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Madhya Pradesh High Court · body

2012 DIGILAW 382 (MP)

Avneesh v. State of M. P.

2012-04-09

G.D.SAXENA

body2012
ORDER G.D. Saxena, J. -1. This petition under section 482 of the Code of Criminal Procedure Code 1973 has been preferred by the petitioner against an order dated 30th September, 2011 passed by the Additional Sessions Judge, Jaura, district Morena in Cri. Rev.No. 176/20. 2. A bare reading of the documents filed and the orders impugned passed by the two courts-below, indicated that on 7th November 2011 at about 2 p.m., in front of the house of Avnish Sharma (petitioner), all the accused/respondents having armed with guns and country-made pistols reached the house of complainant and with an intention to endanger the human life, opened fire in the air. The accused were also shouting to drag the petitioner and his family-members out from their house to kill them. An FIR of the incident was lodged at the police station concerned. The counter report of the incident occurred on a same day before the house of Ramdeen Sharma, was also lodged by Om Prakash, the accused against the complainant-party on the basis of which an offence under section 307/34 of I.P.C. was lodged. As per spot map prepared in both the matters shows that the place was in between the houses of petitioner Avinash Sharma and Ramdeen Sharma. After investigation, the charge-sheets were filed before criminal courts. One trial is commenced before the Court of Judicial Magistrate and another trial after committal is commenced before the Sessions Court at Jaura. 3. By the impugned order, the learned revisional court has refused to entertain prayer of the petitioner for trial of both cases by one court. It is submitted by the learned counsel appearing for the petitioner that there are two cross-cases arise out of the same incident, firstly was registered at Crime No.162/10, for the offence punishable under section 307/34 of I.P.C. and the other was registered at Crime No.163/10 which is pending before the Judicial Magistrate First Class, Jaura, district Morena. Since one of them is exclusively triable by the Sessions court while the other is not, therefore, by moving an appropriate application under section 323 of Cr.P.C., it was prayed that both the cases be heard together by the same court. But this application was rejected up to the stage of revisional court by the court of Sessions. 4. Heard the learned counsel appearing for the petitioner as well as learned Panel Lawyer for the respondent No.1/State. But this application was rejected up to the stage of revisional court by the court of Sessions. 4. Heard the learned counsel appearing for the petitioner as well as learned Panel Lawyer for the respondent No.1/State. Also perused the relevant papers available on the record. 5. On perusal of the provision of section 323 of the Code, what could be found is that the jurisdiction, created by this section as regards the committal of a case, could be exercised by a Magistrate at any stage of the proceeding before signing of the judgment. The consideration under which the powers under section 323 of the Code could be exercised by a Magistrate is that the ”case” should appear to him to be one which ought to be tried by the court of Sessions. Here, again, the word “appears has been used by the legislature and that amply indicates that it could not be permissible for the Magistrate to commit each and every case to the court of Sessions unless he has applied his judicial mind to the facts which might be in the form of the evidence which could have been received by him during the course of the trial that he had formed an opinion that the case required to be committed to the court of Sessions. 6. The difference in the provision of sections 209 and 323 of the Code appears very clear. For exercising the powers to commit the case to the court of Sessions, the consideration for a Magistrate under section 209 of the Code is the nature of offence and its trial forum. The forum of trial of different offences have been prescribed by the legislature in the first schedule of the Code which classifies the offences under the Penal Code in various ways and also indicates as to by which court a particular offence could be triable. For reaching the conclusion that the offence is exclusively triable by the court of Sessions, the Magistrate has to go to the first schedule of the Code but, before that, he has to read and consider the facts of the case for finding out as to whether ingredients of an offence were constituted by facts presented by the police so that he could record a finding that an offence exclusively triable by the court of Sessions was made out on facts. If he could not record a finding of the above nature, then the Magistrate does not have the jurisdiction under section 209 of the Code to commit the case to the court of Sessions. 7. So far as the jurisdiction vested under section 323 of the Code is concerned, the very provision does not indicate that the consideration for the Magistrate so as to acting under the above provision, could be as to what offence was really constituted by the facts of a case. He has simply to consider the nature of the case. It is plain from the above provision that a Magistrate can never try an offence which could not be triable by him or which he thinks be tried by other courts. There are provisions in the Code requiring the Magistrate to part with the trial of a case if he finds that he has no jurisdiction to try a case or he does not have the jurisdiction either to commit it for trial and further if he finds that the case was one which should be tried or committed for trial by some other Magistrate in the district. He may also find that the case could be tried by the Chief Judicial Magistrate. What action the Magistrate has thereafter to take is provided by section 322 of the Code. Likewise, on conclusion of the trial, if the Magistrate finds that he cannot pass sufficient sentence, then there is a provision under section 325 of the Code under which he has to part with the case and refer the matter back to the Chief Judicial Magistrate who could act as per the provision of that particular section. But, when the Magistrate comes to a conclusion that the case was one which ought to be tried by the court of Sessions, then he has never to consider the nature of offence. Therefore, in my considered view, the Magistrate could record a finding to the effect that the case was one which ought to be tried by the court of Sessions if he considers not only the evidence led in proof of the commission of the offence, but also the attending circumstances under which the offence was committed. 8. At this juncture, it would be relevant to refer the decision in the case of In Sudhir Vs. 8. At this juncture, it would be relevant to refer the decision in the case of In Sudhir Vs. State of M.P. 2001 (1) JLJ 344 = ( AIR 2001 SC 826 ) the Hon. Apex Court held as under:- “The practical reasons for adopting a procedure that such cross-cases shall be tried by the same Court, can be summarized thus : (I) 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. “ 9. On consideration of the above, in the opinion of this court, had the Magistrate read the circumstances and facts correctly and the law governing the case, the position would have been different, but unfortunately both the courts have left to consider. Hence, in the light of the judgment of the Apex court in the case of Sudhir (supra), and considering the factual aspects, noticed above, it would be desirable to direct the trial Magistrate to commit the case pending before him to the court of Sessions being Criminal Case No.1149/10, arising out of FIR No.163/10 to be tried by the same court alongwith S.T.No.176/11, being Criminal Case No.1148/10, arising out of FIR No.162/10. However, the judgments shall be delivered separately on merits of each case by the court. 10. As a sequel of the above, the petition stands allowed dismissing the order impugned dated 30/9/11 passed by the revisional court, in the manner aforesaid.