CHUNBAD Vs. STATE OF U.P.

JUDGEMENT

(1.) Fact in short is that the District Magistrate, Banda, lodged one F.I.R. on 2.6.1991 under Sec. 3/57/70 of the U.P. Mines and Minerals Rules, 1963 and under Sec. 379/411 Indian Penal Code against the applicant and others which was duly investigated and charge sheet was submitted on 25.9.1991. From the copy of the order sheet it appears that till Aug. 1994 the matter was pending before the II Addl. Chief Judicial Magistrate, Banda for supply of copy. It has been submitted that the said District Magistrate has once again filed another complaint on 18.7.1992 on the basis of same allegations against the applicant and others which, according to the learned counsel, is not maintainable.

(2.) The learned counsel has argued that since cognizance has been taken of the offence against the applicant and others, on the same incident a second case filed by the same complainant is a bar. The learned A.G.A. has submitted that it is covered by Sec. 210/27 Criminal Procedure Code and in view of that Sec. both the cases should be tried together. Sec. 210 (2) Criminal Procedure Code envisages that if a complaint has been filed earlier to the police case and in that situation the Magistrate shall inquire into or try together the complaint case and the police case as if both the cases were instituted on a police report. The said consideration would be one after filing of the charge sheet initiated under Sec. 173 Criminal Procedure Code But the facts enunciated in the instant matter are different. In the instant case on the basis of the F.I.R. lodged by the District Magistrate, Banda, the police investigated the case and submitted a charge sheet. The learned Magistrate has also taken cognizance and after taking cognizance another complaint case was instituted by the said District Magistrate. So the point for consideration is whether after taking cognizance of an offence lodging of second case is admissible or not. I do not find that provision of Sec. 210 (2) Criminal Procedure Code is applicable in this case. It is well settled that courts are not empowered to take cognizance twice on the self same incident putting the accused in double jeopardy. So when cognizance was taken by the Magistrate on 25.9.1991 on the basis of the charge sheet filed by police no further institution of case on the self same incident is permissible or legally tenable. The learned Chief Judicial Magistrate was not possibly aware of the fact of taking cognizance earlier on the self same incident.

(3.) After considering the materials on record, I find that the complaint case filed on 18.7.1992 is not legally maintainable when cognizance on the self same incident is already taken by the Magistrate on 25.9.1991 in a case instituted by police report.