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2001 DIGILAW 299 (PNJ)

Amrik Singh v. State of Punjab

2001-03-05

S.S.NIJJAR

body2001
JUDGMENT S.S. Nijjar, J. (Oral) - This petition is filed under Section 482 of the Code of Criminal Procedure for quashing of order dated 6.10.2000 (Annexure P.5) passed by the learned Additional Sessions Judge, Kapurthala and for a direction that case titled "Amrik Singh v. Jarnail Singh" pending in the Court of the learned Chief Judicial Magistrate Kapurthala under Sections 307/326/325/354/355 Indian Penal Code be clubbed with the case titled "State of Punjab v. Malkiat Singh" arising out of FIR No. 43 dated 13.11.1997 lodged at Police Station Dhilwan under Sections 148/186/333/353/332/379/149 Indian Penal Code pending in the Court of the learned Additional Sessions Judge, Kapurthala, since both the cases arise from the same incident. 2. Learned counsel for the petitioner relies on a judgment of the Supreme Court in the case of P.C. Gulati v. Lajya Ram and others, AIR 1966 Supreme Court 595 and submits that this Court has the power to transfer the case pending in the Court of a Magistrate to the Sessions Court in the interest of justice. 3. Respondent Nos. 2 and 3 who are Police personnel had been posted at Police post Bhandal Bet, P.S. Dhilwan, District Kapurthala. They had assaulted the petitioner and other villagers under the influence of liquor on 12.11.1997 at around 10.00 p.m. in the area of village Kishan Singh Wala. Instead of proceeding against the accused Police men, FIR No. 43 dated 13.11.1997 has been registered against the petitioner and nine other persons under Sections 353/332/379/386/148/149 Indian Penal Code and under the Arms Act. The petitioner and other persons were arrested and subsequently released on bail. 4. Since the Police was not taking any action on the complaint made by the petitioners, they filed the complaint in Court under Sections 307/326/325/354/355 Indian Penal Code on 15.1.1998 against respondent Nos. 2 and 3. After recording the preliminary evidence, these respondents have been summoned by order dated 9.11.1998. The petitioners made an application before the Additional Sessions Judge, Kapurthala on 8.9.2000 praying that the complaint case titled "Amrik Singh v. Jarnail Singh" be tried along with "State v. Malkiat Singh and others". This application has been dismissed by the learned Additional Sessions Judge, Kapurthala by order dated 6.10.2000, on the ground that the Court has no jurisdiction to direct the Additional Chief Judicial Magistrate, Kapurthala to commit a particular case. This application has been dismissed by the learned Additional Sessions Judge, Kapurthala by order dated 6.10.2000, on the ground that the Court has no jurisdiction to direct the Additional Chief Judicial Magistrate, Kapurthala to commit a particular case. The petitioners also moved an application before the Judicial Magistrate First Class, Kapurthala for sending the complaint to the Court of the Additional Sessions Judge to be tried with the cross case. No order has been passed in that application. 5. It is not disputed that both the complaint case and the FIR arising out of the same incident can well be said to be cross cases between the same parties. Therefore, undoubtedly, it would be in the interest of justice that both the cases are tried together by the same Court. This apart the Supreme Court in P.C. Gulatis case (supra) has considered a similar objection taken in that case. It was urged that the High Court has no power to transfer the case being tried by the Magistrate to the Sessions Court. That case was decided under Section 526 of the Code of Criminal Procedure, 1898. The relevant part being Section 526 (a) to (e) (1)(ii) was as under :- "526(1) Whenever it is made to appear to the High Court :- (a) that a fair and impartial inquiry or trial cannot be had in any Criminal Court subordinate thereto, or ........................................ (e) that such an order is expedient for the ends of justice, or is required by any provision of this Code; it may order - (i) ..................................... (ii) that any particular case or appeal or class of cases or appeals, be transferred from a Criminal Court subordinate to its authority to any other such Criminal Court of equal or superior jurisdiction; ..............." 6. After considering the various provisions of the Code of Criminal Procedure, it was held that the Sessions Court would be competent to conduct the trial in a case which has been transferred from the Court of a Magistrate. The Supreme Court observed as under :- "Para (3) ........................... (iv) The language of clause (ii) is wide enough to provide for an order transferring a case from the Court of a Magistrate to a Court of Sessions as both the Courts are subordinate to the High Court and the Court of Session is a Court superior in jurisdiction to that of a Magistrate. (iv) The language of clause (ii) is wide enough to provide for an order transferring a case from the Court of a Magistrate to a Court of Sessions as both the Courts are subordinate to the High Court and the Court of Session is a Court superior in jurisdiction to that of a Magistrate. (13) We, therefore, do not consider that there arises any difficulty in the trial of the accused by the Court of Session in a case transferred to it by the High Court from the Court of a Magistrate. (25) We are, therefore, of opinion that the High Court is competent under Section 526(1)(ii) of the Code to transfer a case from the Court of a Magistrate to the Court of the Sessions Judge." 7. Section 407 of the Code of Criminal Procedure (hereinafter referred to as the Code) contains identical provisions. The relevant part being Section 407(1)(c)(ii) reads as under :- 407. Power of High Court to transfer cases and appeals. - (1) Whenever it is made to appear to the High Court - (a) that a fair and impartial inquiry or trial cannot be had in any Criminal Court subordinate thereto, or (b) that some question of law of unusual difficulty is likely to arise, or (c) that an order under this section is required by any provision of this Code or will tend to the general convenience of the parties, or witnesses or is expedient for the ends of justice, it may order - (i) .................. (ii) that any particular case or appeal, or class of cases or appeals, be transferred from a Criminal Court subordinate to its authority to any other such Criminal Court of equal or superior jurisdiction; ............................" 