AMA DAR Vs. STATE OF J AND K

JUDGEMENT

(1.) The two petitioners Ama Dar and Muhammad Lone accompanied by one Nabir Dar and Altaf Ahmad Malik allegedly committed theft of electric pole. While removing the pole Altaf Ahmed Malik got electrocuted. The matter was investigated by the Police. Report u/S. 173, Cr.P.C. was filed against the above three persons with indictment u/Ss. 304-A, 201, 379 and 511, RPC. The father of deceased Altaf Ahmed Malik feeling dissatisfied with the report filed protest petition/complaint u/S. 302 read with Section 34 and 201, RPC against the above three named accused persons. By now Nabir Dar has died. Only Ama Dar and Mohd. Lone the two petitioners are facing trial before CJM's Court, Handwara. The complaint case is committed to Session. However, the Session Judge on consideration of the matter, came to the conclusion that the case is covered by Section 304 Part II and not by Section 302, RPC. While saying so bail was granted to the accused. This order was subject to revision before High Court. On 13-11-1997, this Court observed that parallel proceedings on the report of police and in the form of complaint in respect of the same occurrence involving same parties cannot be allowed to continue and in that context the cognizance taken and proceedings initiated on complaint u/S. 302, RPC was kept in abeyance.

(2.) In this petition accused prays that the bar placed on complaint proceedings be lifted so that the cases both on police report and complaint may run simultaneously. In eventuality of the case filed on police report being concluded finally, the complaint case regarding one and the same occurrence and involving the very accused will have to run thereafter. This is contrary to provisions of law regarding the procedure to be followed when complaint as well as challan is filed on culmination of police investigation in respect of the same occurrence and incriminating facts constituting same offence(s).

(3.) The submission of the counsel has substance. The matter is fully governed by provision of Section 205-E, Cr.P.C. The section provides that if on the report of investigating police officer u/S. 173, Cr.P.C. cognizance of an offence is taken by the Magistrate against person(s) who is/are also accused in the complaint case, the Magistrate shall enquire into or try together, the complaint case and the case arising out of the police report, as if both cases were instituted on police report. Obviously staying of complaint case as parallel proceedings is not envisaged by Section 205-E of Cr.P.C. Thus viewed the CJM, Handwara is directed to initiate and take proceedings both in Challani case on the report of I.O. u/S. 173, Cr.P.C. and the complaint case filed by Rustum Malik, under law including provisions of Section 205-E, Cr.P.C. This petition is disposed of accordingly. Inform Court below of this order. Order accordingly.