Research › Search › Judgment

Gauhati High Court · body

2012 DIGILAW 784 (GAU)

Shiyab Uddin v. State of Assam and Ors.

2012-06-25

I.A.ANSARI

body2012
1. Aggrieved by the order, dated 28.6.2007, passed, in Sessions Case. No. 43 of 2007, by the learned Sessions Judge, Karimganj, the present petitioner, who is one of the accused, has impugned the said order, dated 28.6.2007, in this revision, the case of the accused-petitioner being that the Sessions Case No. 43 of 2007, wherein the present petitioner is one of the accused, is a cross case of GR Case No. 41-1 of 2006, presently pending in the court of the learned Sub-Divisional Judicial Magistrate (S), Karimganj, which was lodged by the mother of the present petitioner, and, upon investigation, police has submitted charge sheet against the accused, named in the said case, under section 147/341/323/34, Indian Penal Code ('IPC'); whereas in Sessions Case No. 43 of 2007, the charge sheet submitted was under section 341/323/304/34, IPC and, hence, both the cases be tried by the same court as cross-case and, for this purpose, the record of GR Case No. 414 of 2006, be called by the learned Sessions Judge, but this prayer of the accused-petitioner was declined by the interim order on the ground that the two cases were different inasmuch as the occurrence had taken place at different points of time and the places of occurrence were also different. 2. Heard Mr. I.A. Hazarika, learned counsel for the petitioner, and Mr. K.A. Mazumdar, learned Additional Public Prosecutor, Assam. None has appeared on behalf of the accused, in GR Case No. 414 of 2006, who have been impleaded, in this revision, as opposite party. 3. Upon perusal of the record, it clearly transpires that the said two cases, namely, Sessions Case No. 43 of 2007 and the GR Case No. 414 of 2006, are counter or cross-cases of each other and, hence, these two cases ought to be tried together. The law, in this regard, has been clarified by a Division Bench, in Sadat Alt and Ors. The law, in this regard, has been clarified by a Division Bench, in Sadat Alt and Ors. v. State of Tripura, 2005 (1) GLT 132, wherein it his been clarified that though the Code of Criminal Procedure does not lay down any specific procedure regarding trial of counter cases, it is the practice adopted, in the interest of justice, by the courts that if a case is committed to the Court of Sessions, the Counter Case, arising out of, the same incident, should also be, ordinarily, committed to the same Court of Sessions even if the latter is not exclusively triable by a Court of Sessions. The Division Bench has pointed out, in Sadat Ali (supra), that it has used cautiously the word, "ordinarily", for, in an appropriate case, the Magistrate, instead of committing the case to a Court of Sessions, may have to discharge an accused in terms of section 245 of the Code of Criminal Procedure, particularly, when the case is not exclusively triable by the court of Session. Undoubtedly, however, the case and the counter case, which is commonly called cross-case, should be tried by the same Presiding Officer in quick succession. The first case should be tried to the stage of conclusion, but the judgment should be reserved till the second case is concluded and, thereafter, the judgment of the two cases should be pronounced separetely - See also Girijananda Bhattacharyya and Another v. The State of Assam and Others, 1978 Crl. LJ 259 (Assam). 4. In Kewal Krishan v. Suraj Bhan and Another, AIR 1980 SC 1780 the Supreme Court has held that simultaneous trials of both the cases, which are exclusively triable by Court of Sessions, before two different courts over one and the same occurrence, are undesirable and both the cases should be tried by one Presiding Officer and that too, one after the other, for, there is, otherwise, risk of two different courts coming to conflicting findings. 5. 5. While pronouncing the judgment on the guilt or otherwise of the accused facing the two trials, the judgment of each case shall be kept confined to the discussion of the evidence adduced in that particular case and a court shall not make use of the evidence of one case for the purpose of enabling it to pronounce the judgment in the other case or allow its findings, in one case, to be influenced in any manner whatsoever to the prejudice of the accused by the views, which it may have formed in the other case. 6. To put it a little differently, while considering the guilt or otherwise of an accused in a case, the evidence from the counter or cross-case, as it is commonly called, cannot be imported into the case and based, on the evidence adduced in a cross-case, the guilt or otherwise of the accused cannot be determined. This does not, however, mean that a person, who is an accused in the cross-case, cannot give evidence in the case launched against him even if the evidence. Which he seeks to give, has some bearing or may have some bearing on the cross-case. 7. What needs to be, however, pointed out is that the learned Sessions Judge, contrary to what the accused-petitioner had sought for, could not have called the record of GR Case No. 414 of 2006 and try the same inasmuch as the trial of GR Case No. 414 of 2006, in the Sessions Court, is legally permissible only upon commitment of GR Case No. 414 of 2006 to the court of Session. 8. What emerges from the above discussion is that the two cases aforementioned, namely, Sessions Case No. 43 of 2007 and GR Case No. 414 of 2006, being cross-cases of each other, shall be tried together, but not in the form of a joint trial. For the purpose of enabling the learned Sessions Judge try GR Case No. 414 of 2006, learned Sub-Divisional Judicial Magistrate (S), Karimganj, is required to commit, for trial, GR Case No. 414 of 2006 to the Court of Sessions. 9. For the purpose of enabling the learned Sessions Judge try GR Case No. 414 of 2006, learned Sub-Divisional Judicial Magistrate (S), Karimganj, is required to commit, for trial, GR Case No. 414 of 2006 to the Court of Sessions. 9. In the result and for the reasons discussed above, the impugned order, dated 28.6.2007, is hereby set aside and the learned Sub-Divisional Judicial Magistrate(S), Karimganj, is hereby, in the interest of justice, directed to commit GR Case No. 414 of 2006 to the learned Sessions Judge, Karimganj, for trial and, upon such commitment being made, the learned Sessions Judge shall try both the said cases, namely, Sessions Case No. 43 of 2007 and GR Case No. 414 of 2006, as cross-cases, in accordance with law. 10. In view of the directions given above, the interim direction, which was passed in this revision, on 28.9.2007, staying proceedings of both the said cases, are hereby vacated so that both the cases can proceed in accordance with law and in terms of the directions given above. _____________