Victor Ekka v. V. T. Thomas — 1997 DIGILAW 538 (MP)

ORDER 1. Human nature as well as human relationship has enormous potentiality of exhibiting intrigue and intricacy. They can insensitively exposit a hyzantine situation or create a pandemonium over a contrived labyrinth. Sometimes they chain themselves in pretentions propensity to form a part of meretricious melodrama and yet sometimes expose their effects qualifies as if desirous of plunging into a catastrophe. When human relationships give rise to complex situations, the protagonists in search of salvation knock the doors of justice. 2. The aforesaid prefatory has become necessary as the case in hand has a peculiar and uncommon matrix. The petitioner-husband has invoked the inherent jurisdiction of this Court under section 482 read with section 407 and 408 of the Code of Criminal Procedure (hereinafter referred to as the 'Code') for transfer of Cri. Case No. 1057/96 instituted at the instance of the petitioner against the accused-non-applicant No. 1 for commission of an offence under section 497 of the Indian Penal Code pending in the Court of Judicial Magistrate, First Class, Bhopal to the Court of Sessions Judge, Bhopal with a further direction to try the same jointly with S.T. No. 77/95 wherein, the non-applicant No.1 is facing trial for offences under section 376 IPC read with section 3 (1) (ii) (xii) of Scheduled Castes and Scheduled Tribes (Prevention of Attrocities) Act, 1989 (hereinafter referred to as 'Act') for having committed rape on Smt. Kusum Ekka (the wife of the petitioner), who has set the criminal action in motion by lodging an FIR against the said accused. 3. The facts as have been adumbrated are that the petitioner is the husband of Smt. Kusum Ekka and both of them are presently residing at Bhopal. The petitioner is serving as Asstt. Registrar in Barkatullah University, Bhopal and his wife is employed as Medical Officer in Medico Legal Institute, G .M. College, Bhopal. The accused is in government service. For sometime he was sent on deputation as Finance Officer to the University at Bhopal. The petitioner is serving as Asstt. Registrar in Barkatullah University, Bhopal and his wife is employed as Medical Officer in Medico Legal Institute, G .M. College, Bhopal. The accused is in government service. For sometime he was sent on deputation as Finance Officer to the University at Bhopal. As the wife of the petitioner lodged an FIR alleging forcible sexual intercourse and the petitioner as well as his wife belongs to Scheduled Tribe, a crime was instituted for offences under section 376 of IPC read with section 3 (1) (iii) (xii) of the Act which ultimately, on commitment by the competent Court, has formed the subject-matter of S.T. No. 75/95 pending in the Court of Sessions Judge, Bhopal. It is pertinent to state here that there is allegation of repeated forcible sexual intercourse by practising coercion and threat. 4. As the wife of the petitioner was subjected to repeated sexual intercourse and thereby sexual exploitation by the accused-respondent 1, the petitioner filed a complaint under section 497 of IPC read with section 3 (1) (iii) (xii) of the Act, in the Court of Judicial Magistrate, Bhopal. The allegations are almost the same which form the foundation of the Sessions Trial. Because of this factual scenario the petitioner filed an application before the learned Sessions Judge for trial of both the criminal cases together. The learned Sessions Judge by his order dated 25.9.96 rejected the application on the ground that the complaint case filed by the petitioner had not been registered by that time. The petitioner decided to wait, and when the Judicial Magistrate, First Class, Bhopal passed an order dated 24.5.96 in criminal case No. 1057/96 registering an offence under section 497 of IPC against the accused-respondent 1 and issued summons to him for appearance, the petitioner moved an application before the learned Sessions Judge for trial of both the cases together but the learned Sessions Judge by the impugned order dated 14.2.97 rejected the application on the ground that both the cases relate to different spheres and therefore, do not call for a joint trial. The said order is the cause of grievance of the present petitioner. 5. Mr. The said order is the cause of grievance of the present petitioner. 5. Mr. Ravindra Shrivastava, learned counsel for the petitioner assailing the impugned order has contended that the learned Sessions Judge has failed to appreciate that allegations in both the cases rest on common bundle of facts and rock-bottom being the same there should be a joint trial. It is his further submission that the allegations are so inter-connected and interwined the Court below has erred in law by not directing for a consolidated trial. The learned counsel has canvassed that the case squarely falls within the scope and ambit of sections 220 and 221 of the Code and hence there should have been a direction for joint trial. He has also proponed that if a finding is recorded in the trial held for the offence under section 376 of the Indian Penal Code on the ground that there has been no sexual intercourse, the complaint filed