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2016 DIGILAW 1103 (ORI)

Radhakanta Bhoi v. State of Orissa

2016-11-16

S.K.SAHOO

body2016
JUDGMENT : S.K. SAHOO, J. This is an application under section 482 read with section 407 of the Code of Criminal Procedure filed by the petitioners with a prayer to quash the impugned order dated 13.07.2009 passed by the learned Additional Sessions Judge (F.T.C.), Bolangir at Patnagarh in Sessions Case No.104/48 of 2007. The petitioners are facing trial before the learned Additional Sessions Judge (F.T.C.), Bolangir at Patnagarh in Sessions Case No.104/48 of 2007 for offences punishable under section 147/148/307 read with section 149 of the Indian Penal Code which arises out of Patnagarh P.S. Case No.149 of 2005. They filed a petition before the learned Trial Court on 22.06.2009 indicating therein that since Sessions Case No.85/46 of 2007 which is a case under sections 147/148/307 read with section 149 of the Indian Penal Code arising out of Patnagarh P.S. Case No.148 of 2005 is a counter case to the case in which they are facing trial, both the cases which are subjudiced before the same Court for trial should be disposed of one after another by clubbing both the cases. The learned Trial Court called for the records of Sessions Case No.85/46 of 2007 and on verification of both the case records observed that both the P.S. cases relate to the occurrence dated 16.10.2005 and out of eight accused persons in Sessions Case No.104/48 of 2007, petitioners Nos.1, 2 and 4 are injured in Sessions Case No.85/46 of 2007 and accused persons in Sessions Case No.85/46 of 2007 are injured eye witnesses in Sessions Case No.104/48 of 2007. It was further held that in Sessions Case No.85/46 of 2007, nine P.Ws. have been examined out of twelve charge sheet witnesses whereas Sessions Case No.104/48 of 2007 is posted for pronouncement of judgment. The learned Trial Court rejected the prayer made by the petitioners mainly on the ground that the petitioners have not taken any step earlier to treat the Sessions Case No.85/46 of 2007 as a counter case to Sessions Case No.104/48 of 2007. It was further held that since both the cases were separately transferred to the Court for trial, he was not competent to treat Sessions Case No.85/46 of 2007 as a counter case to Sessions Case No.104/48 of 2007 and to enquire if both the cases relate to same incident. Learned counsel for the petitioners Mr. It was further held that since both the cases were separately transferred to the Court for trial, he was not competent to treat Sessions Case No.85/46 of 2007 as a counter case to Sessions Case No.104/48 of 2007 and to enquire if both the cases relate to same incident. Learned counsel for the petitioners Mr. Pratyush Ranjan Patnaik contended that occurrence took place on 16.10.2005 due to a boundary dispute between the parties and both the cases arise out of same transaction and it took place at the same place and injured persons in one case are the accused persons in the other case and vice versa and therefore, in the fitness of things and in view of settled position of law, both the cases should be tried together as case and counter case and judgment in both the cases to be pronounced on the same day. The learned counsel for the petitioners placed the First Information Reports of both the cases. Mr. Dillip Kumar Mishra, learned Additional Government Advocate contended that though it appears that the occurrence in both the cases arose when there was an attempt to put fence on the land by one party which was protested by the other party and both the parties attacked each other for which numbers of persons from both the sides sustained injuries but the timing of the incident as mentioned in the cases are different. He stated that in Patnagarh P.S. Case No.148 of 2005, the time of incident has been mentioned to be 16.10.2005 at 8.00 a.m. whereas in Patnagarh P.S. Case No.149 of 2005, the time of incident has been mentioned to be 16.10.2005 at 11.00 a.m. The learned counsel for the State further submitted that Sessions Case No.104/48 of 2007, as it appears from the impugned order, was posted for the pronouncement of the judgment whereas the other case i.e. Sessions Case No.85/46 of 2007, the evidence of the prosecution has not been closed and therefore, if the pronouncement of the judgment of Sessions Case No.104/48 of 2007 is held up till the completion of evidence and argument in Sessions Case No.85/46 of 2007 then there will be inordinate delay. The learned counsel for the State submitted that since there was laches on the part of the petitioners in not taking steps at an earliest, therefore, the learned Trial Court has not committed any illegality in passing the impugned order. As it appears, vide order dated 17.08.2009 in Misc. Case No.1814 of 2009, further proceeding in Sessions Case No.104/48 of 2007 has been stayed by this Court. A report was called for on 15.11.2016 from the learned Trial Court regarding the position of Sessions Case No.85/46 of 2007. The learned Additional