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2002 DIGILAW 95 (ORI)

Ramakanta Patra v. State of Orissa

2002-02-14

B.P.DAS

body2002
JUDGMENT B. P. DAS, J. — This application arises out of an order passed by the learned Sessions Judge, Balasore in G. R. Case No. 1194 of 1997, corresponding to S.T. Case No. 98 of 2001 in transferring the same to the Court of Judicial Magistrate, Basudevpur. 2. The case of the petitioner is that he is an accused in G.R. Case No. 1195 of 1997 for the offences under Section 148/149/452/323/324/326/307/379, I.P.C., which was subsequently turned to Section 302, I.P.C. The petitioner is also the informant in G. R. Case No. 1194 of 1997, wherein the informant in the other case, was charged for commission of the offfences punisha¬ble under Sections 341/323/324, I.P.C. read with Section 34, I.P.C. 4. G. R. Case No. 1195 of 1997 being exclusively triable by the Court of Session, the learned Magistrate committed the said case to the Court of learned Sessions Judge, Balasore which was subsequently registered as S.T. No. 60/99/2001 and the learned Sessions Judge transferred the said record to the file of learned Addl. Sessions Judge, for trial. 5. Learned Magistrate by his order dated 28.1.1999 was pleased to observe that G. R. Case No. 1194 of 1997 is a counter case to G. R. Case No. 1195 of 1997 and transferred the same to the Court of the learned Sessions Judge for trial. Learned Ses¬sions Judge in turn by his order dated 9.10.2001 sent back the record of G. R. Case No. 1194 of 1997 to the learned J.M.F.C., Basudevpur for disposal according to law as the same was not triable exclusively by the Court of Session relying upon a judg¬ment of this Court rendered in Rama Chandra Patal v. State of Orissa and others, reported in [*(1998) 15 OCR 100] and Budhadev Panda v. State of Orissa and others, reported in [(1995) 8 OCR, 104.] 6. The petitioner in this application challenges the aforesaid order on the ground that the learned Sessions Judge is not justified in returning back the records of G. R. Case No. 1194 of 1997 to the Court of learned Magistrate on the face of finding of the learned Magistrate that both the cases are counter to each other, and should be tried together. 7. 7. Now the question arises whether in the given circum¬stances the recourse taken by the Magistrate by committing a counter case to the Court of Session where the other case is pending is wrong and only recourse available is under Section 407, I.P.C. 8. The law is well settled by various judicial pronounce¬ments that when two cases are cross-cases or counter to each other and one of such is triable by a Court of Session and the other is triable by a Magistrate, then the other case is to be committed to the Court of Session to be tried by that Court one after the other. In this regard, I may refer to a decision of the Apex Court in the case of Nathilal and others v. State of U.P. and another, reported in 1990 Supreme Court Cases (Crl.) 638, wherein the observation of the Apex Court is as follows : “2. 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 the 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. 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 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." 9. In the present case the trial Court has already come to the conclusion that G.R. Case No. 1194 of 1997 triable by the Judicial Magistrate has to be treated to be a counter case to G.R. Case No. 1195 of 1997, which is triable by the Court of Session. In the present case the trial Court has already come to the conclusion that G.R. Case No. 1194 of 1997 triable by the Judicial Magistrate has to be treated to be a counter case to G.R. Case No. 1195 of 1997, which is triable by the Court of Session. So there is no dispute that both the cases are to be tried together. Now the question arises whether the Magistrate can commit the case which is triable by him to the Court of Session where the other case is pending. In this regard I may refer to a judgment of this Court, reported in (1995) 8 OCR, 104 : (Budhadev Panda v. State of Orissa and another), wherein this Court while deciding the issue of this nature came to the following conclusion with regard to the power of High Court to transfer cases and appeals under Section 407, Cr.P.C. “..........Therefore, High Court alone can exercise the power to the above effect and the Court of Session has no power to direct the commitment of a case pending before a subordinate Magistrate to the Court of Session and so proviso to Sub-sec. (2) does not apply to a matter of this nature. If a case and counter case are tried and disposed of by the same Court, and heard by one officer, that will tend the general convenience of the par¬ties as also the witnesses besides avoiding conflict of judg¬ments. In another case reported in (2000) 18 OCR 174 : (Pitabas Behera and others v. State of Orissa), this Court while interpreting the provisions of Section 407, Cr.P.C. - mean¬ing of ‘cross-cases’ and ‘counter cases’, in paragraphs 4 and 5 of the judgment held as follows : “4.......When there is fight between two rival factions which gives rise to registration of two cases one against each of the rival factions, such cases, in common parlance are termed as ‘cross-cases’, ‘counter cases’ or ‘case and counter case’, 5. The Code does not specifically provide for the manner in which trial of such cases