Sharfuddin Ahmed, J.
1. The case arises out of a reference made by our learned brother, Vaidya J. in C. M. Ps. Nos. 2082, 2004 and 2006 of 1967. The point that has been referred to us is, whether the Sessions trial can be stayed pending an enquiry on the base of a private complaint. The facts necessary to appreciate the arguments on either side made briefly be stated.
2. A preliminary charge-sheet was filed by the Police, Nandyal in Crime No. 6 of 1967 on the file of the Additional Judicial 1st Class Magistrate, Nandyal, against nine persons under Sections 148, 302 read with 34 and 149 I. P. C. with the allegation that on 7-9-1967 at about 7 a.m. while the deceased A. Dastagir Saheb, was returning with P. Ws. 1, 2 and 3 to their village from Nandyal after attending Second Show cinema, the accused (A-1 to A-9) waylaid and attacked the deceased at a distance of a 3 furlongs on Nandyal-Chabolu cart-track. The overt acts of the various accused were mentioned in Para 7 of the provisional charge-sheet. This provisional charge-sheet was filed on 22-9-1967. However, when the final charge-sheet was laid the case took a different turn. The names of the first four accused mentioned in the provisional charge-sheet were deleted; A-5 in the provisional charge-sheet was made an approver and it was stated that there were no eye witness in the case. Three more persons were added as accused instead of the first four persons mentioned in the provisional charge-sheet.
3. Thereafter, the petitioner herein, who figured as P. W. 1 in the provisional charge-sheet, filed a private complaint, P. R. C. No. 8 of 1967, complaining that the Police had deleted the main accused in the case and had given a different complexion to the entire case. The learned Magistrate registered the case and passed an order on 9-11-1967 taking cognizance of the offences under Sections 148 and 302 read with 149 I. P. C., against A-1 to A-4 in the complaint. In regard to others, he observed, that as cognizance had already been taken against them in P. R. C. No. 6 of 1967 and the role given to them is the same as in the complaint, it was not necessary to take cognizance of the case against them. Aggrieved by this order, the complainant went in revision to the Sessions Judge, but the Sessions Judge rejected the petition. Meanwhile, P. R. C. 6 of 1967 was committed to the Court of Session.
4. The petitioner then filed a revision to the High Court and sought the stay of the Sessions trial pending the trial of his complaint. The case came up before our learned brother, Vaidya, J., who made this reference on the question, whether the stay of sessions case is permissible in view of the decision reported in the case of Narasimha Reddy v. The State, : AIR1961AP304 .
5. The learned counsel for the petitioner contends that the Magistrate should not have refused to take cognizance of the case against the other accused mainly on the ground that cognizance had already been taken against them in P. R. C. No. 6 of 1967, and that the role allotted to the accused against whom cognizance has now been taken is not one and the same as in P. R. C. No. 6 of 1967. His other plea is that the Sessions Case in P. R. C. No. 6 of 1967, which has been rested for trial, should be stayed pending the enquiry. The learned counsel for the accused in the Session Case, on the other hand, argues that the accused have been in jail for the last two months as a result of the stay obtained by the petitioner, and that no further stay should be granted as it will encourage private parties to take up cases on complaint.
6. Having regard to the facts of that case, the proper course for the Magistrate would have been to proceed with the enquiry and also the P. R. Case simultaneously and to dispose of the both cases on merits. But, unfortunately, in this case, P. R. C. 6 of 1967 has been committed to the Court of Sessions, while the enquiry in P. R. C. 8 of 1967 has been held up obviously because of the stay obtained by the petitioner herein. If both the cases were pending before the Magistrate, there could be no difficulty in ordering the Magistrate to proceed with the enquiry in the complaint and to dispose of the P. R. C. after the enquiry was completed. But, as stated above, the position now is that while P. R. C. 6 of Session and one of the accused therein has been made an approver in the enquiry in the other P. R. C. lodged by the complainant is still pending before the Magistrate wherein he has taken cognizance against four accused only. The complainant is naturally anxious to proceed with the enquiry in conformity with the facts mentioned in the provisional charge sheet as according to him it represented the correct statement of facts on which the final chargesheet should have been laid. The position is not free from difficulty, While, on the one hand, the complainant has a right to examine the witness on his behalf to establish the facts mentioned in the complaint, the claim of the accused not to be detained in the jail for a period longer than they are actually required for the conduct of the case cannot be ignored. The difficulty has arisen, as stated above mainly due to the fact that one of the cases has been committed to the Court of Session while the connected matter is still pending before the Magistrate and because of the fact that one of the accused has been made an approver.
7. On a careful consideration of the various steps that could be taken to enable the complainant to proceed with the enquiry and at the same time to avoid undue delay in the trial of the Sessions Court we are of the opinion that the stay of the Sessions trial in S. C. No. 104 of 1967 for a short period is desirable to enable the Magistrate to proceed with the enquiry. The petitioner is willing to give up the approver, so that the enquiry may proceed only against the four accused in respect of whom cognizance has been taken by the Magistrate. The case referred to above, : AIR1961AP304 does not prohibit the stay of sessions case in each and every case. It is a decision based on the facts of that particular case. We, therefore, direct the Magistrate to proceed expeditiously with the enquiry and complete the same within a period of three weeks from the date of receipt of the order in the lower Court. Sessions case No. 104 of 1967 will be stayed pending the completion of enquiry. In case the complaint filed by the petitioner results in committal, the learned Sessions Judge will proceed with the trial by clubbing it with the case pending before him. The learned counsel for the respondent contended that the procedure of clubbing will not be in accordance with law, but we are not inclined to uphold that objection. With this direction Criminal Revision Case will stand dismissed. If the enquiry is not completed within the said period the accused-respondents herein will be entitled to renew their application for ball. The records shall be sent expeditiously to the lower Court.
MBR/ D. V. C.
8. Order accordingly.