R.N. Biswal, J.

1. The petitioners call in question the orders dated 16.11.2004 and 7.3.2005 passed by the learned S.D.J.M., Nayagarh in I.C.C. case No. 131 of 2004 wherein he took cognizance for the offence under Sections 323/506/379 of I.P.C. and issued summons against them for their appearance on 21.12.2004 in the first order and ordered to proceed against accused Inda Bhuyan and Gunjar Dei under Sections 323/506/379 of I.P.C. and to tag the complaint case with G.R. Case No. 412 of 2004 for the rest of the accused persons for the offence under Sections 323/506 of I.P.C. and further ordered that the complaint case has to proceed against all the accused persons for the offence under Section 379 of I.P.C. in the second order.

2. The fact germane to filing of this CRLMC under Section 482 of Cr.P.C. is that on 20.9.2004 opp. party No. 2 Chari Bhuyan lodged an FIR against the petitioners, 7 in number, on the basis of which Sarankul P.S. case No. 63 of 2004 was registered under Sections 341/323/448/354/506 read with Section 34 of I.P.C. giving rise to G.R. Case No. 412 of 2004 of the file of S.D.J.M., Nayagarh. While investigation in the said case was in progress opp. party No. 2 filed the aforesaid complaint case in respect of the same occurrence against the petitioners and two more others namely, Inda Bhuyan and Gunjar Dei. Even though it was brought to the notice of the learned S.D.J.M. Nayagarh, he neither stayed the further proceeding of the complaint case nor called for a report from the police officer conducting investigation and thereby violated the mandate of Section 210(1) of Cr.P.C. After completion of investigation in the aforesaid G.R. case, on 13.12.2004 the I.O. submitted charge sheet under Section 341/323/448/354/506 read with Section 34 of I.P.C. and vide the 1st impugned order dated 16.11.2004 the learned S.D.J.M. took • cognizance of the aforesaid offences and ordered to issue process against the petitioners fixing 21.12.2004 for their appearance. The petitioners filed a petition to drop the proceeding against them in the complaint case, but the learned S.D.J.M. vide order dated 7.3.2005 passed the 2nd impugned order as stated earlier. Hence, the petition under Section 482 of Cr.P.C. giving rise to the aforesaid CRLMC.

3. On perusal of the order dated 2.2.2005 arising out of a petition under Section 210 of Cr.P.C. to tag the complaint case with the G.R. case, it is found that since charge sheet in the G.R. case had not been submitted till the said order was passed and cognizance had already been taken against all the accused persons in the complaint case and the G.R. case had not been registered against Inda, Gunjar, Melia, Basa and Basanta, the learned S.D.J.M. refused to tag the complaint case with the G.R. case together. But the order dated 4.1.2005 passed in the G.R. case No. 412 of 2004 shows that on that date the I.O. submitted charge sheet No. 63 dated 31.12.2004 under Section 341/323/448/354/506/34 I.P.C. against accused Basa Dei, Melia Bhuyan, Basanta Dei, Dandu Pradhan, Babu Pradhan, Kanak Dei and Kuni Dei (petitioners in the present case). So, the finding of the learned S.D.J.M; vide order dated 2.2.2005 that charge sheet had not been filed by then is factually wrong.

4. Learned counsel appearing for the petitioners submitted that when it was brought to the notice of the learned S.D.J.M. that on the report of the complainant-O.P., on the selfsame occurrence a P.S. case had been registered and investigation was in progress, it was incumbent upon the learned S.D.J.M. to stay the further proceeding in the complaint case and call for a report from the I.O. as postulated under Section 210 of Cr.P.C. and when it has not been done so, the order of taking cognizance in the complaint case and the subsequent orders dated 7.3.2005 deserved to be quashed. The learned Additional Standing Counsel supported the impugned order.

In view of the submission of learned Counsel for the petitioners, it would be profitable to quote Section 210 of Cr.P.C. which reads as follows;

210. 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 or 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 enquire 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.

5. The word "offence" found in Sub-section (1) of Section 210 of Cr.P.C. quoted above connotes occurrence also. While inquiring into or trying a complaint case, if the Magistrate is made aware of the fact that investigation into a P.S. Case in respect of the same occurrence is in progress, he is to stay the inquiry or the trial and call for a report in the matter from the police officer investigating into the case. As required under Sub-section (2), if a report is submitted under Section 173 of Cr.P.C. and the Magistrate takes cognizance of any offence on such report against any person as an accused, who is also an accused in the complaint case, then both the complaint case and the case arising out of the police report has to be enquired/ tried together, as if both the cases were instituted on a police report. At least one accused must be common in both the complaint case and police case to attract Sub-section (2). In other words even if some accused are not common in the complaint case and the case arising out of police reports, still then both the case are to be tried together. Similarly, the offences in both the cases may not be same. As stipulated under Sub-section 3, if the police report does not relate to any accused in the complaint case or Magistrate does not take cognizance of any offence in the police report, then both the cases can not be clubbed together.

6. Coming to the present case, as found from the impugned orders, the date, time and place of occurrence in both the G.R. case and Complaint case are same, so also the informant and the complainant. The petitioners have been arrayed as accused in both the cases. In the complaint case two more persons namely, Inda and Gunjara have been added as accused. Cognizance has been taken for the offence under Sections /341323/448/354/506/34 of I.P.C. in the G.R. case, while in the complaint case cognizance has been taken under Sections 323/506/379 of I.P.C. In both the complaint case and G.R. case, the offences under Sections 323/506 are common. The trial Court held that the complaint case shall proceed against Inda Bhuyan and Gunjara Dei for the offence under Sections 323/ 506/379 of I.P.C. and for the rest accused persons the complaint case shall be tagged with the G.R. case for the said offence and that the complaint case would run against all the accused persons under Section 379 of I.P.C. which is illegal, in view of the analysis of the provision under Section 210 of Cr.P.C. as made above.

7. Therefore, the CRLMC is allowed and the impugned orders are hereby quashed. Both the G.R. case and the complaint case shall be tried together as if both the cases were instituted on police report.