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2013 DIGILAW 988 (HP)

Shyam Lal v. State of Himachal Pradesh

2013-11-29

DHARAM CHAND CHAUDHARY

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JUDGMENT Dharam Chand Chaudhary, J.(Oral): Challenge herein is to the order, Annexure P-2, passed by learned Sessions Judge, Bilaspur in Criminal Revision No.11 of 2010, dated 2.3.2013 whereby the petition has been dismissed. 2.The occurrence having taken place between the petitioner and respondents No.2 to 4 has led in registration of two F.I.Rs.; one being FIR No.182 of 2008 under Section 354 of Indian Penal Code (hereinafter referred to as ‘the Code’ for short) at the instance of respondent No.2, whereas, the another FIR No.181 of 2008 under Sections 341, 504 and 506 read with Section 34 of the Code at the instance of the petitioner in Police Station, Barmana. An offence punishable under Section 354 of the Code is triable by the Court of Judicial Magistrate 1st Class, whereas, the offence punishable under Sections 341, 504 and 506 of the Code is triable by Gram Panchayat under Section 32(1) of Himachal Pradesh Panchayati Raj Act, 1994. Therefore, while the case registered under Section 354 of the Code vide FIR No.182 of 2008 against the petitioner is pending trial before Judicial Magistrate 1st Class, Bilaspur, the case under Sections 341, 504 and 506 of the Code registered vide FIR No.18 1 of 2008 at his instance against respondents No.2 to 4 is pending trial before Gram Panchayat Sayer­Dhoba, district Bilaspur. 3.The accused-petitioner has made an application under Section 210 of the Code of Criminal Procedure with the prayer that the record of the case pending for trial before the Gram Panchayat be called and the said case be also tried by learned Magistrate together with the case under Section 354 of the Code against him pending trial before the said Court being cross cases and the result of same occurrence. Learned trial Magistrate has dismissed the application vide order Annexure P-1 on the ground that the case registered vide FIR No.181 of 2008 is exclusively triable by Gram Panchayat. 4.In revision petition, learned Sessions Judge, Bilaspur while taking note of the provisions contained under Section 32(1) of the Himachal Pradesh Panchayati Raj Act, has taken similar view of the matter and dismissed the revision petition. 5.It has been urged on behalf of the accused- petitioner that irrespective of the jurisdiction to try the offence in both FIRs, the same are required to be decided by the same Court. 5.It has been urged on behalf of the accused- petitioner that irrespective of the jurisdiction to try the offence in both FIRs, the same are required to be decided by the same Court. Learned Additional Advocate General, however, has pleaded the exclusion of jurisdiction of the Court of Judicial Magistrate in respect of the trial of a case pertaining to the offence punishable under Sections 341, 504 and 506 of the Code as provided under Section 32(1) of the Himachal Pradesh Panchayati Raj Act. 6. The law on the issue brought to this Court in this petition is no more res-integra as the Apex Court in State of M.P. Versus Mishrilal (dead) and others, ( 2003(9) SCC 426 has held that in order to avoid conflicting judgments over the same incident, cross cases must be tried by the same Judge one after the other irrespective of the nature of the offence involved. This judgment reads as follows:- “7. 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 of 1987 under Sections 147, 148, 149 and 324 IPC 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 :- “2. 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 cases 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.” 8. 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 Nathilal’s case. The cross-cases should be tried together by the same court irrespective of the nature of the offence involved. The rationale 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.” 7.The ratio of the judgment (supra), therefore, clinches the entire controversy and the only and irresistible conclusion would be that both the cases are required to be decided by the same learned Judge. Therefore, the impugned order is not legally sustainable and the same, as such, is quashed and set aside. Therefore, the impugned order is not legally sustainable and the same, as such, is quashed and set aside. The record of the case under Sections 341, 504 and 506 of Indian Penal Code registered vide FIR No.181 of 2008 is hereby ordered to be transferred from Gram Panchayat, Sayer-Dhoba, district Bilaspur to the Court of learned Judicial Magistrate 1st Class, Bilaspur for trial alongwith case No.215/4 of 2010 arising out of the 2nd FIR No.182 of 2008. The parties to appear in the trial Court on 24.12.2013. The Secretary Gram Panchayat, Sayer-Dhoba is directed to transfer the record of the case to the Court of learned Judicial Magistrate 1st Class, Bilaspur well before the date fixed in the case. 8.The petition stands accordingly disposed of. Pending applications, if any, shall also stand disposed of. Authenticated copies of this judgment be sent to learned Sessions Judge, Bilaspur and Judicial Magistrate 1st Class, Bilaspur for compliance.