Research › Browse › Judgment

Madhya Pradesh High Court · body

1983 DIGILAW 566 (MP)

RAJENDRA SINGH v. STATE OF M. P.

1983-12-15

K.K.ADHIKARI

body1983
K. K. ADHIKARI, J. ( 1 ) THIS Revision is directed against the order dated 16. 6. 1983 passed by the learned Second Additional Sessions Judge, Bhopal, in Sessions Trial No. 87 of 1983, where under the learned judge transferred the case for trial to the Chief Judicial Magistrate, Bhopal, on the reasoning that the offences with which the accused therein had been charged are triable by him and not by the Court of Session under section 209 of the Code of Criminal Procedure. ( 2 ) OUT of an incident, which occurred on 15. 11. 1982, at 21. 45 hours, two cross reports lodged in police-station Mangalwara, Bhopal, leading to filing of two separate cases. In the report lodged by the present applicant No. 1, Rajendra Singh, offence under sections 147, 148, 149, 452 and 323 of the Penal Code was registered against Harbhajan Singh, crime under section 307/34 of the Penal Code was registered against the applicants. Both the parties to the aforesaid incident were chargesheeted in the Court of Judicial Magistrate, First Class, Bhopal, who committed both these cases to the Court of Session, Bhopal, for trial in the interest of justice, though the offences against Harbhajan and two others were not exclusively triable by the Court of Session. By the impugned order, under challenge in this revision, the learned Second Addi. Sessions Judge transferred the case back for disposal in accordance with the provisions of law. ( 3 ) THE learned counsel for the applicants contended that under the provisions of section 323 of the Code of Criminal Procedure, the learned Magistrate had committed the case for trial by the Court of Session in view of the fact that a cross-case arising out of the same incident and exclusively triable by the Court of Session was committed by him. It was pointed out that the order of the Magistrate in committing this case, though not exclusively triable by the Court of Session, was legal and its transfer by the learned Second Addi. Sessions Judge for trial to the Chief Judicial Magistrate ignores the fact that the cases arose out of the same incident, and therefore, under the circumstances, it was expedient in the interest of justice to have tried, both the cases together. Sessions Judge for trial to the Chief Judicial Magistrate ignores the fact that the cases arose out of the same incident, and therefore, under the circumstances, it was expedient in the interest of justice to have tried, both the cases together. It was argued that the Court below had jurisdiction to try the offences, though those were not exclusively triable by the Court of Session. It was further contended that once the learned Magistrate was satisfied that the said case ought to be tried by the Court of Session, the same could not have been transferred back for trial to the Chief Judicial Magistrate. ( 4 ) THE learned Panel Advocate appearing for the State except for pointing out that the charges framed against Harbhajan and others were not exclusively triable by the Court of Sessions submitted that no illegality has been committed by the Addi. Sessions Judge in transferring the matter for trial by the Chief Judicial Magistrate. ( 5 ) HAVING considered the arguments advanced on behalf of the parties, in my opinion, when two cases arise out of the same incident, it is always desirable, in the interest of justice, that both cases are heard, one after the other, by the same Presiding Judge and judgments are delivered after the completion of trial of both the cases, to avoid any possible contingency of conflicting findings, though each of the case is necessarily required to be decided on the evidence led on the record of each of such cases and the Presiding Judge should not use the evidence of one case in the another. ( 6 ) A similar question arose for determination before the Himachal Pradesh High Court in State of H. P. v. Madho Ram1 in which it has been held that the provisions Section 323 of the Code of Criminal Procedure envisage a situation where an offence is being tried by the Magistrate and the Magistrate thinks that it ought to be tried by the Court of Session. One of the circumstances may be that out of the same incident an accused may have committed an offence, say, under section 302 of the Penal Code and another offence under the Arms Act. One of the circumstances may be that out of the same incident an accused may have committed an offence, say, under section 302 of the Penal Code and another offence under the Arms Act. Now, the first offence is exclusively triable by the Court of Session whereas the second offence can be tried by the Magistrate, The Magistrate may commit the second case to the Court of Session on the ground that it ought to be tried boy the Matter. In other words, under Section 323 the Magistrate may commit a case to the Court of Session though it is not exclusively triable by the latter, by following a Division Bench decision of the Bombay High Court in Anil Bhaskar Sonavane v. State of Maharashtra2 in which it has been observed, Under section 323 two contingencies might arise. When the charge is laid before the Magistrate in the form of a police report or otherwise, the offence disclosed may be exclusively triable by the Court of Session. When evidence is led it might transpire that the offence is exclusively triable by the Court of Sessions and the Magistrate has no option in that case but to commit the case for trial to the Court of Session. There may be another eventuality, where the offence will be triable by him and not exclusively by the Court of Session. However, in the circumstances, as we have detailed above, in the present case cross complaints arise out of the same incident and it is desirable in view of the principle laid down by this Court that the two cases ought to be tried in quick succession by the same Presiding Judge. If one of them is exclusively triable by the Court of Session, the Magistrate undoubtedly has no right to try that case, and the Court of Session can try a case relating to any offence under the Penal Code as provided in section 26 of the Code. If one of them is exclusively triable by the Court of Session, the Magistrate undoubtedly has no right to try that case, and the Court of Session can try a case relating to any offence under the Penal Code as provided in section 26 of the Code. The High Court and the Court of Session have been authorised to try any offence under the I. P. C.- In these circumstances the Magistrate who is unable to try the other case must direct that the cross case arising out of the same incident requires to be tried by the same Court in view of the principle laid down by the case law of this Court and the compliance with that principle is possible if the other case, which is triable by him, is also committed to the Court of Session for trial along with the other case already committed. I am in complete agreement with the view taken by the above two High Courts. ( 7 ) IN view of the above, the impugned order is set aside and it is directed that the learned Second Addi. Sessions Judge, Bhopal, shall try S. T. No. 87 of 1983 in quick succession to S. T. No. 88 of 1983 in accordance with law and procedure to be followed by the Court would be that both the trials should be tried in quick succession but judgments in both should be pronounced simultaneously and in no case, the Presiding Judge shall use evidence of one case in the other case while pronouncing judgments. ( 8 ) IN the result, the revision is allowed and the impugned order is set aside. The learned Second Addi. Sessions Judge, Bhopal, shall commence trial in the manner indicated above. Revision allowed. .