Sessions Judge, Patnagarh has submitted his report indicating therein that charge has already been framed in the case on 24.06.2015 and summons have been issued to the witnesses and the case is posted to 16.11.2016 for hearing. On perusal of the First Information Report of Patnagarh P.S. Case No.148 of 2005 which was initiated on 16.10.2005 at the instance of petitioner no.4 Ratikanta Bhoi, it indicates that the occurrence took place when the accused persons were digging earth to put fence on the land. It is further stated in the First Information Report that when some of the petitioners prevented the other side from putting such fence, they were assaulted as a result of which petitioner no.1 Radhakanta Bhoi and petitioner no.2 Narendra Bhoi sustained head injuries. The informant Ratikanta Bhoi (petitioner no.4) also stated to have sustained some injuries on his person. On perusal of the First Information Report in Patnagarh P.S. Case No.149 of 2005 which was lodged by one Smt. Tapaswani Patra (Opposite party No.2) on 16.10.2005, it appears that at the time of occurrence while they were putting fence on their land, the petitioners came there, created disturbance and assaulted some of the informant party members, as a result of which they sustained injuries. Thus on perusal of the First Information Reports of both the cases, it appears that the occurrence in question took place on 16.10.2005 in village Damkipali during the course of same transaction i.e. putting of fence on a particular land by one party which was protested by the other party and persons from both the sides were assaulted for which they sustained injuries. Though the time of occurrence as mentioned in the First Information Reports is different but it may be so that the digging of earth on the case land commenced at 8.00 a.m. whereas the occurrence in question took place at 11 a.m. when the fence was put. When the occurrence arose out of the same transaction and occurred at same place and between the same parties, on going through the averments made the First Information Reports, I am convinced that Patnagarh P.S. Case No.148 of 2005 corresponding to Sessions Case No.85/46 of 2007 and Patnagarh P.S. Case No.149 of 2005 corresponding to Sessions Case No.104/48 of 2007 are case and counter case. In the case of Nathilal and others -Vrs.-State of U.P. and another reported in 1990 Supreme Court Cases (Criminal) 638, it is held that where there are cross cases, the fair procedure to adopt 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, the Court 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. 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 case of Kewal Krishan –Vrs.-Suraj Bhan reported in AIR 1980 Supreme Court 1780, it is held that where two cases are exclusively triable by the Court of Session, one instituted on a police report under section 173 Cr.P.C. and the other initiated on a criminal complaint, arise out of the same transaction, if the two cases are tried by two different Courts, there is a risk of two Courts coming to conflicting findings. To obviate such a risk, it is ordinarily desirable that the two cases should be tried separately but by the same Court. In the case of Pitabas Behera and others –Vrs.-State of Orissa reported in (2000) 18 Orissa Criminal Reports 174, it is held that as far as practicable cross cases should be tried and decided by the same Trial Court. Both the cross cases should be tried one after the other and judgments in both the cases be pronounced after trial of the later case is over. The Trial Court must bear in mind that each of the cross cases be decided on its own merits and the basis of evidence in respective cases. In other words, evidence available in one case cannot be referred to in any manner while deciding the counter case and the vice-versa. The Court placed reliance in the case of Gundi Sahu and other -Vrs.-State of Orissa and others: Vol.XLI (1975) CLT 607, Thota Ramakrishnayya and others -Vrs.-The State : AIR 1954 Madras 442, Girijananda Bhattacharya and another -Vrs.-The State of Assam and others : 1978 Cri. L.J. 259 and Kewal Krishan -Vrs.-Suraj Bhan and another : AIR 1980 SC 1780 . In view of the settled position of law as enunciated in the aforesaid cases and the fact that both Sessions Case No.85/46 of 2007 and Sessions Case No.104/48 of 2007 are pending now before the learned Additional Sessions Judge, Patnagarh for trial, I direct the learned Trial Court to treat both the cases as case and counter case and since Sessions Case No.104/48 of 2007 was posted for pronouncement of judgment, the learned Trial Court at this juncture should withheld the pronouncement of judgment and proceed with Sessions Case No.85/46 of 2007 and after concluding evidence from both the sides in that case, he shall hear the arguments of the case and also hear the argument of Sessions Case No.104/48 of 2007 afresh and thereafter, pronounce the judgments of both the cases by two separate judgments on the same day. With the aforesaid observation, the CRLMC is disposed of.