the complaint case is one of the same. Since admittedly the charge sheet in the state case had been submitted earlier, on 26.12.2014, and cognizance had also been taken earlier on

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27.01.2015, the only course open in law was for the complaint case proceedings to be tried together with the state case and those proceedings should not have been allowed to be continued independently. Strong reliance has been placed on the decision of the Kerala High Court in the case of Joseph Vs. Joseph reported in 1982 Cri.L.J. 595 wherein section 210 Cr.P.C. has been interpreted and it has been held as below:

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“In construing S. 210(1) the word 'offence' cannot be given the restricted meaning. There, it is used to denote the occurrence, the incident or the event. This is clear from the words which follow viz., 'which is the subject matter of the enquiry'. But the same meaning cannot be given to the word 'offence' used in subsec. (2). There, it is used in the restricted sense of a violation of a law. Cognizance can be taken only of a violation of law. So, for clubbing the two cases for trial it is enough that cognizance is taken by the Magistrate of any offence against any accused in the complaint case on the report of the police who investigated the occurrence which led to the complaint case. If, on the other hand, it is insisted that all the offences taken cognizance of in the complaint case must be there in the case registered on the police report that will only defeat the very purpose of section 210 itself. It is to prevent private complainants from interfering with the course of justice that section 210 is incorporated in the code.”

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It is thus submitted that for the purposes of clubbing criminal complaint case with the State case, it is not necessary that all offence alleged in the complaint case must be the same as may have been alleged in the State case.

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Further reliance has been placed on the decision of the Andhra Pradesh High Court in Namathoti Sankaramma Vs. State of A.P. and others reported in 2000 CRI. L.J. 4831 that Court had also interpreted the provision of Section 210 Cr.P.C. After relying on the

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decision of the Kerala High Court in the case of Joseph Vs. Joseph (supra) that Court held as below:-

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"21. Section 210(3) Cr.P.C., would apply in two situations (i) Where the police report does not relate to 'any' accused in the complaint case, and (ii) if the Magistrate does not take cognizance of any offence on the police report at all. The word 'any' with reference to the accused and the offence in Section 210(3) and for that matter in Sub-section (2) of Section 210 of Cr.P.C. would only mean 'one or more' and not 'all'. The Judgment of the Orissa High Court supra proceeds on the basis that Section 210(3) of Cr.P.C., will be applicable where all the offences and all the accused are not common in both the cases."

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Learned counsel for the opposite party no.2 on the other submits that the above position of law as explained by the Kerala High Court and the Andhra Pradesh High Court is not the correct position in the law and he further submits that in any case this Court has made a contrary interpretation in Kalyan and others Vs. State of U.P. and others reported in 1990 Cr.L.J. 1658; Ramji Shukla Vs. State of U.P. reported in 2009 Cr.L.J. 3495. It is binding. Also, reliance has been placed on a decision of the Patna High Court in the cases of Ramji Pandey Vs. State of Bihar in Criminal Misc. No. 24046 of 2001 decided on 6.8.2001.

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In Kalyan and others Vs. State of U.P. and others (supra) the learned Single Judge of this Court has held as below:-

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"5. The right of a complainant to agitate the matter through a complaint cannot be taken away by filing a charge sheet by the investigating officer under some different Sections. It follows, therefore, that the right of the Magistrate to summon the accused under some other Sections than under which the accused have been charge sheeted is fully secured by the provisions of Code of Criminal Procedure. This power of the Magistrate is a salutary power and the purpose behind it appears

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to be that no injustice is done at the investigation level. Therefore, the summoning order dated 7.4.1989 which was based upon the material produced by the complainant does not call for any interference. Similarly, the revisional order also is quite in accord with law and has to be upheld. This writ petition, therefore, must fail in so far as quashing of these two orders are concerned."

