Research › Search › Judgment

Uttarakhand High Court · body

2013 DIGILAW 519 (UTT)

Satbir Sehrawat v. State of Uttarakhand

2013-08-07

U.C.DHYANI

body2013
Judgment U.C. Dhyani, J. The applicant, by means of present application/petition under Section 482 of Cr.P.C., seeks to direct that the criminal trials arising out of FIR No. 96 of 2011 (case crime number 110 of 2011), police station Bhagwanpur, registered by the petitioner and FIR No. 153 of 2009 (case crime no. 220 of 2009), in police station Bhagwanpur, registered at the behest of accused/respondent no. 3 should be tried simultaneously by the learned Addl. Civil Judge (Sr. Div.)/Judicial Magistrate, Roorkee or any other competent court. The applicant also seeks to call for the record of Writ Petition No. 1383 of 2012 and direct the hearing/adjudication of the said petition alongwith the instant petition. Applicant also seeks that during the pendency of both these petitions, viz., the instant petition and Writ Petition No. 1383 of 2012, the criminal trial arising out of FIR No. 153 of 2009, (case crime no. 220 of 2009) against the petitioner and others and presently pending in the court of learned Addl. Civil Judge (Sr. Div.)/Judicial Magistrate, Roorkee should be stayed. 2) According to the applicant, the facts arising out of case crime no. 220 of 2009 and case crime no. 110 of 2011 and the respective charge-sheets filed therein, revealed that they relate to the same transactions and are cross cases, in as much as, the complainant and witness in one case, are the accused in other case and vice-versa. 3) It is contended on behalf of the applicant that it is not only desirable but is also mandatorily required that both the cases arising out of the two FIRs are not only tried simultaneously, but are also tried by the same Judge. 4) Reliance was placed upon the decisions of Harjinder Singh vs. State of Punjab, 1985 (1) SCC 422 and State of M.P. vs. Mishri Lal, (2003) 9 SCC 426 . In matters involving cross cases, both the complaints cannot be said to be right and one of them must be false. The truth or otherwise of an FIR/charge-sheet and the veracity of the statement of the witnesses filed alongwith challan, as also the documents accompanying it, can only be ascertained through the touchstone of evidence recorded during a trial. In matters involving cross cases, both the complaints cannot be said to be right and one of them must be false. The truth or otherwise of an FIR/charge-sheet and the veracity of the statement of the witnesses filed alongwith challan, as also the documents accompanying it, can only be ascertained through the touchstone of evidence recorded during a trial. Equality and fairness, as also the mandate of law, in such situation require that the same Court should examine the witnesses in both the cases simultaneously, albiet in different trial, so as to arrive at the truth. 5) Reliance was also placed upon the decision of Nathi Lal and others vs. State of U.P. and another, 1990 (Supp) SCC 145, which was followed subsequently in a number of decisions. The acceptance of one version at the conclusion of a trial would invariably lead to the rejection of the cross version. According to learned counsel for the applicant, if only one trial is allowed to continue and the other trial is stayed or not allowed to be carried out simultaneously, the fate of such latter trial would already be sealed with the pronouncement of the verdict in the first trial. There is likelihood of conflicting decisions, which would lead to a travesty of justice. 6) It may be noted here that the applicants Satbir Sehrawat and others moved an application under Section 482 of Cr.P.C. before this Court against the issuance of non-bailable warrant against them (as accused persons) by the trial court. In a way, the applicants prayed for quashing of the summoning order and the charge-sheet submitted against them. When the applicants did not appear before the trial court, then non-bailable warrants were issued against the accused persons. The application moved by them under Section 482 of Cr.P.C. was dismissed by this Court. The accused persons challenged the same before the Hon’ble Supreme Court by way of filing criminal appeal no. 627 of 2011 and criminal appeal no. 628 of 2011, which were disposed of by the Hon’ble Apex Court on 25.02.2011. 7) The judgment and order rendered by the Hon’ble Apex Court is excerpted here-in-below for convenience: “Leave granted. We have heard the learned counsel for the parties. 627 of 2011 and criminal appeal no. 628 of 2011, which were disposed of by the Hon’ble Apex Court on 25.02.2011. 