by the petitioner would be nullified as the accused cannot be convicted of offence under section 497 IPC because of the embargo contained in section 300 of the Code. The alternative prayer of Mr. Shrivastava is that this Court should invoke the power under section 407 of the Code for transfering of the case as it is expodient for the ends of justice. Mr. Amit Verma, learned counsel for the accused-respondent has contended that when both the offences are distinct offences and diametrically opposite, the provisions enjoined under sections 220 and 221 of the Code are not attracted. He has also emphatically put forth that different procedures are required to be adopted for trial of the two different offences and, therefore, the prayer for holding a joint or consolidated trial is absolutely misconceived. Mr. Verma has also highlighted that in the complaint case no charge has yet been framed and hence question of clubbing the same with a Sessions Trial would be contrary to the basic concept of joint trial. It is further submitted that if the complaint case is tried by the learned Sessions Judge the accused would be deprived of his right of appeal and obliteration of such a right is not permissible in law. 6. It is further submitted that if the complaint case is tried by the learned Sessions Judge the accused would be deprived of his right of appeal and obliteration of such a right is not permissible in law. 6. The core question that falls for consideration is whether there should be one trial for both the cases or in the alternative, power under section 407 of the Code should be exercised in the interest of justice to transfer the case to the Court of Session with some direction regulating the proceeding. It is in dispute that the sames set of facts form the foundation of both the cases. In one hand the wife has made allegations that she has been raped on certain occasions being under threat and coercion whereafter the husband has instituted the complaint case that the accused has committed the offence of adultery. Rape has been defined under section 375 of the IPC. It is worthwhile to reproduce the said provision :- "375: A man is said to commit 'rape' who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions :- First: Against her will Secondly: Without her consent Thirdly: With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt. Fourthly: With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. Fifthly: With her consent, when, at the time of giving such consent, by reason or unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. Sixthly: with or without her consent, when she is under sixteen years of age. Explanation: Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. Exception: Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape." Section 497 IPC deals with adultery. Sixthly: with or without her consent, when she is under sixteen years of age. Explanation: Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. Exception: Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape." Section 497 IPC deals with adultery. The said provision reads as under:- "497:- Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence or rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case the wife shall not be punishable as an abettor." On a fair reading of the aforesaid provisions it is plain as day that both the offences cover different situations but can be overlapping in a peculiar factual backdrop. The offence under section 497 IPC requires three ingredients to be proved namely, (i) there has to be sexual intercourse by a man with a woman who is and whom he knows or has reason to believe to be the wife of another man; (ii) such sexual intercourse must have occasioned without the consent or connivance of the husband; and (iii) such sexual intercourse must not amount to rape. Thus, if the offence of rape is proved the question of commission of an offence of adultery vanishes. If a finding is recorded that there has been no sexual intercourse the allegation of adultery would loss its bedrock. The foundation being the same, Mr. Shrivastava has referred to the concept of same transaction and has submitted that the fact situation warrants for a single trial. He has referred to section 220 of the Code to indicate that the said provision is squarely attracted in the facts of the present case. He has also called in aid the provision of section 221 of the Code to contend that in case it is doubtful what offence has been committed, the accused can be charged with having committed all or any of such offences and allegations can be a matter of one trial. He has also called in aid the provision of section 221 of the Code to contend that in case it is doubtful what offence has been committed, the accused can be charged with having committed all or any of such offences and allegations can be a matter of one trial. He has also referred to sub-section (2) of the said provision and contended that the allegations warrant a consolidated trial. He has referred to a decision rendered in the case of Bhawani Dutt v. Emperor: AIR 1916 All. 307 wherein, in a trial for an offence under section 366 IPC the accused was convicted for an offence under section 497 IPC on the statement of the husband. To buttress his submission he has placed reliance on the decisions rendered in the cases of State v. Shrinath : AIR 1963 Raj. 14; Dr. A.N. Mukerji v. State: AIR 1969 All 489 and State of Karnataka v. N. Balakrishna: 1980 CrLJ 1145 . On consideration of the principles enunciated in the aforesaid decisions and reading the provisions 220 and 221 of the Code in proper perspective and taking into consideration the nature of offences, I am of the firm view that the fact situation does not warrant one trial nor does it call for framing of alternative charge so as to make both the cases subject-matter of a consolidated trial. 