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Then, in the case of Ramji Pandey Vs. State of Bihar (supra) para 7 and 8 has held as below:-

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"7. Sub-section (3), which would in fact control, the case where the accused and offences are different, is the material provision. According to Sub-section (3) when the police report does not relate to a particular accused or particular offence then the Magistrate shall proceed with the inquiry or trail. Sub-section (3) of Section 210 would make it crystal clear that if the accused persons are different and the offences are different in relation to which the Court has not taken cognizance on the police report then the Magistrate would be justified in taking cognizance against such accused or in relation to that particular offence for which the Court had not taken cognizance on the police report.

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8. The argument of the learned counsel for the applicants that once the Magistrate has taken cognizance of a particular offence then the Court cannot take cognizance in relation to a higher offence, if accepted, it would lead to judicial anarchism and would give rise to police atrocities. In a given case of Section 307, I.P.C. (attempt to murder) the police may register under Section 324, I.P.C. in relation to a particular accused then even on a complaint with the positive evidence against same accused, the Court would not be able to take cognizance for a higher/larger offence. Sub-section 93) in fact is a complete answer to the arguments raised by the learned Counsel for the applicant. One should not confuse between 'a wrong act' and 'an offence'. A wrong or an act becomes an offence if the said act is made punishable under some statutory provision."

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Besides the above, learned counsel for the opposite party

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no.2 submits that it is no longer open to the applicant to raise the objection as have been raised inasmuch as the same objection had earlier been raised by him on two occasions. First, by challenging the summoning order, the applicant had raised an objection that he could not have been summoned in the complaint case for any offence in view of the fact that the cognizance had already been taken on the charge sheet submitted in the State case and that he was facing trial therein. Second, he had raised this objection in an application filed under Section 210 Cr.P.C. in the complaint case. On both occasions, the objection so raised by the applicant had been rejected. Against the summoning order, the matter had reached this Court but no interference was made and the 482 Cr.P.C. application filed by the applicant arising from the summoning order was practically dismissed on merits.

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Against the rejection of the application filed under Section 210 Cr.P.C. in the Complaint case, the applicant's revision appears to have been rejected. However, copy of such order has not been annexed with the present application. In any case, admittedly the applicant did not carry the matter further to this Court.

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It is then submitted that the second direction issued by this Court in the second 482 Cr.P.C. Application No. 36916 of 2017 (as has been quoted above), had been obtained by the applicant on misrepresentation. Neither the fact of the rejection of the earlier revision application had been placed before this Court nor it was informed to the Court that the earlier 482 Cr.P.C. application filed by the applicant had been rejected. In any case, it has been submitted that the direction contained in that order did not vest any right in the application.

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Last, it has also been submitted that the (second)

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application under section 210 filed in the state case was, in any case, not maintainable. Such an application could have been filed only in the Complaint case.

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Having considered the argument so advanced by learned counsel for the parties, it first appears that the objection raised by the applicant on the strength of language of Section 210 Cr.P.C. was never available to be raised at this stage. The applicant had earlier a raised specific objection in the revision filed against the summoning order in the State case and that objection had been specifically overruled. The applicant had also challenged the order of the dismissal on his revision in 482 Cr.P.C. Application No. 17161 of 2016. However, no interference is made by this Court. Thus, the issue came to rest. The applicant did not challenge the order passed by this court. It attained finality.

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It did not remain open to the applicant to raise the same issue again, in the same proceeding. Undeniably, it was open to the applicant to question the summoning order, in the complaint case, amongst others, on the basis of section 210 Cr.P.C. Such objection was raised and specifically rejected. Once that challenge failed and such decision attained finality, it no longer remained open to the applicant to again agitate that issue, by filing a separate application under section 210 Cr.P.C.

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In any case, as a fact, the applicant again raised that issue by filing a specific application under Section 210 Cr.P.C. in the complaint case proceeding. That objection was also rejected. The applicant appears to have filed a criminal revision against such rejection order dated 29.6.2016. However, at present it appears from the arguments as advanced that such revision was also dismissed on 17.3.2017. That order has also attained finality.

