Judgment:
Prafulla C. Pant, J.
1. By means of the these petitions, moved Under Section 482 of Code of Criminal Procedure, 1973, petitioners have sought quashing of the proceedings of criminal complaint case No. 1139 of 2003, Smt. Vimla Devi Pathak v. Shri Mahesh Chandra Pathak and Ors., relating to offences punishable under Section 498A I.P.C and one punishable under section Dowry Prohibition Act 1961, pending the Court of Judicial Magistrate, Haldwani, and those of criminal case No. 486 of 2004, Smt. Vimla Pathak and Ors. petitioners v. Smt Janki Pathak and Anr. pending in said court.
2. Heard learned Counsel for the parties and perused the papers on record.
3. Brief facts of the case are that complainant Vimla Pathak got married to petitioner Mahesh Chandra Pathak on 12.03.2000. After their relations soured, the complainant lodged the first information report, which is registered as crime No. 02.02.2002, against the petitioners which was registered as crime No. 212 of 2002 relating to offences punishable under Section 498A I.P.C and one punishable under section Dowry Prohibition Act, 1961. After investigation the police submitted final report in the matter. However, meanwhile before said final report is accepted, a criminal complaint case No. 1139 of 2003 was filed by complainant Vimla Devi Pathak against her husband and other relatives (petitioners) relating to the same offences in respect of same incident before the Court of Judicial Magistrate, Haldwani.
4. Section 210 of Code of Criminal Procedure 1973 provides that when in a case instituted otherwise then on a police report it is made to appear to the Magistrate, during the course of inquiry or trial, that the investigation by the police is in progress, the Magistrate shall stay the proceedings of the trial of such complaint case. Section 210 further provides that after a report is made by an investigation officer under Section 173 to the Court against any of the accused in complaint case, the Magistrate shall try the case together treating the case instituted on police report. The same section further provides that after the police submits final report on which cognizance cannot be taken on the police report, the Magistrate shall proceed with the complaint case in accordance with the provisions of the code.
5. The learned Magistrate in the present case appears to have committed error of law by taking cognizance on both the cases separately and by proceedings against the accused in respect of same incident and crime, separately in the form of police challani case and private complaint case. Such proceedure adopted by the Magistrate is erroneous in law. After the Magistrate finds that on the report of the police there is sufficient material to take the cognizance, he can club complaint case with such police report and treat the case, as a case on police report. On the other hand if he accepts the final report submitted by the police in that case he is at liberty to proceed with the criminal complaint in accordance with law. But he cannot be allowed to start two different trials in respect of same crime against the same accused.
6. Therefore, in the circumstances, since the Magistrate has taken cognizance on the police report after the considering the protest petition, the criminal complaint No. 1139 of 2003 Smt. Vimla Devi Pathak v. Mahesh Chandra Pathak and Ors., can not proceed further and stands merged with the criminal case No. 486 of 2004. With these observations both these petitions are hereby disposed of with the direction of Judicial Magistrate to proceed with the trial of criminal case No. 486 of 2004 in the light of the observations made above.