Wanchoo, C.J:— This is a reference by the Additional Sessions Judge of Balotra and has arisen in the following circumstances:
Two goats belonging to Rawal Khanger Singh were stolen on the night between 8th & 9th October, 1948. In that connection Sardara & Mukania went to the Dhani of Achalia and others and made enquiries. It is said that there was an altercation between Sardara & Mukania on the one side and Achalia and others on the other, with the result that Sardara & Mukania were attacked by Achalia and others. The police investigated the matter and prosecuted three persons namely, Achalia, Nagia & Nawia under sec. 326 of the Indian Penal Code. Mukania, however, was not satisfied with that prosecution and filed a complaint against nine persons. These included Achalia, Nagia & Nawia who were prosecuted by the police, two other men Mohabatia & Kirtia and four women. Both the police case as well as the complaint case were before the same Magistrate. The Magistrate did not summon the four women but summoned Mohabatia & Kirtia also to stand their trial. He held a joint trial of the five accused, three of whom were mentioned in the police challan also, and the remaining two only in the complaint of Mukania. Eventually, the Magistrate framed a charge against Achalia only under sec. 326 of the Indian Penal Code. Thereupon, there was a revision before the Sessions Judge by Mukania. This revision was directed against the discharge of Nawia, Nagia, Mohabatia & Kirtia and there was also a prayer that all of them should be charged under secs. 148 & 307 read with sec. 149 of the Indian Penal Code. When the matter came up before the learned Additional Sessions Judge he did not go into the question whether the discharge was correct. He relied on Sita Ram v. The State (1950 R.L.W 281) and held that the joint trial of all the five accused was illegal, as only three of them were named in the police challan while the other two were mentioned only in the complaint of Mukania. This reference came before a learned single Judge of this court, who felt that the decision in Sita Ram's case was not correct, and, therefore, made a reference to a larger bench, the decision in Sita Ram's case being by a single Judge. That is how the matter has come before us.
2. There is no doubt that Sita Ram's case supports the view taken by the learned Additional Sessions Judge. In that case the police had sent up a challan against Sita Ram only while the complainant had filed a complaint against Sita Ram as well as Sankardan. The learned Judge observed that since only one accused was implicated in the challan, it was obvious that the complaint which implicated both Sita Ram & Sankardan could not be linked with it. No case has, however, been cited in support of this view. We are of opinion that the law, as stated there, goes too far.
3. Sec. 190 of the Code of Criminal Procedure gives jurisdiction to a Magistrate to take cognizance of any offence under three circumstances:
(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a report in writing of such facts made by any police-officer; and
(c) upon information received from any person other than a police-officer, or upon his own knowledge or suspicion, that such offence has been committed.
It is open to a Magistrate to act on any one of these three grounds but these three grounds are not, in our opinion, mutually exclusive and it is possible for a Magistrate to take cognizance of any offence upon two or more of such grounds e.g both upon receiving a complaint and on a police report. We may, in this connection, refer to Bharat Kishore Lal Singh Deo v. Judhistir Modak (A.I.R 1929 Pat. 473) which is a Full Bench decision. In that case it was held that the alternatives upon which a Magistrate might take proceedings could not be treated as mutually exclusive and it was not correct to say that a Magistrate while taking cognizance of an offence should have done it under some one of the alternatives to the exclusion of the other. It follows, therefore, that if a Magistrate has both a complaint and a police report before him about the same offence, he can take cognizance of that offence on the basis of both. The further question whether after taking cognizance on the basis of both, he can amalgamate them and hold a joint trial of the accused named in the police report as well as in the complaint depends upon sec. 239 of the Criminal Procedure Code and the discretion of the Magistrate, which has to be exercised according to the circumstances of each case.
4. Sec. 239 permits a Magistrate to hold a joint trial of various persons under the conditions mentioned therein. If, therefore, it is permissible under that section for the Magistrate to hold a joint trial of the accused named in the police report and the accused named in the complaint, there is, in our opinion, nothing illegal in the Magistrate amalgamating the two cases and holding a joint trial even though the accused in the police report may not all be the same as those in the complaint. The Magistrate is of course not bound to held a joint trial for there may be circumstances in a particular case where it may not be proper to hold a joint trial e.g, though the offence may be one, the persons prosecuted by the police may be totally different from the persons named in the complaint. In such a case, it will obviously be improper to amalgamate the two cases and hold a joint trial. But if there are no circumstances which make a joint trial in particular cases improper, a Magistrate has, in our opinion, the jurisdiction to amalgamate the two cases and hold a joint trial of the accused mentioned in the police report and in the complaint provided he can do so under sec. 239. We may in this connection refer to U. Po. Yone v. The Emperor (A.I.R 1933 Rangoon 271). In that case, the police prosecuted only three persons while the complainant named these three and three others. Both cases were before the same court and a question arose whether all the six could be tried together. The learned Judge was of the opinion that on the allegations made by the complainant, all the six could be tried together in view of sec. 239 though whether in any particular case it would be proper to hold a joint trial, would depend upon the facts of that case. We are, therefore, of opinion that the Magistrate had the power to try the three persons named in the police report and the further two persons named in the complaint jointly and his action in doing so was not illegal. To that extent, the decision in Sita Ram's case is over-ruled.
5. Then we come to the further question whether in the circumstances of this case, it was proper that the complaint case and the police case should have been amalgamated and all the five persons tried jointly. We see no impropriety in trying the five accused together in this particular case. We take it that the Magistrate took the precaution of recording all the evidence that the police and the complainant desired to produce. The reference which was based on Sitaram's case must, therefore, be rejected and the Sessions Judge should be directed to hear the revision of Mukania on the merits.
6. We, therefore, reject the reference and direct the Sessions Judge concerned to hear the revision of Mukania on the merits.