RES SUB JUDICE, RES JUDICATA AND CONSOLIDATION OF SUITS

 

Res sub judice, Res judicata and consolidation of SUITS

 

The principles of contesting civil cases are comprehensive and there are innumerable lateral branches that one has to deal with in the process of filing of civil cases till its culmination by way of a judgment and decree. Any dispute shall entail objection to that and therefore when a suit is filed, opposition is filed by way of written statement- both on facts and law. In the written statement, preliminary objections as regards the maintainability of the suit is raised apart from the revert on merit. The suit preferred shall have to narrate facts and material facts. It should vividly illustrate cause of action, valuation, jurisdiction and valuation of suits including the payment of court fee. If court is satisfied on the bare essentials and summons are issued to the defendants or respondents as the case may be, the defendant/respondent joins the proceedings, thereafter. Another vital fact in the context may be if there is pendency of similar cases with same or similar parties or similar lis. There may also be instances, where judgment and decree is already passed by a court of first instance and the subsequent suit is instituted by a party to the earlier suit. Whether, any such subsequent suit or case could be instituted and if so, what are the legal parameter stipulated in this regard.

It is therefore apt to discuss and deliberate the principles of Res sub judice, Res judicata and consolidation of suits/cases.   

                                  RES SUB JUDICE

The term res sub judice which in Latin means “Under Judgment”. The principle of Res Judice is contained in Section 10 of Code of Civil Procedure. In essence, it implies that that a matter is being considered by a court or judge. As per the principles of when any issue is pending in a Court of law for adjudication between the same party or same set of parties, any other court is barred from trying that issue so long during the pendency of earlier suit. In such an eventuality the proceedings in subsequent suit is liable to be stayed by the court.

Section 10 CPC

The recital of the aforesaid section is as under::

 

“No Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other Court in India having jurisdiction to grant the relief claimed, or in any Court beyond the limits of India established or continued by the Central Government and having like jurisdiction or before the Supreme court.

The pre-requisites to the applicability of Section 10

(i)          Relates to pending suits’

(ii)        Final decision in both the suits are not rendered;

(iii)       Subject matter of both the suit is identical;

(iv)       It is referable to a suit instituted in civil courts;

(v)         This is a rule of procedure and if a decree is passed in contravention, the same shall not be a nullity;

(vi)       If a subsequently instituted suit can be decided on law points without recording evidence, then it is open to the Court to decide the same with a view to nip in bud the issues which may have been raised to delay the proceedings or for other collateral/oblique reasons. .

The very reason of section 10 of the CPC is to avoid multiplicity of proceedings and also to avoid the prospect of two conflicting decisions in the same matter by different courts. With a view to meet such eventualities it is envisaged that the courts in apt cases may pass an order of consolidation of such suits. A well known case in this regard for reference is a judgment rendered by Rajasthan High Court in a matter captioned as Anurag and Co. and Anr. vs. Additional District Judge and Others AIR 2006 Raj 119.

RES JUDICATA

Similarly, ‘Res judicata’ is a Latin maxim that implies that the ‘matter has already been decided. It thus follows that when a matter stands finally decided by way of a final judgment between the same party and on similar facts. We also know that appeal is a continuation of the main case and therefore, when the appeal was preferred and decided then the principles of res Judicata shall apply. In case no appeal is preferred, then too the principles of Res Judicata shall apply. The doctrine of Res Judicata operate as an explicit embargo to a proceeding on the same grounds and between same parties when the matter in issue stands duly adjudicated by courts of law.

The provision of Res Judicata is contained in section 11 of Code of Civil Procedure.

Section 11: Res Judicata:

No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.

Res Judicata	Estoppel
It debars a court from exercising its jurisdiction to determine the lis, if it has attained finality between the parties	The doctrine is invoked against a party, if such an issue is decided against him and thus he would be pr3ecluded from raising it in any subsequent or latter proceedings

                         

CONSOLIDATION OF SUITS

That the hon’ble Supreme Court in a judgment reported as Chitivalasa Jute Mills Vs jaypee Rewa Cement Ltd AIR 2004 SC 1687  it is held has held that suits between the same parties and arising out of common cause of action should be consolidated in order to save the parties from the possibility of two courts recording inconsistent or contradictory findings. The very object of this is to prevent prospect of any conflicting decrees and/or to avoid multiplicity of proceedings and unnecessary delay that may be caused due to such ongoing proceedings. Though, the Code of Civil Procedure does not specifically prescribe any stipulation as regards consolidation, yet, the principles has emerged as a procedure under the inherent power of courts under Section 151 of Code of Civil Procedure. The court as a matter of procedure has adopted the route of consolidation of cases, if two or more suits or cases either completely or substantially are similar on the issues emanating for decision in two suits/cases, when parties are same or substantially the same.