7. The alternative submission of Mr. Shrivastava is for invocation of jurisdiction of section 407 of the Code for transfer of the case with certain directions to regulate the proceedings. This submission is made on the ground that if the accused is acquitted in the rape case on appreciation of evidence that there has been no sexual intercourse, or convicted of the offences under section 376 IPC, his complaint case of the petitioner would become an exercise in futility epitomising labour of Sisphus. To substantiate this submission of his, he has referred to section 300 of the Code and has placed reliance on the decision rendered in the case of Amritlal Ratilla Mehta v. State of Gujrat: AIR 1980 SC 301 . The essence of the submission is that if the accused is acquitted of the offence under section 376 IPC, on the basis that there had been no sexual intercourse he would be entitled to plead autrefois acquit, and if he is convicted, the section itself ostracises the culpability. 8. The essence of the submission is that if the accused is acquitted of the offence under section 376 IPC, on the basis that there had been no sexual intercourse he would be entitled to plead autrefois acquit, and if he is convicted, the section itself ostracises the culpability. 8. To appreciate the aforesaid submission of Mr. Shrivastava, it is essential to understand the intendment of the legislature behind engrafting the provision under section 497 IPC. It is an offence which deals with adultery but no punishment is provided for the wife. Their Lordships of the Supreme Court in the case of Smt. Sowmithri Vishnu v. Union of India : AIR 1985 SC 1618 expressed thus :- "Law does not confer freedom upon husband to be licentious by gallivating with unmarried woman. It only makes a specific kind of extra-marital relationship an offence, the relationship between a man and a married woman, the man alone being the offender. An unfaithful husband risks or, perhaps, invites a civil action by the wife for separation. The legislature is entitled to deal with the evil where it is felt and seen most: A man seducing the wife of another." Their Lordship further laid down: "The argument of the counsel is that the real victim of such a prosecution is the wife B because, it is her reputation which is most importantly involved and assailed. Since S. 497 does not contain a provision that she must be impleaded as a necessary party to the prosecution or that she would be entitled to be heard, the section is said to be bad, counsel is right that S. 497 does not contain a provision for hearing the married woman with whom the accused is alleged to have committed adultery. But, that does not justify the proposition that she is not entitled to be heard at the trial. We have no doubt that if the wife makes an application in the trial Court that she should be heard before finding is recorded on the question of adultery, the application would receive due consideration from the Court. There is nothing, either in the substantive or the adjectival criminal law, which bars the Court from affording a hearing to a party, which is likely to be adversely affected, directly and immediately, by the decision of the Court. There is nothing, either in the substantive or the adjectival criminal law, which bars the Court from affording a hearing to a party, which is likely to be adversely affected, directly and immediately, by the decision of the Court. In fact, instances are not unknown in criminal law where the prosecution is in the charge of the public prosecutor, the private complainant is given permission to oversee the proceedings. One step more, and the wife could be allowed a hearing before an adverse finding is recorded that, as alleged by her husband the accused had committed adultery with her." Again, in the case of Revathi v. Union of India: AIR 1988 SC 835 it was further emphasised as follows :- "Section 497, Penal Code and S. 198 (1) read with S. 198 (2), Criminal P.C., go hand in hand and constitute a legislative packet to deal with the offence committed by an outsider to the matrimonial unit who invades the peace and privacy of the matrimonial unit and poisons the relationship between the two partners constituting the matrimonial unit. The community punishes the "outsider" who breaks into the matrimonial home and occasions the violation of sanctity of the matrimonial tie by developing an illicit relationship with one of the spouses subject to the rider that the erring "man" alone can be punished