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2005 DIGILAW 369 (PNJ)

Phool Singh v. State Of Haryana

2005-03-11

VINEY MITTAL

body2005
Judgment Viney Mittal, J. 1. The present petition under Section 482 of the Code of Criminal Procedure has been filed by the petitioner seeking a direction for the clubbing of proceedings in the cases FIR No. 106 dated August 19, 2000 under Sections 307, 325 read with Section 34 of the Indian Penal Code, Police Station Radaur pending before Shri S.S. Lamba, Additional Sessions Judge, Jagadhri and a complaint case No. 452 dated March 4, 2001, under Section 307, 452, 323, 324, 148 and 149 of the Indian Penal Code, Police Station Radaur pending before Shri R.S. Dhanda, Judicial Magistrate I Class, Jagadhri. In the complaint case, present respondent Nos. 2 to 7 have been summoned under Sections 323/324/148 and 149 of the Indian Penal Code. 2. It is not in dispute that on account of an occurrence dated August 19, 2000, the petitioner Phool Singh along with three others has been challaned and is facing trial under Sections 307, 325 read with Section 34 of the Indian Penal Code. The aforesaid trial is pending in the Court of Shri S.S. Lamba, Additional Sessions Judge, Jagadhri. 3. Petitioner, Phool Singh has also filed a criminal complaint No. 452 dated March 21, 2001 in the Court of Judicial Magistrate I Class, Jagadhri. The aforesaid complaint is also based upon the aforesaid occurrence dated August 19, 2000. As a matter of fact, petitioner, Phool Singh, has set up a counter version and on that basis has filed the aforesaid complaint against Ram Sarup, Jagmohan, Sheeshpal and Sukhminder. In the aforesaid complaint, after recording of the preliminary evidence, the learned Judicial Magistrate Ist Class, Jagadhri through his summoning order dated February 5, 2004 has summoned the aforesaid accused for commission of offences punishable under Sections 323, 324, 452, 148, 149 of the Indian Penal Code. A copy of the aforesaid summoning order has been appended as Annexure P/2 with the present petition. 4. The proceedings before the learned Additional Sessions Judge arising out of FIR No. 106 dated August 19, 2000 against the petitioner and three others are at the stage of defence evidence. At that stage, the petitioner filed an application before the Additional Sessions Judge to stay the aforesaid proceedings till the matter in the complaint filed on behalf of the petitioner matures for arguments and to club the proceedings in the two cases. At that stage, the petitioner filed an application before the Additional Sessions Judge to stay the aforesaid proceedings till the matter in the complaint filed on behalf of the petitioner matures for arguments and to club the proceedings in the two cases. The aforesaid application filed by the petitioner has been rejected by the learned Additional Sessions Judge vide order dated April 26, 2004. A copy of the aforesaid order dated April 26, 2004 has been appended as Annexure P-4 with the present petition. 5. The petitioner has felt aggrieved against declining of his prayer and has approached this Court through the present petition. It has been claimed that the two proceedings i.e. one in FIR No. 106 dated August 19, 2000 and the other in complaint case No. 452 dated March 4, 2001 are liable to be taken up together and decided by one Court. 6. I have heard the learned counsel for the parties and with their assistance have also gone through the record of the case. 7. Shri D.N. Ganeriwala, learned counsel appearing for the petitioner has stated that both the aforesaid proceedings had been initiated by the respective parties on the basis of the same occurrence dated August 19, 2000 and, as such, it was in the interest of justice as well as with a view to avoid conflicting judgments that the proceedings be taken up together and be decided by one Court. In support of the aforesaid contention, learned counsel has placed reliance upon a judgment of this Court in Ajmer Singh v. Thakur Singh and another, 1974 Chandigarh Law Reporter 503 and a judgment of the Apex Court in Sudhir Singh v. State of Maharashtra, 2001(1) RCR(Crl.) 743 (SC) : 2001 Recent Criminal Cases 693 (SC). After hearing the learned counsel for the parties, I find merit in the contention of the learned counsel for the petitioner. The authorities relied upon by the learned counsel fully support the aforesaid contention. 8. Some observations made by the Apex Court in Sudhirs case (supra) may be noticed : "9. 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 judgments on the same day. 8. Some observations made by the Apex Court in Sudhirs case (supra) may be noticed : "9. 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 judgments on the same day. Such two different versions of the same incident resulting in two criminal cases are compendiously called "case and counter case" by some High Courts and "cross-cases" by some other High Courts. Way back in nineteen hundred and twenties a Division Bench of the Madras High Court (Waler and Cornish, JJ.) made a suggestion (In Re Goriparthi Krishtamma, 1929 Madras Weekly Notes 881) that "a case and counter case arising out of the same affair should always, if practicable, be tried by the same Court, and each party would represent themselves as having been the innocent victims of the aggression of the other." 