The principles of Res judicata is a procedural provision and in case any jurisdictional error has lead to any decision, then principles of res judicata shall not be applicable. It is a settled proposition in law that when a decision is rendered without jurisdiction that will be a nullity and if that is so, the procedural principles like estoppels, waiver or Res Judicata shall not be applicable.

 In AIR 1953 Hyderabad 130 captioned as Nankoo Nathia v. Nagnur Parmeshwaramma and Ors the issue was of consolidation of cross suits. Para 8 of the said judgment reads as under:-

“The question that has to be considered is as to whether having regard to the nature of the suits, they could be consolidated together. We went through the plaints in both the cases. In our opinion, having regard to the nature of the sits they could be consolidated. The contention is that under Section 648, Hyderabad Civil P.C. only cross-suit could be consolidated and as these are not cross-suits, these could not be consolidated. It is true that both these suits are of the plaintiff herself and these are not cross-suits. So Section 648, Hyderabad Civil P.C. Would not be applicable. But we do not agree with the contention of the learned advocate that the Court has no inherent power to consolidate the suits of this nature which are not cross-suits. It may be pointed out that every Court whether a Civil Court or other wise, must therefore, in the absence of express provision for the purpose be deemed to possess inherent powers in its very constitution all such powers as are necessary to do the right and undo the wrong in the course of the administration of justice. Admittedly, excepting Section 648, Hyderabad Civil P.C. There is no other specific provision to that effect. In the absence of express provision the Court must be deemed to have inherent power, and in this contention it has the inherent power to determine how its proceedings should be conducted”.

One may wonder, if the section 10 of Code of Civil Procedure and the perceived inherent power for consolidation are itself mutually inconsistent. In fact, the courts are conscious of the said facts and it has been held that Section 10 CPC is not intended to take away the inherent powers of the Court to consolidate in the interest of justice in appropriate cases different suits between same parties in which the matter in issue is substantially and directly the same. In P.P Gupta Vs East Asiatic Co. 1960 Allahabad 184, Para 20 is reproduced hereunder for ready reference:-

“It has been the settled view of the High Courts all over India that a court has an inherent power to consolidate suits in appropriate cases. The very nature of the principle of consolidation implies that there is a similarity or identity of the matter in issue in different suits between the same parties which should be decided by the court once and for all. The object of consolidation is to avoid multiplicity of litigation between the same parties whenever the matter in issue is substantially and directly the same”.

The broad principles that emerges are as under:

 (i) The parties are substantially the same.

(ii) Complete or even substantial and sufficient similarity of the issues arising for decision in two suits.

(iii) Common evidence is to be led, if parties are substantially the same, if only one party is common then burden of proof of facts in issue will be on different person and no common evidence can be led.

(iv) The consolidation in the aforesaid circumstances will fulfill the object of consolidation. Any other circumstances may be relevant then also the object of consolidation will be decisive for passing appropriate order.

RES JUDICATA

&

APPLICABILITY OF ORDER 7 RULE 11 (d) of CPC

The aforesaid discussion may also lead to another aspect i.e in case the suit is found to be not maintainable owing to the principles of Res Judicata , whether the plaint is liable to be rejected under the principles of Order VII Rule 11 (d) of Code of Civil Procedure? The judgments of Supreme Court have already analysed this aspect.

 

In V. Rajeshwari v. T.C. Saravanabava (2004) 1 SCC 551   the Supreme Court was pleased to  discuss the plea of res judicata and the particulars that would be required to prove the plea. The Supreme Court held that it is necessary to refer to the copies of the pleadings, issues and the judgment of the ‘former suit’ while adjudicating on the plea of res judicata:

“11. The rule of res judicata does not strike at the root of the jurisdiction of the court trying the subsequent suit. It is a rule of estoppel by judgment based on the public policy that there should be a finality to litigation and no one should be vexed twice for the same cause.

