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1971 DIGILAW 129 (PAT)

JOGINDRA SINGH alias JOGI SINGH v. STATE OF BIHAR

1971-09-09

J.NARAIN

body1971
JUDGMENT : Narain, J. This application in revision is directed against the ORDER :dated 26th February, 1971, passed by the Additional Sessions Judge, Darbhanga, by which he upheld the ORDER :of Shri S. D. Sharma, Munsif Magistrate, declining to commit the accused persons to the Court of Sessions 2. The circumstances, in which the impugned ORDER :came to be passed, will appear from the following: For an occurrence that had taken place on 28.3.1968 in village Sisouna within Madhubani Police Station, the petitioner, Jogindra Singh, lodged a first information report at the Madhubani Police-Station on 13.4.1968. After completing investigation, the police submitted charge-sheet under Sections 144, 323 and 324, Indian Penal Code against Kameshwar Jha, Kusheshwar Jha and others. The case is pending in the Court of Shri S. D. Sharma, Munsif Magistrate, 1st Class, Madhubani, wherein five prosecution witnesses have been examine. 3. For the same occurrence in which Bachelal died, on the information laid by Kameshwar Jha, the police submitted charge-sheet under Sections 302, 323, 324 and 148 of the Indian Penal Code against Jogindra Singh and others. The commitment enquiry has already been finished and the case has been committed to the Court of Sessions. 4. In the petitioner's case against Kameshwar Jha and others pending in the Court of Shri S. D. Sharma, Munsif Magistrate, two petitions were filed for (committing the accused persons to the Court of Sessions. One of those petitions was filed on 23.7.1969. It was stated therein that the counter case with respect to the same offence had already been committed to the Court of Sessions, and therefore it would be better that in this case the procedure of commitment enquiry be adopted. Against the ORDER :dated 29.8.1969 recorded by the learned Munsif Magistrate rejecting this petition, there was a revision application which was heard by the Additional Sessions Judge. He took the view that there was no case for committing the accused in this case to the Court of Sessions and that when the trial court was still proceeding with the trial and witnesses were being examined, the present application was premature. 5. It has been strenuous]y argued for the petitioner, Jogindra Singh, that regard being had to the case and the counter case pending in respect of the same occurrence this is pre-eminently a most fitting case that should also be committed to the Court of Sessions. Mr. 5. It has been strenuous]y argued for the petitioner, Jogindra Singh, that regard being had to the case and the counter case pending in respect of the same occurrence this is pre-eminently a most fitting case that should also be committed to the Court of Sessions. Mr. Satyanand Kumar arguing on behalf of the petitioner has invited my attention to the principles which should govern such matters and in doing so, he has referred to the decisions of the Madras High Court, Allahabad High Court and of this Court. In (1) Thota RamaKrishnayya and others V. The State (A.I.R 1954 Madras 442) it was held. : “Where there is a fight between two rival factions which gives rise to the complaint and counter-complaint it is a generally recognised rule that both the cases should be tried by the same Judge in quick succession though with different Assessors and Jurors; the first case should be tried to a conclusion and the verdict of the Jury or the opinion of the Assessors be taken. The Judge should, however, postpone the JUDGMENT : in that case till he has heard the second case to a conclusion and he should then pronounce JUDGMENT :s separately in each case. He is bound to confine his JUDGMENT : in each case to the evidence let in that particular case and is not at liberty to use the evidence in one case for the purpose of the JUDGMENT : in the other case and to allow his findings in one case to be influenced in any manner to the prejudice of the accused by the views which he may have formed in the other case." In the case of (2) Rex V. Matoley and others (A.I.R.1949 Allahabad 1) a complaint was filed under Section 323 of the Indian Penal Code read with Section 24 Cattle Trespass Act and it was pending trial before a Magistrate. There was a cross-case under Section 304 of the Indian Penal Cede before him. The Magistrate committed the latter case to the Court of Sessions. Subsequently the Magistrate committed the previous case also to the Court of Sessions. This he did on the ground that it was cross case to the case under Section 304 of the Indian Penal Code which had already been committed to the Court of Sessions. The Magistrate committed the latter case to the Court of Sessions. Subsequently the Magistrate committed the previous case also to the Court of Sessions. This he did on the ground that it was cross case to the case under Section 304 of the Indian Penal Code which had already been committed to the Court of Sessions. The Full Bench held that the ORDER :of the commitment of the first case was perfectly valid in law. The Patna case is reported in (3) 1970 P.L.J.R. 236 (Hasim Mian V. Sunder Paswan and others). In that case, the petitioner and the opposite party had filed case and counter case with respect to the same .occurrence. The case filed by the opposite party had been committed to the Court of Sessions. The petitioner filed a petition that his case also be committed to the Court of Sessions. By that time the prosecution witnesses had been examined and the accused had entered upon their defence. The petitioner's petition was rejected on the ground of delay. This Court held that "for the ends of justice it is desirable that both the cases should be tried by the same judge, namely, the Sessions Judge." 6. It would be advisable to refer to the earliest decision of the Madras High Court in Goripathi Krishnamma of which reference has been made in (1) 1954 Madras 442 (Thota Ramakrishnayya and others V. the State) to find out what should be the principle in the present case. It was held in that case of Goripathi Krisnamma : "Where there was a fight between two parties and the police charge-sheeted both and the offences against one party were triable by the Magistrate while those against the other were triable by the Sessions, that both cases should have been committed for trial by the Sessions Court on the foot of the following reasoning: A case and a counter case arising out of the same affair should always, if practicable be tried by the same Court. Each party represent themselves as having been the innocent victim of the aggression of the ORDER :. Neither will, as prosecution witnesses admit that they retaliated on the other, for the obvious reason that they arc themselves on trial in the other case. Each party represent themselves as having been the innocent victim of the aggression of the ORDER :. Neither will, as prosecution witnesses admit that they retaliated on the other, for the obvious reason that they arc themselves on trial in the other case. As accused, they do not, as a rule let in any defence evidence, relying on the evidence they have given in the other case as prosecution witnesses. The result is that no court can grasp the real facts unless it tries both cases." The salutary principle in dealing with cases and counter cases is that no court can grasp the real facts unless it tried both the cases and that this applies even where only one of them is exclusively triable by a Court of Sessions. Thus, the present case which is pending before Shri S. D. Sharma, Munsif Magistrate, should also be committed to the Court of Sessions, so that for the ends of justice the same court may have seisin of the two cases and can “grasp the real facts" and come to a just decision. The above disposes of the point raised. 7. In the result, the application IS allowed and the case is sent back to the learned Munsif Magistrate to treat the proceeding before him as an inquiry under Chapter XVIII of the Code of Criminal Procedure and to further proceed in the matter according to law. Before the Committing Court the petitioner will be at liberty to agitate the question concerning the offence under Section 302 of the Indian Penal Code, a point which has been raised in the revision application before this Court. Application allowed