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2009 DIGILAW 2277 (ALL)

BIRBAL YADAV v. STATE OF U. P.

2009-05-19

S.S.CHAUHAN

body2009
JUDGMENT S.S. CHAUHAN, J. – The present petition arises out of the order dated 28.1.2009 passed by the learned Additional Sessions Judge (Court No.5), Gonda. 2. Initially the case was initiated on the 'basis of the F.I.R. lodged on 31.10.2005 at Crime No. 221 of 2005. The petitioner also filed a NCR at Crime No. 67 of 2005. In both the F.I.Rs. the Investigating Officer investigated the matter and submitted charge-sheet. After submission of charge-sheet the learned Magistrate committed both the cases to the Court of Sessions. Thereafter, complainant of Crime No. 221 of 2005 moved an application before the learned Sessions Judge with the prayer that the two cases are not deemed to be connected cases as the time and the place of the incident is varying. The learned Sessions Judge after hearing the parties passed the impugned order whereby he came to the conclusion that Crime No. 221 of 2005 being Sessions Trial No. 85 of 2008 was altogether an independent and distinct offence as compared to the Sessions Trial No. 1 of 2009 in NCR No. 67 of 2005. 3. Submission of learned Counsel for the petitioner is that except for variance of the time and place the date of the incident is the same. The inter se parties have alleged that they were attacked upon by the either of the accused persons. He further submits that minor difference in the time and the place will not lead to the conclusion that both the incidents are separate and, therefore, are to be tried separately. He also submits that there is difference of only half an hour in regard to the incident, but the date remains the same. It is submitted that the question as to whether the incident has taken place at ‘A’ place or at ‘B’ place as alleged by the, inter se parties will be looked into in the trial after the evidence is adduced. 4. Learned Counsel for the opposite party No. 4 on the other hand has submitted that the incident in question is separate and, therefore, it cannot be tried together and the learned Sessions Judge has committed no illegality in separating the trials and directing for separate trials. 5. I have heard the learned Counsel for the parties and gone through the record. 6. 5. I have heard the learned Counsel for the parties and gone through the record. 6. The F.I.R. was lodged at Crime No. 221 of 2005 on 31.10.2006 whereas the NCR was lodged at Crime No. 67 of 2005 on the next day i.e. 1.11.2005. The allegations made in both the F.I.Rs. go to indicate that certain deviation has been made in regard to the place of occurrence and the time but it is to be noted that the incident has taken place on the same day. A party lodging a cross F.I.R. keeps in mind its defence and in majority of cases it is noticed that such a party is vigilant enough to make an attempt to change the place of the occurrence to make out a different case as alleged by the other side. The question as to whether the occurrence has taken place at ‘A’ place or at ‘B’ place will be decided after the evidence is adduced in the trial. The nature of the allegations made in the two F.I.Rs. go to indicate that they cannot be termed as altogether different and separate offence. 7. Learned Counsel for the petitioner places reliance upon the following cases : Sudhir and others v. State of M.P., State of M.P. v. Mishrilal (Dead) and others, and Nathi Lal and others v. State of U.P. and others. In the case of Sudhir and others (supra) the Apex Court held as under: “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 exclusively triable by a Court of Sessions, but none of the offences involved 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 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. 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: “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 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.” While dealing with the similar situation the Apex Court in the case of State of M.P. v. Mishrilal (Dead) and others (supra) held as under : “Cross-cases be tried together. Undisputedly, accused Mishrilal lodged the report to the police vide Ex. D-8 over the same incident happened on 5.3.1987, in which he had clearly stated the injuries were sustained by him and his son Madhusudan at the hands of prosecution party. It is also not disputed that on the strength of the complaint lodged by Mishrilal, investigation was also carried out and challan was filed namely crime case No. 52/87 under sections 147, 148, 149 and 324, I.P.C. against the prosecution party which is pending for disposal before the learned Judicial Magistrate First Class. In the said challan, the prosecution party is stated to be an aggressor. This Court in Nathilal v. State of U.P. pointed out the procedure to be followed by the Trial Court in the event of cross-cases. It was observed thus: “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. 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.” In the instant case, it is undisputed, -that the investigating officer submitted the challan on the basis of the complaint lodged by the accused. Mishrilal in respect of the same incident. It would have been just fair and proper to decide both the cases together by the same Court in view of the guidelines devised by this Court in Natlzilal's case (supra). The cross-cases should be tried together by the same Court irrespective of the nature of the offence involved. The rational behind this is to avoid the conflicting judgments over the same incident because if cross-cases are allowed to be tried by two Courts separately there is likelihood of conflicting judgments. In the instant case, the investigating officer submitted the challan against both the parties. Both the complaints cannot be said to be right. Either of them must be false, in such a situation, legal obligation is cast upon the investigating officer to make an endeavour to find out the truth and to cull out the truth from the falsehood. Unfortunately, the investigating officer has failed to discharge the obligation, resulting in grave miscarriage of justice.” 8. Learned Counsel for the petitioner, on the strength of the aforesaid cases submits that both the trials are to be tried together and they cannot be termed as distinct and separate offences. The law laid down by the Apex Court is clear and, therefore, the order passed by the learned Additional Sessions Judge, in my opinion, does not appear to be correct and hence the same is liable to be set aside. 9. Petition is accordingly allowed. The law laid down by the Apex Court is clear and, therefore, the order passed by the learned Additional Sessions Judge, in my opinion, does not appear to be correct and hence the same is liable to be set aside. 9. Petition is accordingly allowed. The order dated 28.1.2009 is hereby set aside and the matter is remitted to the Additional Sessions Judge with the direction that both the trials be tried together. Cri Petition Allowed.