R.N. Misra, J.
1. On the basis of a first information report lodged by one Bhagabat Mohanti, of village Baliapat within the Fategarh Police Station of Puri district alleging commission of several offences by the accused persons belonging to the adjacent village Sanasahara arising out of claim of using an orchard as graveyard for cremation of dead bodies. G. R. Case No. 34 of 1978 has been instituted and is pending trial in the Court of the Judicial Magistrate at Khandapara. A complaint has also been filed by one Jadumoni Naik of Baliapat several months after the alleged occurrence implicating several persons including some persons accused in the police case which has been registerered as Complaint Case No. 94 of 1978 and is pending in the same court.
In the first information report, it was alleged that the land in dispute is a part of mouza Baliapat and the villagers have tenancy right therein. The villagers of Sanasahar claiming right of cremation of dead bodies of people belonging to their village carried a dead body on the date of occurrence. Apprehending trouble, the informant's party had sought police help and two constables had been deputed to the spot to maintain peace. The Officer-in-charge of the Police Station also came there armed with a revolver. He had succeeded in collecting all the weapons from the two groups and put them in charge of a constable and had managed to keep the groups separated., At this point of time, on account of certain wild remarks made by the villagers of Sahara, dispute started and the police officer who fired blank shots with a view to pacifying the mob was attacked. He fired a shot resulting in the death of a villager of Baliapat. It was further alleged that one Dinabandhu Sahu of Sahara fired a pistol shot at Jadumani Naik of Balipat which hit him in the shoulder and he fell down. The learned Magistrate did not take cognizance of any offence against the police officer for want of the requisite sanction as required under Section 132 of the Cr. P.C., but by his order dated 27-9-1979 took cognizance of offences under Sections 302, 307, 148, 326. 337/149. I.P.C. read with Section 27 of the Arms Act against the rest of the accused persons. Criminal Revision No. 450 of 1979 is by the accused persons and they have asked for a direction that the case should proceed for trial of offences under Sections 147, 148, 149/337, I.P.C. and not for the remaining.
2. As already stated Jadumani filed a complaint against several persons of village Sahara including some of the accused persons in the Police case. The learned Judicial Magistrate by his order dated 27-9-1979 directed that:
Stay of further proceeding Under Section 210 Cr. P.C. is vacated as cognizance of offences Under Section 302/307/148/326/337/149 I.P.C. and Under Section 27 of the Arms Act have been taken against Dinabandhu Sahoo, Bhramar Dehury, Baidhar Patnaik, Banshidhar, Patnaik, Sanyasi Parida, Hari alias Harihar Pattnaik, Adhikari Parida Bipinabehari Pattnaik Pura Parida, Sudarsan Dehury, Meiechha Jena, Khalli Parida, Gurubari Behera, Muli Biswal, Shyama alias Shyamabandhu Sahoo, Hari Padhan, Kasi Jena, Bidya Lenka, Sudarsan Jena, Naba alias Naba-kishore Patnaik, Udayanath Parida, Loka-nath Patnaik, Nidhi Padhan, Chhatia Parida, Baidhar Jena, Khali alias Hari-hara Lenka and Basu alias Basudev Jena in G.R. 34/78.
It is also held in that case that D. Rai-pritam, the O.I.C. of Fategarh P. S. cannot be prosecuted except with the sanction of State Government as per the provisions of Section 132 Cr. P.C. The case against them shall be tried together with G. R. Case No. 34/78 as if both cases were instituted upon police report as per the provisions of Section 210(2) Cr. P.C. The complaint against rest of the persons shall proceed. Put up on 15-10-79 for an inquiry Under Section 202 Cr. P.C.
The enquiry proposed by the order is called in question in Criminal Revision No. 448 of 1979 and it is contended that the splitting up is not permissible, Reliance has been placed on a single Judge decision of the Delhi High Court in the case of State v. Har Narain 1976 Cri LJ 562 and it is argued that the direction that an enquiry shall be held is without jurisdiction.
3. Learned Standing Counsel for the State and Mr. Patnaik appearing for the complainant concede that in the F. I. R. the clear allegation, so far as the offence under Section 302, I. P. C, is concerned, was confined against the police officer. In that view of the matter, once cognizance against the police officer is not taken, there is no scope to take cognizance of the offence of murder punishable under fa. 302, I.P.C. Mr. Patnaik, however, contends that the offences under Sections 326 and 307, I.P.C. cannot be dropped as there is the requisite allegation and the prosecution has to be given, opportunity to establish its case. I am inclined to accept the submission. Criminal Revision No. 450 of 1979 is allowed in part. The direction that cognizance of the offence under Section 302, I.P.C., be taken is set aside. The police case shall proceed for the re-Imaining offences in accordance with law.
4. Section 210 of the Cr. P.C. provides:
Procedure to be followed when there is a complaint case and police investigation in respect of the same offence.-
(1) When in a case instituted otherwise than on a police report (hereinafter referred to as a complaint case), it is made to appear to the Magistrate, during the course of the inquiry or trial held by him, that an investigation by the police is in progress in relation to the offence which is the subject-matter of the inquiry of trial held by him, the Magistrate shall stay the proceedings of such inquiry or trial and call for a report on the matter from the police officer conducting the investigation.
(2) If a report is made by the investigating police officer under Section 173 and on such report cognizance of any offence is taken by the Magistrate against any person who is an accused in the complaint case, the Magistrate shall inquire into or try together the complaint case and the case arising out of the police report as if both the cases were instituted on a police report.
(3) If the police report does not relate to any accused in the complaint case or if the Magistrate does not take cognizance of any offence on the police report, he shall proceed with the inquiry or trial, which was stayed by him, in accordance With the provisions of this Code.' Sub-section (2) in clear terms provides that the complaint shall be deemed to be a police report in regard to the accused persons common to both the cases.
There is nothing in the Delhi case 1976 Cri LJ 562 which lends support to the submission of the petitioners that the accused persons not involved in the police case cannot be proceeded against in view of Section 210 of the Code. On the other hand, a learned single Judge of this Court has categorically indicated in the case of Tikaram Agarwalla v. State (1976) 42 Cut LT 107:.There is nothing in the Cr. P.C. to suggest that once police investigation is done in respect of certain accused persons, then the jurisdiction of the Magistrate to hold enquiry under Section 202 in respect of those accused persons is completely ousted....
In regard to the common accused persons, the provision in Sub-section (2) applies while in regard to those who are not in the police case, the provision in Sub-section (3) applies.
5. There is no merit in the contention. Criminal Revision No. 448 of 1979 is accordingly dismissed.