10. Close to its heels Jackson, J., made an exhortation to the then legislature to provide a mechanism as a statutory provision for trial of both cases by the same Court (vide Krishna Pannadi v. Emperor, AIR 1930 Madras 190). The learned Judge said thus : "There is no clear law as regards the procedure in counter cases, a defect which the legislature ought to remedy. It is a generally recognized rule that such case should be tried in quick succession by the same Judge, who should not pronounce judgment till the hearing of both cases is finished." 11. We are unable to understand why the legislature is still parrying to incorporate such a salubrious practice as a statutory requirement in the Code. The practical reasons for adopting a procedure that such cross-cases shall be tried by the same Court, can be summarised thus : (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. 12. In fact, many High Courts have reiterated the need to follow the said practice as a necessary legal requirement for preventing conflicting decisions regarding one incident. This Court has given its approval to the said practice in Nathi Lal and others v. State of U.P. and another, 1990 Supp. SCC 145. 12. In fact, many High Courts have reiterated the need to follow the said practice as a necessary legal requirement for preventing conflicting decisions regarding one incident. This Court has given its approval to the said practice in Nathi Lal and others v. State of U.P. and another, 1990 Supp. SCC 145. The procedure to be followed in such a situation has been succinctly delineated in the said decision and it can be extracted here : "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. 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." 13. 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 offence or offences exclusively triable by a Court of Sessions, but none of the offences involved in the other cases 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. 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 Sessions, albeit none of the offences involved therein is exclusively triable by the Sessions Court. Section 323 is incorporated in the Code to meet similar cases also. That section reads thus : "If, in any inquiry into an offence or trial before a Magistrate, it appears to him at any stage of the proceedings before signing judgment that the 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 provisions of Chapter XVIII shall apply to the commitment so made." 14. The above section does not make an inroad into Section 209 because the former is intended to cover cases to which Section 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 Sessions. 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 Sessions. Commitment under Section 209 and 323 might be through two different channels, but once they are committed their subsequent flow could only be though the stream channelised by the provisions contained in Chapter XVIII. 15. Now we have to deal with powers of the Sessions Court in the light of Section 228 of the Code which says that when the Sessions Court, after hearing under Section 227, is of opinion that none of the offences presumed to have been committed by an accused is triable by a Court Sessions he is to transfer the case for trial to the Chief Judicial Magistrate. 16. 16. 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. 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 Sessions 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. For this purpose we have to read and understand the scope of Section 228(1) in the light of the above legal position. The sub-section is extracted below : "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." 17. 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 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 case involved an offence exclusively triable by the Sessions Court and the other does not involve any such offence." 9. 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 case involved an offence exclusively triable by the Sessions Court and the other does not involve any such offence." 9. In view of the law laid down by the Apex Court, let us examine the facts of the present case. Since the aforesaid two cases i.e. one before the learned Additional Sessions Judge and the other before the learned Judicial Magistrate Ist Class have been initiated by the respective parties on the basis of the same incident of August 19, 2000, therefore, it would be appropriate if both the aforesaid cases are decided by one Court and the judgment is pronounced simultaneously by the Court on the same date. This, however, shall not mean that the evidence in one case is to be read in the other case or that the proceedings in two cases are to be clubbed together. As observed by the Apex Court in Sudhirs case (supra), the learned Judicial Magistrate Ist Class shall commit the proceedings in the complaint case for trial by the learned Additional Sessions Judge. The learned Additional Sessions Judge shall thereafter proceed with the trial in the complaint case in accordance with law. After both the cases are mature for arguments, the arguments in the two cases shall be heard on the same date and shall be disposed of as per the law laid down in Sudhirs case (supra). 10. The present petition is, accordingly, disposed of with the aforesaid directions. 11. A copy of this order be also sent to the Court of Shri R.S. Dhanda, learned Judicial Magistrate Ist Class, Jagadhri at Yamuna Nagar where complaint No. 452 dated March 4, 2001 is pending for necessary compliance.