 

13. Not only the plea has to be taken, it has to be substantiated by producing the copies of the pleadings, issues and judgment in the previous case. Maybe, in a given case only copy of judgment in previous suit is filed in proof of plea of res judicata and the judgment contains exhaustive or in requisite details the statement of pleadings and the issues which may be taken as enough proof. But as pointed out in Syed Mohd. Salie Labbai v. Mohd. Hanifa [(1976) 4 SCC 780] the basic method to decide the question of res judicata is first to determine the case of the parties as put forward in their respective pleadings of their previous suit and then to find out as to what had been decided by the judgment which operates as res judicata. It is risky to speculate about the pleadings merely by a summary of recitals of the allegations made in the pleadings mentioned in the judgment. The Constitution Bench in Gurbux Singh v. Bhooralal [AIR 1964 SC 1810 : (1964) 7 SCR 831] placing on a par the plea of res judicata and the plea of estoppel under Order 2 Rule 2 of the Code of Civil Procedure, held that proof of the plaint in the previous suit which is set to create the bar, ought to be brought on record. The plea is basically founded on the identity of the cause of action in the two suits and, therefore, it is necessary for the defence which raises the bar to establish the cause of action in the previous suit. Such pleas cannot be left to be determined by mere speculation or inferring by a process of deduction what were the facts stated in the previous pleadings. Their Lordships of the Privy Council in Kali Krishna Tagore v. Secy. of State for India in Council [(1887-88) 15 IA 186 : ILR 16 Cal 173] pointed out that the plea of res judicata cannot be determined without ascertaining what were the matters in issue in the previous suit and what was heard and decided. Needless to say, these can be found out only by looking into the pleadings, the issues and the judgment in the previous suit.”

 

In Soumitra Kumar Sen v. Shyamal Kumar Sen (2018) 5 SCC 644, the Supreme Court has observed that a plaint could be rejected under Order 7 Rule 11 only if it was not maintainable on the basis of the averments contained in the plaint and more often than not, such a determination would require the production of pleadings, the issues framed and the judgment in the previous suit, to compare it with the present suit and thus, principles of Order 7 Rule 11(d) of CPC may not be applicable. The application filed under Order 7 Rule 11(d) on the ground of res judicata could not be decided merely by looking into the averments in the plaint.

In a matter captioned as Srihari Hanumandas Totala  Vs Hemant Vithal Kamat & Ors  Civil Appeal No 4665 2021, the Supreme Court has held as under:

 

(i)   To reject a plaint on the ground that the suit is barred by any law, only the averments in the plaint  will have to be referred to;

(ii) The defense made by the defendant in the suit must not be considered while deciding the merits of the application;

(ii)   To determine whether a suit is barred by res judicata, it is necessary that (i) the ‘previous suit’ is decided, (ii) the issues in the subsequent suit were directly and substantially in issue in the former suit; (iii) the former suit was between the same parties or parties through whom they claim, litigating under the same title; and (iv) that these issues were adjudicated and finally decided by a court competent to try the subsequent suit; and

(iii)        Since an adjudication of the plea of res judicata requires consideration of the pleadings, issues and decision in the ‘previous suit’, such a plea will be beyond the scope of Order 7 Rule 11 (d), where only the statements in the plaint will have to be perused.

CONCLUSION

The discussion hereinabove has been a complete reflection on principles of Res Sub Judice, Res Judicata, principles of consolidation of suits as well as applicability of Order VII Rule 11 of Code of Civil Procedure in case of plea of Res Judicata.

                          --------------------------------

                                  Anil K Khaware

Founder & Senior Associate

Societylawandjustice.com  

 

 

 

LAW ON TRANSFER OR CONSOLIDATION OF CRIMINAL CASES

 

LAW ON Transfer or consolidation of criminal cases

 

Principles of Section 407, 408, 410 and section 200 to Section 210 Cr.P.C discussed

 

The aspects of transfer of case or cases from one criminal courts to other are often necessary in the context of effective adjudication. Thus, transfer, consolidation or trial of different cases, connected with each other and pending in different courts remains the contentious issues. The Delhi High Court has settled the law as regards aforesaid vexed issues in a matter captioned as Zee News Ltd. vs State & Anr Crl. M.C 2565/2013, TR..P (Crl) 45/2014 and also in a matter captioned as Sudhir Chaudhary vs State decided vide a common judgment.