and not the erring woman." This being the position, an offence relating to adultery has a different canvas in contra-distinction to rape, an unavoidable but it is, when the wife has lodged an FIR for commission of the offence of rape and the husband has proceeded to initiate a complaint case for adultery, the cry for justice cannot be brushed aside. To elucidate, if rape is proved, the offence of adultery becomes a cry in oblivion and if there is a finding that there has been no sexual intercourse the offence under section 497 loses its basic foundation. Only if there is acquittal of the offence of rape on the ground of consent, there is possible justification for the trial under section 497 IPC, moreso, when the factual foundation is common to both the cases. This does not necessarily mean that there has to be a single trial for both the offences as that is likely to create an anomalous situation. This does not necessarily mean that there has to be a single trial for both the offences as that is likely to create an anomalous situation. There cannot be a single or consolidated trial but the interest of justice requires trial by the same Court. In this regard I may refer to the decision rendered in the case of Ramnazar Tiwari v. State of Uttar Pradesh: 1991 CrLJ 1698 wherein, the Court thought it proper that case and a counter complaint should be adjudicated by one Court. In the case of Girijanand Bhattacharayya v. The State of Assam and others : 1978 CrLJ 259 , it was observed as follows :- "Prime reasons for trial of cases and counter cases arising out of the same incident by one Presiding Officer are as under :- 1. It staves off the danger of an accused being convicted before his whole case is before the Court; 2. It deters conflicting judgments being delivered upon similar facts; and 3. In reality the case and the counter case are to all intents and purposes different or conflicting versions of one incident. Both the cases should be tried by the same Presiding Officer in quick succession. The first case should be tried to a conclusion, the judgment should be reserved till the second case is heard to its conclusion and thereafter the judgments should be pronounced separately in each case." The High Court of Orissa in the case of Ashok Kumar Panigrahi and two others v. State of Orissa and others: (1987) 64 CLT 475 observed that there is no provisi6n in the Code of Criminal Procedure that the two cases arising out of one and .the same occurrence shall be tried by the same Sessions Judge or Magistrate, but it is desirable in the interest of justice that a case and counter case arising out of the same occurrence should be tried by the same Judge. I may further refer to the decision rendered in the case of Khageswar and others v. Gangadhar Das and others: 1983 CrLJ (NOC) 70 wherein it was observed that when there is a case and counter case, and one of is exclusive triable by Court of Sessions and the other by the Magistrate, the High Court may order for committing of the case pending before the Magistrate to the Court of Session although there is no provision in the Code that two cases arising out of one and the same occurrence shall be tried by the same Judge or Magistrate. In the case of Smt. Malika Begum and others v. Mohd. Abdul Khadeer and other: ( 1985 CrLJ 926 , wherein, the criminal complaint was filed by the husband against his wife for biagamy under section 198 of the Code before the Court of Principal Asstt. Sessions Judge and a counter complaint was filed before the Additional Judicial Magistrate by the wife against the husband alleging that she was kidnapped and was forced to marry him, the Court referred to its earlier order passed in Cri. M.P. No. 2247/83 which reads as under :- ".......I am of the opinion that in both the cases the question of the marriage of petitioner No. 1 to respondent No. 1 or the petitioner No.2 is relevant and therefore, there is likelihood and there might be contrary findings by the two Courts. Hence, in these circumstances it is necessary in the interest of justice; and to avoid such contrary findings, the case should be transferred. Hence C.C. No. 132 of 1982 on the file of the IVth Additional Judge Magistrate I Class, Vijaywada is transferred to the file of the Principal Assistant Sessions Judge, Guntur for being tried along with Sessions Cases Nos. 91 and 92 on his file." Keeping the aforesaid principles in view, let me proceed to deal with the contentions of Mr. Verma, learned counsel for the accused-respondent 1. He has contended that as no charge has been framed by the learned Magistrate this Court should not transfer the matter to the Court of Session. In. 91 and 92 on his file." Keeping the aforesaid principles in view, let me proceed to deal with the contentions of Mr. Verma, learned counsel for the accused-respondent 1. He has contended that as no charge has been framed by the learned Magistrate this Court should not transfer the matter to the Court of Session. In. this regard I may refer to the decision rendered in the case of P. C. Gulati v. Lajya Ram: AIR 1966 SC 595 wherein, their Lordships repelling the submission that the Court of Session is not competent to