7) The judgment and order rendered by the Hon’ble Apex Court is excerpted here-in-below for convenience: “Leave granted. We have heard the learned counsel for the parties. Learned counsel for the State of Uttarakhand submits that the State does not want custodial interrogation of the appellants if the appellants are directed to appear before the Trial Court on 17th March 2011 (the date fixed for hearing of the case by the Trial Court). We direct the appellants to appear before the Trial Court on 17th March, 2011 and on all other subsequent dates as and when they are required by it. In case the appellants do not abide by the aforesaid directions of this Court, then the interim relief granted to them by this Court can be modified by the Trial Court. In the facts and circumstances of this case, we deem it appropriate to direct the appellants to deposit their passports with the Trial Court on or before the next date of hearing and the Trial Court would also be at liberty to impose any other conditions which it deems fit and proper in the facts and circumstances of the case. In the event of arrest, the appellants are directed to be released on bail on their furnishing personal bond in the sum of Rs. 50,000/- (Rupees fifty thousand) with two sureties each in the like amount to the satisfaction of the Trial Court. We request the Trial Court to conduct the trial of the case on day-to-day basis and conclude the same as expeditiously as possible. These appeals are disposed of with the aforementioned observations and directions.” 8) 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. 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 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.’ 9) Close to its heels Madras High Court 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 vs. 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 cases should be tried in quick succession by the same Judge, who should not pronounce judgment till the hearing of both cases is finished.” 10) The practical reasons for adopting a procedure that such cross cases shall be tried by the same court, can be summarized 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. 11) 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. Hon’ble Supreme Court has given its approval to the said practice in Nathi Lal and others vs. 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 hereunder 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 cross cases one after the other. The procedure to be followed in such a situation has been succinctly delineated in the said decision and it can be extracted hereunder 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 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 her 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.” 12) The aforesaid law was affirmed by the Hon’ble Apex Court in State of M.P. vs. Mishri Lal (dead) and others, (2003) 9 SCC 426 . 13) An FIR was lodged by Falgun K. Patel on 16.09.2009. Another FIR (say, cross FIR) was lodged by his adversary Satbir Sehrawat on 23.05.2011. Assuming that the aforesaid two cases are cross cases, the moot question is – Can this Court put the clock back in the wake of Hon’ble Supreme Court’s order? Can this Court undo what the Hon’ble Supreme Court has done? The Hon’ble Apex Court has directed the case instituted against Satbir Sehrawat to be tried on day-to-day basis. If this Court directs that the aforesaid two cases be tried together and the procedure of cross case as prescribed in Nathi Lal’s case (supra) is followed, what will happen? The judgment in Satbir Sehrawat’s case will be held up till such time the evidence in Falgun K. Patel’s case is also concluded. What will be the effect of passing of such an order? The judgment in Satbir Sehrawat’s case will be held up till such time the evidence in Falgun K. Patel’s case is also concluded. What will be the effect of passing of such an order? It will negate the effect of the order of Hon’ble Apex Court. This Court cannot put a restraint order on the order of Hon’ble Apex Court. This Court is the last one, in fact none, to commit contempt of court! It cannot act as a negative catalyst. One step forward, two steps backwards? Pull the chain of a fast moving train, which is running in speed as per the dictates of Hon’ble Supreme Court? If these cases are directed to be tried together the same would have the effect of nullifying the order of Hon’ble Supreme Court. It will have a negative impact, which is not possible. It appears that after having failed to obtain relief in C-482 petition, the applicant chose to take recourse to this route to stop the proceedings of criminal case pending against him in the Court situated at Roorkee. It is a clever move akin to the move of an accused who is facing trial in a serious case, and who subsequently files a complaint case as a counterblast to give the same a colour of ‘cross case’. This Court should not succumb to the guile of the applicant. His maneouvering cannot be permitted to succeed. 14) The application filed by the applicant for a direction that the criminal trials arising out of FIR No. 96 of 2011 (case crime number 110 of 2011), police station Bhagwanpur, registered by the petitioner and FIR No. 153 of 2009 (case crime no. 220 of 2009), police station Bhagwanpur, registered at the behest of accused/respondent no. 3 should be tried simultaneously by the learned Addl. Civil Judge (Sr. Div.)/Judicial Magistrate, Roorkee, or any other competent court, as well as the prayer that during the pendency of both these petitions, viz., the instant petition and Writ Petition No. 1383 of 2012, the criminal trial arising out of FIR No. 153 of 2009, being case crime no. 220 of 2009 against the petitioner and others, presently pending in the court of learned Addl. Civil Judge (Sr. Div.)/Judicial Magistrate, Roorkee, should be stayed, therefore, fails and is, accordingly, dismissed.