The CR No. 62/13 filed by the petitioner u/s 407 Cr.P.C was dismissed by ld Sessions Court and therefore, the petition u/s 407 read  with Section 482 Cr.P.C., was preferred by the petitioner  and other petitioner before the high court. The prayer was to the effect that cases pending in different courts be assigned to one and the same court.

A  complaint under Section 200 Cr.P.C was preferred against  accused persons – including the petitioner alleging commission of offences under Section 500, 501 and 506 IPC read with Section 34/120 B of Indian Penal Code, which was initially registered as Complaint Case. While the said complaint was still at the stage of recording the pre-summoning evidence in the Court of ld Metropolitan Magistrate, an application was filed by the petitioner under Section 210 Cr.P.C on the ground that in respect of the same allegations - which is the subject matter of the said complaint case, FIR No. 240/2012, P.S. Crime Branch was already pending investigation. The petitioner claimed that the subject matter of both the cases viz. the complaint case and the FIR are the same. The said application was not taken up for consideration by the learned Metropolitan Magistrate and the recording of pre-summoning evidence continued. The application for stay under Section 210 Cr.P.C was dismissed by the learned Metropolitan Magistrate on the ground that the said application was premature, as the accused in the complaint case had not even been summoned, and thus no right to be heard could have been claimed even on an application under Section 210 Cr.P.C by the proposed accused. Reliance was placed on Nagawwa v. Veeranna & Ors., AIR 1976 SC 1947. The learned ASJ in Revision had relied on Chandra Deo v. Prokash Chandra, 1963 (2) Cri.L.J. 397, wherein the Supreme Court has held that an accused person does not come into the picture till he is summoned, i.e. till process is issued. The accused, however, may remain present only in the proceedings, only, to remain informed of the progress of the case. The Magistrate cannot put questions to the witnesses, who appear at the pre-summoning stage as defence for accused is not contemplated at that stage. In a matter reported as Pal v. State of U.P., (2010) 10 SCC 123, the Supreme Court has observed that Section 210 Cr.P.C may have to beset with a situation where, having taken cognizance of an offence in respect of an offence in a complaint case, and a separate police investigation is also being carried out against an accused.

Interestingly, in Rajat Mittal Vs State & Anr 94(2001) DLT 162, Delhi High Court has held that complaint u/s 138 of Negotiable Instruments Act and F.I.R emanating from same issues can be clubbed together.

Another petitioner Sudhir Chaudhary (Supra) had filed an application under Section 410 Cr.P.C. before the learned Chief Metropolitan Magistrate for withdrawing, transferring, clubbing and consolidating together both the cases, viz. Complaint case and another F.I.R case. The petitioner sought that the two cases be assigned to one and the same court for Trial and adjudication. The application was dismissed by the learned Chief Metropolitan Magistrate. The learned Chief Metropolitan Magistrate essentially held that the complaint case was still at the initial stage in as much, as, the accused had still not been summoned. Similarly, in the FIR case, further investigation was ordered and cognizance had not yet been taken by the learned Magistrate. It was still not clear which of the accused would be summoned, and for which offence and, eventually, who would face the trial. Thus, it was held that it would be premature at this stage to reach the conclusion as to the actual accused and offences alleged. Hence, it was premature to conclude that the offences in the complaint case and the FIR case arose out of the same transaction or not. Reliance was placed on M/s Alfa Graphics v. Arjun Kohli, Cr.M.C. No.4259/2006, in support of his conclusions.

Facing the above situation, a transfer petition, was preferred under Section 408 Cr.P.C before the learned District and Sessions Judge for the same purpose. This petition was also dismissed as premature. Though, liberty was granted to the petitioner to move the same at the appropriate stage.

The aggrieved parties were thus before the hon’ble Delhi High Court. As the parties and the issues in the two petitions as above are substantially the same, hence, the petitions were heard together and both petitions are disposed of by a common judgment. The discussion by the hon’ble high court while rendering judgment shall somewhat settle the dust.

