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2017 DIGILAW 1045 (ALL)

RAMESH CHANDRA UPADHYAY v. STATE OF U. P.

2017-04-19

AMAR SINGH CHAUHAN

body2017
JUDGMENT Hon’ble Amar Singh Chauhan, J.—Heard Sri Swapnil Kumar, learned counsel for the applicants, learned AGA for the State and perused the material on record. 2. The applicants, Ramesh Chandra Upadhyay and three others, through the present application under Section 482 Cr.P.C., have invoked the inherent jurisdiction of this Court with a prayer to quash the order dated 11.8.2008 passed by the Additional Sessions Judge, (Fast Track Court No. 1), Firozabad and direct the Court below to try and decide the Sessions Trial No. 641 of 2003 (State of U.P. v. Ramesh Chandra Upadhyay and others) and Criminal Case No. 635 of 2001 (Ramesh Chandra v. Swadesh Yadav @ Barey and others), Police Station North, District Firozabad together. 3. Brief facts which give rise to this application are that the First Information Report was lodged by the opposite party No. 2 at Police Station North City, District Firozabad which was registered as Case Crime No. 670 of 1999 under Sections 302, 307 IPC. A cross case was also registered from the side of the applicants as Case Crime No. 670-A of 1999 under Sections 147, 148, 149, 307, 504, 452, 506, 336 IPC. Subsequently, after concluding the investigation, the charge-sheet was submitted against the applicants and after committal which was numbered as Sessions Trial No. 641 of 2003 (State of U.P. v. Ramesh Chandra Upadhyay and others) under Sections 302, 307 IPC, Police Station North, District Firozabad. However, the police in collusion with the accused of the First Information Report lodged by the applicant No. 1 Ramesh Chandra Upadhyay, submitted a final report in which a protest petition was filed by the applicant No. 1. The learned Chief Judicial Magistrate, Firozabad has rejected the final report dated 10.12.1999 and summoned the opposite party No. 2 and other accused persons under Sections 147, 148, 149, 307, 504, 452, 506 and 336 IPC vide its order dated 2.3.2001. The applicants moved an application on 3.7.2006 before the Sessions Court praying to try and dispose of the Sessions Trial No. 641 of 2003 alongwith the Case No. 635 of 2001. The aforesaid application has been rejected on 11.8.2008 on the ground that the trial against the applicants are almost at the fag end of conclusion. As on the Criminal Misc. Application No. 17722 of 2005, this Court has stayed the execution of non-bailable warrants against the applicants. 4. The aforesaid application has been rejected on 11.8.2008 on the ground that the trial against the applicants are almost at the fag end of conclusion. As on the Criminal Misc. Application No. 17722 of 2005, this Court has stayed the execution of non-bailable warrants against the applicants. 4. Submission of learned counsel for the applicants is that admittedly both the cases are triable by Sessions Court exclusively and arising out of the same transaction and thus there is a risk of two Courts coming the conflicting finding. Therefore, it is desirable that the two cases should be tried by the same Court simultaneously. It is further submitted that on the one hand opposite party No. 2 has got stayed the proceedings in which he is accused by this Court but on the other hand the Sessions Trial against the applicants are going on which is not permissible in law as both the cases should be decided together. 5. Per contra learned counsel for the informant contends that the Court below has considered all the aspects of the case and has given the finding that the proceeding in Sessions Trial has been concluded while in the proceeding of the Case Crime No. 635 of 2001 has been stayed by the Court. It is also submitted that only to linger on the proceeding, the applicants have filed the application before the lower Court which was rightly rejected the same. 6. In this respect, the Hon’ble Apex Court in case of Sudhir and others v. State of M.P., (2001) 2 SCC 688 , held that “counter or cross cases should be disposed of by the same Court and judgement should be pronounced on the same day. 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. It is not clear why the legislature is still parrying to incorporate such a salubrious practice as a statutory requirement in Cr.P.C. The Hon’ble Apex Court further held that “how to implement the said scheme in a situation where one of the two cases (relating to the same incident) is charge-sheeted or complained of, involves offences or offence exclusively triable by a Court of Session, but the none of the offences involved in the other case is exclusively triable by the Sessions Court. The Magistrate before whom the former case reaches has no escape from committing the case to the Sessions Court as provided in Section 209 of the Code. Once the said case is committed to the Sessions Court, thereafter it is governed by the provisions subsumed in Chapter XVIII of the Code. Though, the next case cannot be committed in accordance with Section 209 of the Code, the Magistrate has, nevertheless, power to commit the case to the Court of Session, albeit none of the offences involved therein is exclusively triable by the Sessions Court. Section 323 is incorporated in the Code to meet similar cases also. That section reads thus: 323. If, in any inquiry into an offence or a trial before a Magistrate, it appears to him at any stage of the proceedings before signing judgment that the case is one which ought to be tried by the Court of Session, he shall commit it to that Court under the provisions hereinbefore contained and thereupon the provisions of Chapter XVIII shall apply to the commitment so made.” 7. In case of Nathi Lal v. State of U.P., 1990 SCC (Cri) 638, it was observed by Hon’ble Supreme Court that “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 hear the cross case and after recording all the evidence he must hear the arguments but reserve the judgment in that case. 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. 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.” 8. In the case in hand both the cases are arising out of the same transaction but the Additional Sessions Court rejected the application for disposal of both the cases by the same Court and sent back file to the Court concerned. There is no legal obligation to send back the case to the Court of Chief Judicial Magistrate. It is desirable for the Additional Sessions Judge to decide the both cases simultaneously. To facilitate such a procedure to be adopted, I set aside the order passed by the Additional Sessions Judge and directed to decide the both cases simultaneously in accordance with the procedure laid down in Nathi Lal’s case (supra). 9. With the above direction, the application 482 Cr.P.C. is finally disposed of.