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Further contention raised by learned counsel for the

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applicant, that the earlier application filed under section 210 in the complaint case was misconceived and, therefore, the applicant may not be visited with the consequence of its rejection, appears to be misconceived. Even if provision of Section 210 Cr.P.C. could be invoked in the facts of this case, properly, such application could have been filed only before the learned Magistrate whose hands were sought to be stayed under Section 210 Cr.P.C. Thus, such application ought to have been filed before the learned Magistrate who had entertained the complaint case.

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The learned Magistrate before whom the State case was pending, was neither a higher court nor for the appropriate court before whom the complaint case proceedings were pending. He could not have had the occasion to examine the maintainability of the complaint case. He could not have stayed the proceedings pending before another learned Magistrate.

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The second application that had been filed by the applicant and the direction issued by this court were wholly inconsequential. In fact the order dated 9.11.2017 passed by this court, as extracted above, clearly shows that even at that stage, this court has proceeded on the assumption that the application under section 210 Cr.P.C. had been filed in the complaint case, as appears from the language of that order.

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Thus the issue did not survive for any further adjudication. In any case, the second application filed by the applicant under Section 210 Cr.P.C. before the learned Magistrate wherein the State case, was misconceived but ought to have been dismissed as not maintainable and perhaps it would have been dismissed as such but for the direction issued by this Court in the second 482 Cr.P.C. application filed by the applicant.

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Even otherwise, the language of Section 210 Cr.P.C. does

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not help the applicant. In the first place, the provision applies to a proceeding pending in a complaint case. Thus, the provisions would have to be invoked before the same Magistrate. It appears from the language of Section 210(1) Cr.P.C. that the power has to be exercised when it appears to the learned Magistrate in such case that an investigation by the police is in progress on the subject matter of inquiry or trial that may be pending before him upon a complaint case. In such a situation, that learned Magistrate shall stay the proceeding of the inquiry and trial before him and call for a report from the police official conducting the investigation. This much is plain and clear from the language of section 210(1) Cr. P.C. That sub-section clearly provides, for the provision to apply, it must be made to appear to the Magistrate before whom a case has been instituted otherwise than by way of a police report that an investigation by the police is pending. Such a Magistrate can be none other than the Magistrate hearing the complaint case. It would be absurd to hold otherwise, besides such interpretation can never arise on a plain reading of the statute.

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The suggestion made by learned counsel for the applicant that the learned Magistrate hearing the State case could have called for a report from the police officer and examine whether the proceedings in the complaint case pending before another learned Magistrate with respect to which any investigation was pending, is wholly misconceived.

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Then, Sub-section 2 of Section 210 Cr.P.C. applies to a case where the cognizance may already have been taken on a police report and a complaint case is also found registered for the same offence. In that event, by virtue of clear language of Sub-section 2 of Section 210 Cr.P.C. the state case and the complaint case are

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to be inquired into or tried together. However, in case the learned Magistrate has not taken cognizance of any offence on the police report then the complaint case shall proceed independently.

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Clearly in this case, cognizance had not been taken of any offence alleged under Section 307 IPC, in the state case. On the other hand, the opposite party no.2 had in his complaint case clearly alleged the commission of offence under Section 307 IPC. The learned Single Judge of this Court in the case of Ramji Shukla Vs. State of U.P. (supra) has clearly held, if the offence is different, then Section 210 Cr.P.C. would not apply. Earlier, decision of the learned Single Judge in the case of Kalyan and others Vs. State of U.P. and others (supra) also took the same view.

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In view of the above, categorical decisions of this Court, to which I am bound, I do not consider any further need to elaborate on the points of distinction that clearly exist in the reasoning of the aforesaid two decisions and those of the Kerala High Court in the case of Joseph Vs. Joseph (supra) and Andhra Pradesh High Court in the case of Namathoti Sankaramma Vs. State of A.P. and others (supra). In view of the binding decisions of this court, with which I agree, I am not persuaded by the view taken by the other Kerala and the Andhra Pradesh High Courts.

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In view of the above, the present application lacks merit and is accordingly dismissed .

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Order Date :- 11.7.2018 Lbm/-

Anil v. State of U.P. and Anr.

Case brief

What is this about?

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Anil v. State of U.P. and Anr.

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