SECTION 200 & 202 Cr.P.C ANALYSED

 

The Scheme envisaged by Section 200 Cr.P.C. read with Section 202(1) and 202 (2) Cr.P.C. appears to be that when a private complaint i.e. a complaint case is laid before the Magistrate, he may take cognizance of the same and if he does so, the Magistrate would take the evidence of the complainant and the witnesses present. After recording the statement of the complainant and his witnesses on oath, he may either straightway issue process under Section 204 Cr.P.C. or, he may postpone the issue of process against the accused and inquire into the case himself, or direct an investigation to be made by police officer, or by such other person as he deems fit for the purpose of deciding, whether or not, there is sufficient ground for proceeding. The act of the Magistrate of his examining the complainant and the witnesses on oath would initiate and constitute an, 'inquiry'.

The Supreme Court in Nirmaljit Singh Hoon v. State of West Bengal, (1973) 3 SCC 753 has analyzed the scheme provided for in the Cr.P.C. in relation to the manner in which a Magistrate would take cognizance of a private complaint, or a police report, or on information otherwise received and the manner in which he would thereafter proceed with the matter. The Supreme Court in paragraph 22 of this decision, inter alia, observed as follows:

"22. Under Section 190 of the Code of Criminal Procedure, a Magistrate can take cognizance of an offence, either on receiving a complaint or on a police report or on information otherwise received. Where a complaint is presented before him, he can under Section 200 take cognizance of the offence made out therein and has then to examine the complaint and the witnesses. The object of such examination is to ascertain whether there is a prima facie case against the person accused of the offence in the complaint, and to prevent the issue of process on a complaint which is either false or vexatious or intended only to harass such a person. Such examination is provided therefore to find out whether there is or not sufficient ground for proceeding. Under Section 202, a Magistrate, on receipt of a complaint, may  postpone the issue of process and either inquire into the case himself or direct an inquiry to be made by a Magistrate subordinate to him or by a police officer for ascertaining its truth or falsehood. Under Section 203, he may dismiss the complaint; if, after taking the statement of the complainant and his witnesses and the result of the investigation, if any, under Section 202, there is in his judgment "no sufficient ground for proceeding". The words "sufficient ground" used also in Section 209 have been construed to mean the satisfaction that a prima facie case is made out against the person accused by the evidence of witnesses entitled to a reasonable degree of credit, and not sufficient ground for the purpose of conviction. (See R.C. Ruia v. State of Bombay [AIR 1958 SC 97 : 1958 SCR 618 : 1958 SCJ 266] .) In Vadilal Panchal v. Ghadigaonker [AIR 1960 SC 1113 : (1961) 1 SCR 1 : (1961) 2 SCJ 39 : 1960 Cri LJ 1499] this Court considered the scheme of Sections 200 to 203 and held that the inquiry envisaged there is for ascertaining the truth or falsehood of the complaint, that is, for ascertaining whether there is evidence in support of the complaint so as to justify the issue of process. The section does not say that a regular trial of adjudging truth or otherwise of the person complained against should take place at that stage, for, such a person can be called upon to answer the accusation made against him only when a process has been issued and he is on trial. Section 203 consists of two parts. The first part lays down the materials which the Magistrate must consider, and the second part says that if after considering those materials there is in his judgment no sufficient ground for proceeding, he may dismiss the complaint."

 

Investigation, Inquiry, trial and other proceedings

 

An "inquiry" is different from a "trial" and it is conducted by the Magistrate or Court (and not by the police or any other authority legally entrusted with investigation). Sections 200, 202, 203 and 204 of Cr.P.C are relevant in the context. The inquiry, in a F.I.R case shall commences after the charge-sheet i.e. a final report under Section 173 Cr.P.C. is filed. The four phrases "investigation", "inquiry", "trial" and "other proceedings" have been used distinctively in various Sections of Cr.P.C such as Sections 91 & 267 Cr.P.C., and all have different and distinct meanings. Plain reading of Section 210 Cr.P.C makes it clear that it can be invoked only during "inquiry" or "trial". The recording of pre-summoning evidence of the complainant and its witnesses under Section 200 Cr.P.C is not "inquiry" as contemplated under Section 210 (1) Cr.P.C. In a matter reported as Harshad Mehta v. CBI, 1993 JCC 118 it is held that the recording of pre-summoning evidence of the complainant and his witness under Section 200 Cr.P.C. is not an "inquiry".

