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Prabir Mukherjee & Ors vs Unknown on 2 August, 2019

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02.08.2019

Item no. 39
Ct. No.22
CHC

C.R.R. No.2118 of 2018

In Re: An application under Section 401 read with Section 482 of
the Code of Criminal Procedure, 1973.

In the matter of:-

Prabir Mukherjee ors.

… Petitioners

Mr. Abdur Rakib,
Mr. Jisan Ahamed
…for the petitioners

Mr. Binoy Kumar Panda,
Mr. Subham Kanti Bhakat
…for the State

The affidavit-of-service filed in Court be kept on record.

This is an application under Section 401 read with Section 482

of the Code of Criminal Procedure seeking an order of

amalgamation of the proceedings registered in connection with

Khardah Police Station Case No.117 of 2018 dated 09.02.2018

under Sections 420/Section34 of the Indian Penal Code, corresponding to

G.R. Case No.759 of 2018 with the proceedings arising out of

Khardah Police Station Case No.768 of 2017 dated 18th October,

2017 under Section 406 of the Indian Penal Code corresponding to

G.R. Case No.6951 of 2017, both pending before the court of

Learned Additional Chief Judicial Magistrate, 24 Parganas (North).
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It is submitted by the learned advocate for the petitioners that

de-facto complainant/opposite party no.2 filed F.I.R. under Section

154 of the Cr.P.C. on 18th Day of October, 2017 at Khardah Police

Station alleging commission of the offence under Section 406 I.P.C.

and which was registered as Khardah Police Station Case No.768

of 2017 dated 18th October, 2017 under Section 406 I.P.C. and

over the selfsame incident the selfsame de-facto complainant also

filed an application under Section 156(3) Cr.P.C. dated 1st

November, 2017 seeking police investigation alleging commission

of offence under Sections 420/Section34 I.P.C., which on being ordered by

the Learned Magistrate, police registered Khardah Police Station

Case No.117 of 2018 dated 9.2.2018 under Sections 420/Section34 of the

Indian Penal Code.

It is further submitted by the learned advocate for the

petitioners that the allegation made out in both the cases are same

lodged by the selfsame de-facto complainant against the selfsame

accused persons, wherein the de-facto complainant sought to

recover Rs.2,47,000/- from the petitioners/accused persons

alleging same to have been cheated.

Learned advocate for the petitioners further submits that over

the selfsame incident against the selfsame parties, registration of

the case twice is not permissible and as such an order may be
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necessary to otherwise secure the ends of justice, requiring

intervention of this Court in the given set of facts.

Learned advocate representing the State submits that since

police had no sufficient information about the previous registration

of the case over the selfsame incident, the investigating officer was

duty bound to register the case under Section 156(3) Cr.P.C. after

being ordered by the Learned Magistrate under Section 156(3)

Cr.P.C.

The only point to be considered is whether the prayer for

clubbing together of both the cases is permissible in the given set

of facts or not.

Admittedly, de-facto complainant lent money to

petitioners/accused persons in the interest of pursuing higher

education of the son of the petitioner no.1. Some of the money

given as loan has been paid back, but the most of the money could

not be given back to de-facto complainant causing him to suffer

extreme prejudice and in connection therewith he proceeded to file

first case under Section 154 Cr.P.C. before the Khardah Police

Station which was registered on 18th October, 2017 under Section

406 I.P.C.

Since no favourable position as per desire of the de-facto

complainant could be reached, a separate case under Section

156(3) Cr.P.C. was again filed by the de-facto complainant praying
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for recovery of Rs. 2,47,000/- which he alleges to have been

cheated by the petitioners.

The facts and circumstances and the averments contained in

both the cases are same leaving no ambiguity therein, and it is

basically for recovery of the money alleging the same to have been

cheated. The second case under Section 156(3) Cr.P.C. over the

selfsame incident was filed on 1st November, 2017, which was

registered by Khardah Police Station on 9th February, 2018. The

investigating officer of Khardah Police Station Case No.117 of 2018

dated 9.2.2018 ought to have brought to the notice of the Learned

Magistrate about the previous registration of the case by the

selfsame de-facto complainant over the selfsame incident, but this

is not the position in the instant case. However, there is a

provision under Section 210 Cr.P.C. to take care of clubbing

together of both the cases instituted one of police report and

otherwise than of police report. But there is no such conspicuous

provision to take care of instant situation. However, the principle

underlying Section 210 Cr.P.C. may be borrowed in the given set of

facts, in order to secure the ends of justice. The plenary

jurisdiction given under Section 482 Cr.P.C. can be made

applicable when the tests mentioned in the section itself is

justified. Since selfsame contention is involved in both the police

cases registered at selfsame Police Station, at the instance of
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selfsame complaint reference of which is mentioned hereinabove,

the Court is of the view that it is extremely necessary to pass order

directing both the police cases being No.768 of 2017 and 117 of

2018, both of Khardah Police Station Case be investigated

clubbing both the cases together in accordance with the provisions

of the law.

The revisional application thus succeeds being with merits.

With this observation/direction, this revisional application

stands disposed of.

Urgent certified photostat copy of this order, if applied for, be

given to the parties as expeditiously as possible on compliance of

all necessary formalities.

(Subhasis Dasgupta, J.)

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