8. The aforesaid provision being pari materia to the provisions which were being considered by the Supreme Court, I see no impediment in the way of this Court to transfer the case pending in the Court of the Chief Judicial Magistrate, Kapurthala to the Court of the Additional Sessions Judge, Kapurthala, in exercise of the powers under Section 407(1)(c)(ii) read with Section 482 of the Code of Criminal Procedure. 9. A perusal of the other relevant provisions of the Code would also lead to the same conclusion. The Supreme Court in the case of Sudhir v. State of M.P., 2001 AIR SCW 491, again considered a similar situation. 9. A perusal of the other relevant provisions of the Code would also lead to the same conclusion. The Supreme Court in the case of Sudhir v. State of M.P., 2001 AIR SCW 491, again considered a similar situation. A case and cross case were both committed to the Court of Sessions as both involved offences exclusively triable by the Sessions Court. But after hearing preliminary arguments, the Sessions Judge felt that in one case no offence triable exclusively by the Court of Sessions is involved, whereas in the other case a charge for offences including one triable exclusively by the Sessions Court could be framed. He, therefore, transferred the former case for trial to the Chief Judicial Magistrate as provided under Section 228(1) of the Code. Ultimately, the matter reached the Supreme Court which considered the question as to whether it is necessary in such a situation that the Sessions Court should transfer the former case to the Chief Judicial Magistrate, for trial as envisaged under Section 228(1) of the Code. Section 228(1) of the Code is as under :- "If after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which - (a) is not exclusively triable by the Court of Session, he may, frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate, and thereupon the Chief Judicial Magistrate, shall try the offence in accordance with the procedure for the trial of warrant-cases instituted on a police report; (b) is exclusively triable by the Court, he shall frame in writing a charge against the accused." Considering the aforesaid provisions, the Supreme Court observed as follows :- "15. In this context, we may point out that a Sessions Judge has the power to try any offence under the Indian Penal Code. It is not necessary for the Sessions Court that the offence should be one exclusively triable by a Court of Sessions. This power of the Sessions Court can be discerned from a reading of Section 26 of the Code. It is not necessary for the Sessions Court that the offence should be one exclusively triable by a Court of Sessions. This power of the Sessions Court can be discerned from a reading of Section 26 of the Code. When it is realised that the Sessions Judge has the power to try any offence under the Indian Penal Code and when a case involving offence not exclusively triable by such Court is committed to the Court of Sessions, the Session Judge has to exercise a discretion regarding the case which he has to continue for trial in his Court and the case which he has to transfer to the Chief Judicial Magistrate. 16. The employment of the word "may" at one place and the word "shall" at another place in the same sub-section unmistakably indicates that when the offence is not triable exclusively by the Sessions Court it is not mandatory that he should order transfer of the case to the Chief Judicial Magistrate after framing a charge. In situations where it is advisable for him to try such offence in his Court there is no legal obligation to transfer the case to the Chief Judicial Magistrate. One of the instances for not making the transfer is when a case and counter case have been committed to the Sessions Court and one of those cases involves an offence exclusively triable by the Sessions Court and the other does not involve any such offence." 10. Earlier in the case of Nathi Lal v. State of U.P., 1990 Supp. SCC 145, the practice of trying cross cases one after other has been approved by the Supreme Court. In Sudhirs case (supra), the Supreme Court has observed that it is a salutary practice, when two criminal cases relate to the same incident, they are tried and disposed of by the same Court by pronouncing judgment on the same day. The method approved in Nathi Lals case (supra) has been reiterated in Sudhirs case (supra), which is as under :- "We think that the fair procedure to adopt in a matter like the present where there are cross cases, is to direct that the same learned Judge must try both cross cases one after the other. After the recording of evidence in one case is completed, he must hear the arguments but he must reserve the judgment. After the recording of evidence in one case is completed, he must hear the arguments but he must reserve the judgment. Thereafter he must proceed to hear the cross case and after recording all the evidence he must hear the arguments but reserve the judgment in that case. The same learned Judge must thereafter dispose of the matters by two separate judgments. In deciding each of the cases, he can rely only on the evidence recorded in that particular case. The evidence recorded in the cross case cannot be looked into. Nor can the Judge be influenced by whatever is argued in the cross case. Each case must be decided on the basis of the evidence which has been placed on record in that particular case without being influenced in any manner by the evidence or arguments urged in the cross case. But both the judgments must be pronounced by the same learned Judge one after the other." 11. Consequently, the petition is allowed. Order dated 6.10.2000 (Annexure P.5) passed by the learned Additional Sessions Judge, Kapurthala is hereby quashed. A direction is issued that the case titled "Amrik Singh v. Jarnail Singh" pending in the Court of the learned Chief Judicial Magistrate, Kapuarthala under Sections 307/326/325/354/355 Indian Penal Code be clubbed and tried along with case titled "State of Punjab v. Malkiat Singh" arising out of FIR No. 43 dated 13.11.1997 registered at Police Station Dhilwan under Sections 148/186/333/353/332/379/149 Indian Penal Code pending in the Court of learned Additional Sessions Judge, Kapurthala. The trial Court is directed to try and dispose of the first case and the second case in the manner set out in Nathi Lals case (supra). No costs. Petition allowed.