In nutshell, the legal position is that an inquiry under Section 202 is not in the nature of a trial for there can be in law only one trial in respect of any offence and that trial can commence only after process is issued against the accused as prior to this stage, said proceedings are not strictly proceedings between the complainant and the accused. A person against whom a complaint is filed does not become an accused, until Court decides to issue process against him. Even if he participates in the proceedings under Section 202 he does so, not as an accused but as a member of the public. The object of the inquiry under Section 202 is the ascertainment of the fact, whether the complaint has any valid foundation calling for the issue of process to the person complained against or whether it is a baseless one on which no action need be taken. The section does not require any adjudication to be made about the guilt or otherwise of the person against whom the complaint is filed. Strictly speaking such a person cannot even be legally called to participate in the proceedings under Section 202."

At any rate, at the stage of Sections 202 or Sections 204 of the Cr.PC, as the accused shall have no locus standi and the Magistrate had absolutely no jurisdiction to go into any materials or evidence which may be produced by the accused, who could be present only to watch the proceedings and not to participate in them. Indeed if the documents or the evidence produced by the accused is allowed to be taken by the Magistrate then an inquiry under Sections 202 would have to be converted into a full-dress trial, defeating the very object for which this section has been engrafted.

The conditions for clubbing together the two cases - One based on private complaint and the other on police report shall be as under:

(a)     there must be a case instituted otherwise than on police report pending inquiry or trial;

(b)     there must be a report made by investigation police officer under section 173, Cr.P.C. and

(c) the Magistrate on such report has taken cognizance of any offence against any person who is an accused in the complaint case."

If the aforesaid objective of Section 210 Cr.P.C. is kept in view, it cannot be said that a prospective accused in a complaint case is precluded even from bringing to the notice of the Magistrate dealing with the complaint case, the relevant information about the progress of an investigation in a police case in relation to the offence, which is the subject matter of inquiry or trial before the Magistrate dealing with a complaint case. By doing so, the prospective accused cannot be said to be interfering in the "inquiry" underway under Section 200 read with Section 202 Cr.P.C. before the Magistrate dealing with the complaint case. A prospective accused is certainly interested in ensuring that his conduct is not called in question in two separate proceedings, namely, in a private complaint case as also in a police case. A prospective accused, in a complaint case, is entitled to take steps so as to avoid the anomalies arising from taking cognizance of the same offence more than once.

It would thus be clear that the scope of the inquiry under Sections 202 of the Code of Criminal Procedure is extremely limited-limited only to the ascertainment of the truth or falsehood, of the allegations made in the complaint:

(i)          on the materials placed by the complaint before the Court;

(ii)        for the limited purpose of finding out whether a prima facie case for issue of process has been made out; and

(iii)       for deciding the question purely from the point of view of the complainant without at all adverting to any defence that the accused may have.

In fact, it is well settled that in proceedings under Sections 202 the accused has got absolutely no locus standi and is not entitled to be heard on the question whether the process should be issued against him or not. At any rate, at the stage of Sections 202 or Sections 204 of the Cr.PC as the accused had no locus standi the Magistrate had absolutely no jurisdiction to go into any materials or evidence which may be produced by the accused who could be present only to watch the proceedings and not to participate in them. Indeed if the documents or the evidence produced by the accused is allowed to be taken by the Magistrate then an inquiry under Sections 202 would have to be converted into a full-dress trial defeating the very object for which this section has been engrafted.

As is apparent, there is no conflict in the aforesaid judgments. Ratio of these judgments lays down the following--

(i)         Section 202, CrPC does not require any adjudication to be made about the guilt or otherwise of the person against whom complaint is made.

(ii)        Section 202, Cr.PC does not bar the presence of any person including a person against whom complaint has been made either in person or through Counsel or his agent.

(iii)       No person has a right to participate in the proceedings nor has the Magistrate power to allow him to do so as unless a person becomes accused after process is issued against him, his presence is like any member of public.

(iv)       No person unless summoned as accused has a right to either produce any evidence oral or documentary nor has a right to cross-examine the witness of the complainant.

(v)        Even the Magistrate has no jurisdiction to put any question to the witnesses of the complainant at the instance of such a person or a person named as accused.

(vi)       Participation of a person named as accused in the proceedings is like a member of the public and not as an accused, through legally such a person cannot be called upon to participate in the proceedings.