take cognizance of an offence as a Court of original jurisdiction even after an order of transfer passed by the High Court held as follows :- "A consideration of the provisions of the various sections in Part B or Chapter XV of the Code dealing with initiation of proceedings also makes out the difference between the taking of cognizance of a case and the subsequent inquiry and trial of the offences of which cognizance has been taken. Section 190 provides that Magistrate can take cognizance of a case in either of the three ways mentioned in sub-section (1). Section 191 provides for the transfer of commitment of the case in which the Magistrate has taken cognizance of the offence under sub-section (1) (c) of S. 190 i.e. on information received from any person other than a police officer or upon his own knowledge or suspicion that an offence has been committed, if the accused objects to being tried by that Magistrate. The provisions of this section make a distinction between the taking of cognizance of an offence and taking of cognizance of an offence and its subsequent trial by that Magistrate or by another Court. Similarly, S. 192 provides for the transfer of a case, of which the Magistrate mentioned in the section has taken cognizance for inquiry or trial, no another Magistrate subordinate to the particular Magistrate. Similarly, S. 192 provides for the transfer of a case, of which the Magistrate mentioned in the section has taken cognizance for inquiry or trial, no another Magistrate subordinate to the particular Magistrate. The language indicates that the Magistrate or to whom the case is to be transferred has not to take cognizance of case afresh but has simply to proceed with the enquiry or trial of the case, section 193 is the section which we have considered and, in the context of the various sections, the taking of cognizance of an offence as a Court of original jurisdiction must amount to the initiation of the proceedings for the first time in a Court and not in the subsequent enquiry or trial necessary for the disposal of the case. The other sections in this part simply provide restrictions for the taking of cognizance of offences in certain circumstances." And again. "We are, therefore, of the opinion that the further proceedings by the Court of Session in a case transferred to it by the High Court are not barred by S. 193 of the Code." In the said decision their Lordships further held that there is no difficulty in the trial of an accused by Court of Session if a case is transferred to it by the High Court from the Court of a Magistrate. 9. The other submission of Mr. Verma, is that the right of appeal of the accused would be affected if the trial is held by a Court of Session. This contention is devoid of any substance inasmuch as the right of appeal of the accused remains unaffected as he can prefer an appeal to this Court if he is affected by the judgment in trial. 10. From the preceding analysis, it clearly flows that for achieving the ends of justice, to avoid anomalous and contrary findings and to lessen harassment the cases and counter cases can be directed to be tried by the one Court. In fact, in certain occasions the Courts have directed that they should be tried in quick succession by the same Judge and the judgment should be pronounced at one and the same time after completing hearing of both the cases. In fact, in certain occasions the Courts have directed that they should be tried in quick succession by the same Judge and the judgment should be pronounced at one and the same time after completing hearing of both the cases. I have already held that a single trial for both the offences is not called for in the facts and circumstances of the case but it is desirable that both the cases are tried by the same Judge. The principle which has been evolved by various Courts to deal with a case and a counter case, in my opinion, the same can be applied to the present case keeping in view its own peculiarity. Mr. Verma has strenuously urged that as the charge has not been framed the same should not be clubbed with the Sessions Case. The question of clubbing or proceeding in a single trial does not arise. What is required to be done is that both the cases should be tried and disposed of by the same Judge. 11. Keeping in view the entire gamut of facts, in exercise of power of this Court under section 407 read with section 482 of the Code, I direct as follows:-- I. The complaint case forming subject matter of criminal case No.1957/96 instituted for offence under section 497 IPC pending in the Court of Judicial Magistrate, First Class, Bhopal, is transferred to the Court of Sessions Judge, Bhopal. II. The learned Sessions Judge shall consider the question of framing of charge relating to offence under section 497 IPC, and if he is satisfied that the charge is to be framed, he would frame such charge and proceed with the trial. III. S.T. No. 77/95 and the transferred case (if charge is framed) shall be tried in quick succession and after completing the hearing, the judgments of both the cases should be pronounced on the same day. 12. With the aforesaid directions, the Misc. Criminal Case is disposed of.