should be undertaken. Judicial pro¬nouncement in that respect is however consistent that as far as practicable such cross-cases should be tried and decided by the same trial Court. The Code does not specifically provide for the manner in which trial of such cases should be undertaken. Judicial pro¬nouncement in that respect is however consistent that as far as practicable such cross-cases should be tried and decided by the same trial Court. The precedent further states that both the cross cases should be tried one after the other and judgments in both the cases be pronounced after trial of the later case is over. In that the caution which the trial Court must bear in mind is that, each of the cross-cases be decided on its own merit and the basis of evidence in respective cases. In other words evi¬dence available in one case cannot be referred to in any manner while deciding the counter case and the vice-versa. 10. Mr. Dhal, learned counsel for the petitioner in course of the argument submits that even though the case cannot be committed in accordance with Section 209 of the Code, yet the Magistrate has power to commit the case to the Court of Session under Section 323, Cr.P.C. In this regard the attention of this Court has been drawn to a judgment of the apex Court, reported in 2001 Supreme Court Cases (Crl.) 387 (Sudhir and others v. State of M.P.), wherein it is held thus : “Where one of the two cases (relating to the same incident) is charge-sheeted or complained of, involves offences or offence exclusively triable by a Court of Session, but none of the of¬fences involved in the other case is exclusively triable by the Sessions Court, the Magistrate has no escape from committing the former case to the Sessions Court as provided in Section 209, Cr.P.C. Though, the next case cannot be committed in accordance with Section 209 of the Code, the Magistrate has, nevertheless, power to commit the case to the Court of Session, Section 323 is incorporated in Cr.P.C. to meet similar cases also.” Elaborately dealing with the matter in paragraphs 12 and 13 of the aforesaid judgment, the apex Court held as follows : “12. How to implement the said scheme in a situation where one of the two cases (relating to the same incident) is charge-sheeted or complained of, involves offences or offence exclusive¬ly triable by a Court of Session, but none of the offences in¬volved in the other case is exclusively triable by the Sessions Court. How to implement the said scheme in a situation where one of the two cases (relating to the same incident) is charge-sheeted or complained of, involves offences or offence exclusive¬ly triable by a Court of Session, but none of the offences in¬volved in the other case is exclusively triable by the Sessions Court. The Magistrate before whom the former case reaches has no escape from committing the case to the Sessions Court as provided in Section 209 of the Code. Once the said case is committed to the Sessions Court, thereafter it is governed by the provisions subsumed in Chapter XVIII of the Code. Though, the next case cannot be committed in accordance with Section 209 of the Code, the Magistrate has, nevertheless, power to commit the case to the Court of Session, albeit none of offences involved therein is exclusively triable by the Sessions Court. Section 323 is incor¬porated in the Code to meet similar cases also. That section reads thus : “323. If, in any inquiry into an offence or a trial before a Magistrate it appears to him at any stage of the proceedings before signing judgment that case is one which ought to be tried by the Court of Session, he shall commit it to that Court under the provisions hereinbefore contained and thereupon the provi¬sions of Chapter XVIII shall apply to the commitment so made.” 13. The above section does not make an inroad into Section 209 because the former is intended to cover cases to which Sec¬tion 209 does not apply. When a Magistrate has committed a case on account of his legislative compulsion by Section 209, its cross-case, having no offence exclusively triable by the Sessions Court, must appear to the Magistrate as one which ought to be tried by the same Court of Session. We have already adverted to the sturdy reasons why it should be so. Hence, the Magistrate can exercise the special power conferred on him by virtue of Section 323 of the Code when he commits the cross-case also to the Court of Session. Commitment under Sections 209 and 323 might be through two different channels, but once they are committed their subse¬quent flow could only be through the stream channelised by the provisions contained in Chapter XVIII.” 11. Commitment under Sections 209 and 323 might be through two different channels, but once they are committed their subse¬quent flow could only be through the stream channelised by the provisions contained in Chapter XVIII.” 11. In view of the aforesaid decisions of the apex Court, the learned Magistrate is not wrong in committing the case to the Court of Session, which can be deemed to have been done under Section 323 of the Criminal Procedure Code. Accordingly, the impugned order dated 9.10.2001 passed by the Sessions Judge, Balasore is set aside. Learned Sessions Judge is directed to take effective steps for trial of G. R.Case No. 1194 of 1997 along with G. R.Case No. 1195 of 1997. The Criminal Revision is disposed of accordingly. Crl. Revision disposed of.