 

In Chandra Deo v. Prokash Chandra, 1963 (2) Cri.L.J. 397, itself observes that it is open to the prospective accused to remain present when the inquiry is underway before the Magistrate at the pre-summoning stage. He certainly has, 'no right to take part in the proceedings nor has the Magistrate any jurisdiction to permit him to do so', as observed by the Supreme Court in Chandra Deo (supra). Whatever defence the accused may have can only be inquired into at the trial. An accused has no right to intervene during the inquiry, as that would frustrate its very object.

However, when any person, be it the complainant, or the police, or the prospective accused moves an application under Section 210 Cr.P.C, can it be said that he is seeking to interfere with or participate in the "inquiry"?

The "inquiry" conducted by the Magistrate is to ascertain the truth or falsehood of the complaint, that is, for ascertaining whether there is evidence in support of the complaint so as to justify the issue of process. However, when Section 210 Cr.P.C. is invoked before the Magistrate inquiring into a complaint case, the person who lays the information before the Magistrate with regard to the pendency of an investigation by the police, 'in relation to the offence which is the subject-matter of the inquiry or trial held by him', does not seek to delve into the question as to whether, or not, 'there is no sufficient ground for proceeding with the complaint'. Thus, the person who is instrumental in making it appear to the Magistrate that an investigation is pending in relation to the offence which is pending at the stage of inquiry or trial before him, does not touch upon any aspect which the Magistrate would deal with in the course of his inquiry or trial.

Section 210 Cr.P.C. provides that when, in a complaint case, 'it is made to appear to the Magistrate................'. It does not define, specify or limit as to who, or in what manner, makes it appear to the Magistrate during the course of inquiry or trial being held by him on a complaint case, that an investigation by the police is in progress in relation to the same offence. Therefore, on a plain reading of Section 210, no embargo can be read into the right of a prospective accused to invoke Section 210 Cr.P.C. It would be rather strange that, while others may lay information relevant to attract Section 210 Cr.PC before the Magistrate, the prospective accused is barred from doing so. The only bar against the prospective accused is a bar against his delving into the merits of the complaint itself. The accused cannot, at the pre-summoning stage, try to pick holes in the complainant's case, or bring to the notice of the Magistrate his own defence. A bare reading of Section 210 Cr.P.C. shows that it has absolutely nothing to do with the merit or demerit of the case of the complainant, or the defence of the accused, and that is not an aspect which the Magistrate is required to touch upon while considering the aspect of Section 210 Cr.P.C.

The purpose of Section 210 Cr.P.C. has been commented upon by the Supreme Court in Sankaran Moitra Vs Sadhna Das 2006 (4) SCC 584  The observations made in Naresh Batra v. State & Ors., 2012 SCC OnLine P&H 10655 in relation to the judgment of the Supreme Court in Sankaran Moitra (supra), inter alia, reads as follows:

"......the Hon'ble Supreme Court has observed that this Section is intended to ensure that the private complaints do not interfere with the course of justice. It is meant to prevent harassment to the accused twice. This is also to obliviate anomalies, which might arise from taking cognizance of the same offence more than once. It is further noted that this Section can be invoked, when the following conditions are satisfied i.e. :-

(i) there must be a complaint pending for enquiry or trial.

(ii) investigation by police must be in progress in relation o same offence;

(iii) a report must have been made by the police officer under Section 173;

(iv)  Magistrate must have taken cognizance of an offence against a person who is accused in the complaint case."

 

The conditions for clubbing together the two cases - One based on private complaint and the other on police report, are:

(a) there must be a case instituted otherwise than on police report pending inquiry or trial;

(b) there must be a report made by investigation police officer under S. 173, Cr.P.C. and

(c) the Magistrate on such report has taken cognizance of any offence against any person who is an accused in the complaint case."

 

If the aforesaid objective of Section 210 Cr.P.C is kept in view, it cannot be said that a prospective accused in a complaint case is precluded even from bringing to the notice of the Magistrate dealing with the complaint case, the relevant information about the progress of an investigation in a police case in relation to the offence (which has been interpreted broadly), which is the subject matter of inquiry or trial before the Magistrate dealing with a complaint case. By doing so, the prospective accused cannot be said to be interfering in the "inquiry" underway under Section 200 read with Section 202 Cr.P.C. before the Magistrate dealing with the complaint case. A prospective accused is certainly interested in ensuring that his conduct is not called in question in two separate proceedings, namely, in a private complaint case as also in a police case. A prospective accused, in a complaint case, is entitled to take steps so as to avoid the anomalies arising from taking cognizance of the same offence more than once.

