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2007 DIGILAW 291 (CAL)

BHABATARAN MAHATO v. STATE OF WEST BENGAL

2007-04-16

SADHAN KUMAR GUPTA

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( 1 ) LEARNED Advocate for the petitioner and the Learned Advocate for the state are present. ( 2 ) AFFIDAVIT of service shows that notice was sent to the defacto-complainant by registered post with acknowledgement due, but in spite of that he is not coming forward to contest the revisional application. Under such circumstances, the revisional application is taken up for hearing. ( 3 ) HEARD the learned Advocates for both the sides. ( 4 ) LEARNED Advocate for the petitioner submits that over the self-same incident two cases namely G. R. Case No. 114 of 2003 and c. R. case No. 113 of 2003 were instituted. After completion of the investigation G. R. case No. 113 of 2003 was committed to the court of session as the prima facie case under Section 307, IPC was made out and it is pending for trial before the learned Additional Sessions Judge. It is submitted that g. R. Case No. 114 of 2003 which also arose out of the self-same incident and which is the counter case of other case, is pending before the learned Magistrate as an offence under Section 326, Cr. P. C. has been prima facie made out. Learned Advocate for the petitioner submits that as both the cases arose out of the self same incident, so a prayer was made before the learned Magistrate for sending the same to the Court of the learned Additional Sessions Judge for trial where the other case is pending. But the learned Magistrate rejected such prayer by passing the impugned order. ( 5 ) LEARNED Advocate for the State submits that it is a fact that a case and a counter case were started in between the parties over the self-same incident and as such the law requires that both the cases should be tried by the same court one after another. ( 6 ) I have considered the submission of the learned Advocates for both the sides and also perused the decision reported in 2001 scc (Cri) 387 : (2001 Cri LJ 1072) (Sudhir v. State of M. P.) and the decision reported in 2004 C Cr LR (Cal) page 800 (Asar Sheikh v. The State of West Bengal ). ( 6 ) I have considered the submission of the learned Advocates for both the sides and also perused the decision reported in 2001 scc (Cri) 387 : (2001 Cri LJ 1072) (Sudhir v. State of M. P.) and the decision reported in 2004 C Cr LR (Cal) page 800 (Asar Sheikh v. The State of West Bengal ). It has been clearly laid down in those decisions that whenever there is a case and counter case pending in between the same parties over the self-same incident then it is desirable that both the cases should be disposed of by the same Court and the judgment should be pronounced on the same day. The Hon'ble supreme Court in the decision cited above also made it clear that if the trial of one case is concluded earlier, the learned Judge should not deliver the judgment until the counter case reaches the stage of delivery of judgment. As such, I think that in view of the legal position, as discussed above, appropriate opportunity should be given to the court below for holding the trial of both the cases one after another. ( 7 ) IN the result, the revisional application is disposed of on contest. The learned magistrate, before whom the counter case is pending, is directed to send the case record to the learned Additional Sessions judge, Fast Track Court at Jhargram so far as G. R. Case No. 114 of 2003 is concerned. After the said case record is received by the learned Additional Sessions Judge, he is directed to proceed with the trial of both the cases simultaneously and he is also directed not to deliver the judgment of other case until the trial of the other case has been concluded and the said case reaches for delivery of judgment. In other words the learned Additional Sessions Judge is directed to see that the judgment of both the cases are delivered on the same day one after another. ( 8 ) SEND a copy of this order to the Court of the learned Magistrate as well as to the learned Additional Sessions Judge, Fast track Court, Jhargram for their information and taking necessary action. ( 9 ) CRIMINAL Section is directed to supply certified copy of this order, if applied for, to the learned Advocate for the petitioner expeditiously. Order accordingly. .