The ld Metropolitan Magistrate therefore cannot dismiss an application under Section 210 Cr.P.C, merely, on the premise that the petitioner being a prospective accused and had not been summoned, shall have no locus standi to move the application. The accused shall have locus standi, and even the stage of the proceedings before the learned Magistrate being the stage of, 'inquiry', the application under Section 210 Cr.P.C shall be maintainable by the petitioner and Learned Metropolitan can stay the proceedings in terms of Section 210(1) Cr.P.C and could call for a report on the matter from the police officer conducting the investigation in the police case arising out of FIR.

As it transpires in the Zee News (Supra), the police report filed under Section 173 Cr.P.C. in FIR No. 240/2012 was not taken cognizance of, and the learned Metropolitan Magistrate dealing with the said FIR case has directed further investigation. Further investigation is continuation of the previous investigation. (Ref: Vinay Tyagi v. Irshad Ali and Ors., (2013) 5 SCC 762). In Sunil Bharti Mittal v. CBI, (2015) 4 SCC 609, the Supreme Court, inter alia, observed that:

"48. Sine qua non for taking cognizance of the offence is the application of mind by the Magistrate and his satisfaction that the allegations, if proved, would constitute an offence. It is, therefore, imperative that on a complaint or on a police report, the Magistrate is bound to consider the question as to whether the same discloses commission of an offence and is required to form such an opinion in this respect. When he does so and decides to issue process, he shall be said to have taken cognizance."

 

Thus, when the Magistrate orders further investigation at that stage, there is no prima facie satisfaction arrived at by him that the allegations, if proved, would constitute an offence. If that were so, there would be no occasion to order further investigation.  Thus, it transpires that, as a matter of fact, cognizance of an offence has not been taken by the learned Magistrate in the police case. Consequently, the ingredients of Section 210 (2) Cr.P.C are not satisfied. That being the position, by force of Section 210 (3) Cr.P.C., the Magistrate dealing with the complaint case is obliged to proceed with the "inquiry" or "trial" in accordance with the provisions of the Code.

SECTION 407 Cr.P.C analysed

As regards Section 407 of the Code, it deals with the power of the High Court to transfer cases and appeal. Such power can be exercised on the report of the lower court or on the application of party interested or even on its own initiative.

 Section 407 (1) (a) of Cr.P.C. stipulates that if High Court is satisfied that a fair and impartial enquiry or trial cannot be had in a subordinate criminal court it can transfer the case from one court to the other. Section 407(1) (a) confers power on High Court to transfer a proceeding of enquiry also. Though Section 407(1)(b)(c) do not repeat the term enquiry and trial, the provision evidently refers to the stage of enquiry and trial and are in continuation of sequence referred to in Section 407(1)(a) Cr.P.C.

Section 407(1)(b) provides the second situation in which appeal and cases at stage of enquiry or trial can be transferred if question of law of unusual difficulty is likely to arise.

The third circumstances is provided in Section 407(1)(c), which confers power on High Court to transfer a case, if it is so required by any provisions of this court or the same will tend to the general convenience of the parties or witnesses, or if the same is required for the ends of justice.

In the present case the high court declined the argument of petitioner that clause 407 (1) (a) (b) & (c) Cr.P.C. confers power on High Court to transfer a case at stage of investigation from one Sessions Division to another Sessions Division. It is held that while a case which is pending at the stage of inquiry may be transferred under Section 407 Cr.P.C., a case which is still at the stage of investigation cannot be so transferred by resort to Section 407 Cr.P.C. In the present case, the police case arising out of FIR No. 240/2012 is still at the stage of investigation. Consequently, the petitioner cannot seek transfer of the police case under investigation to any other court, including the court dealing with the private complaint i.e. the complaint case. If the petitioner cannot seek a transfer of the police case which is under investigation, he cannot achieve the same objective by seeking transfer of the complaint case to the court of the learned Metropolitan Magistrate, who would have jurisdiction over the police station where the police case is registered and is under investigation.

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                                       Anil K Khaware

Founder & Senior Associate

Societylawandjustice.com