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Allahabad High Court · body

2019 DIGILAW 1023 (ALL)

Sachin v. State of U. P.

2019-04-20

KARUNA NAND BAJPAYEE

body2019
JUDGMENT : Karuna Nand Bajpayee, J. 1. This application u/s 482 Cr.P.C. has been moved seeking the quashing of impugned order dated 31.10.2018 passed by the Additional chief Judicial Magistrate, Court No.01, Bulandshahr in Criminal Case No.324 of 2018 (State vs. Sachin and others) relating to Case Crime No.473 of 2015, u/s 323, 325, 504, 506 I.P.C., Police Station-Jahangirabad, District-Bulandshahar whereby the court below on the application moved on behalf of opposite party no.2 proceeded to commit the matter to the Court of Session and directed the accused-applicant to appear personally in the court below on the date fixed so that the matter may be committed. 2. It appears that two cases which involved some commonality were pending in two different courts; one case emanated from Case Crime No.473 of 2015 while another case emanated from Case Crime No.423 of 2015. The case arising out of Case Crime No.473 of 2015 was a case pending in the court of Magistrate while another case which arose out of Case Crime No.423 of 2015 was pending in the Court of Session. The complainant of Case Crime No.473 of 2015 moved an application before the court of Magistrate whereby it was made to appear that as these two cases were related to each other and were virtually in nature of cross versions or cross cases, therefore, they should be tried together by the same court. It was pressed before the court concerned that the case triable by the court of Magistrate should also be committed to the Court of Session so that both cases may be tried together by the same court. Perusal of the impugned order shows that the entire factual aspects on the basis of which such kind of plea was raised by the complainant of one case were gone into by the court below and were considered at a sufficient length. It was taken into account by the court of Magistrate that according to the F.I.R. which related to Case Crime no.473 of 2015 the date and time of incident was shown to be 24.9.2015 at about 10.30 O'clock. It was also taken note of by the court below that the version of the F.I.R. in this case also contained the fact that the accused persons of that case also incurred injuries in the process of intervening defence. It was also taken note of by the court below that the version of the F.I.R. in this case also contained the fact that the accused persons of that case also incurred injuries in the process of intervening defence. The court below inferred on this basis that the incident was of such nature that both the sides received injuries in the common transaction. The court below was of the view that though the F.I.R. is said to have been registered on 29.9.2015 but the incident was said to have taken place on 24.9.2015. The impugned order further reflects that the court below also considered the aspect of delay in lodging the F.I.R. and was prima facie satisfied about the explanation regarding the delay. The court below went further to consider the contents of the F.I.R. relating to Case Crime No.423 of 2015 and found that even according to that F.I.R. also the incident was said to have taken place on 24.9.2015 at 10.30 O'clock. In this background of the matter, the court below was of the view that the incident took place between the same parties on the same day at the same time, and therefore, both the cases ought to be tried together and it was in view of this finding that it proceeded to commit the matter arising out of Case Crime no.473 of 2015 registered u/s 323, 325, 504, 506 I.P.C. to the Court of Session and directed the concerned accused to appear personally in the court on the date fixed so that the matter may be committed. 3. Heard learned counsel for the applicant. 4. Learned counsel for the applicant has tried to assail the validity of the impugned order vehemently and has gone to the extent of asserting that there is no provision in the Criminal Procedure Code whereby a case which is not triable by the court of Session may be committed to the court of Session. According to the counsel if a case has been declared to be triable by a court of Magistrate then he has no option but to try it and there cannot be any situation in which the same may be committed to the court of Session. According to the counsel only those matters have to be sent to the court of Session which have been declared to be triable by the court of Session. According to the counsel only those matters have to be sent to the court of Session which have been declared to be triable by the court of Session. The perusal of grounds taken in the application also show that the validity of the order has been castigated mainly by dealing the scope of Section-210 of Cr.P.C. and its ambit of application has been elaborated upon in Para-11 and 12 of the affidavit filed in support of the present application and it has been sought to be argued by the counsel that Section 210 of Cr.P.C. cannot be resorted to for the purposes of committing the case as the same deals with regard to clubbing of the two cases in respect of the same offence where one is a complaint case and another case is a police investigated case. 5. Heard learned A.G.A. and perused the record. 6. So far as the contentions raised by the counsel for the applicant and the grounds taken in the present application are concerned, they appear to be completely merit less. There is nothing on record to indicate that Section-210 of Cr.P.C. has been resorted to by the Magistrate in order to commit the case to the Court of Session. The aforesaid section has certainly no applicability for this purpose. In fact the impugned order does not indicate any specific section of the Criminal Procedure Code which might have been referred to by the Magistrate. It was not even necessary for him to do so. At any rate the omission of section will not invalidate an otherwise valid exercise of power. The law on the point is trite and does not need any great elaboration. So far as the power and scope to commit a case to the court of Session even though it may not have been declared in the First Schedule to be a case triable by the court of Session is concerned, the right provision to be invoked and referred to is Section-323 of Cr.P.C. which reads as follows : “323. Procedure when, after Commencement of inquiry or trial, Magistrate finds case should be committed. Procedure when, after Commencement of inquiry or trial, Magistrate finds case should be committed. 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. There are many situations in which a Magistrate may deem it proper and may find that even though the case is triable by a court of Magistrate but it 'ought to be tried' by the court of Session. The use of words 'ought to be tried by the court of Session' is very significant. The cases which are committed to the court of Session under Section-209 of Cr.P.C. are the cases which involve the offences 'triable exclusively by the court of Session' according to the classification of the first Schedule. At that stage such cases are got to be committed to the court of Session because they had to be tried by the court of Session. The cases which have been declared in the First Schedule to be triable exclusively by the court of Session have to be committed u/s 209 and there is no option for the Magistrate to withhold them. It may be of use to quote Section-209 of Cr.P.C. which reads as follows : “209. Commitment of case to Court of Session when offence is triable exclusively by it . It may be of use to quote Section-209 of Cr.P.C. which reads as follows : “209. Commitment of case to Court of Session when offence is triable exclusively by it . -When in a case instituted on a police report or otherwise, the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall- (a) commit, after complying with the provisions of section 207 or section 208, as the case may be, the case to the Court of Session, and subject to the provisions of this Code relating to bail, remand the accused to custody until such commitment has been made;] (b) subject to the provisions of this Code relating to bail, remand the accused to custody during, and until the conclusion of, the trial; (c) send to that Court the record of the case and the documents and articles, if any, which are to be produced in evidence; (d) notify the Public Prosecutor of the commitment of the case to the Court of Session.” 8. In ordinary course the triability of a particular offence by a court of Session or by a court of Magistrate has to be determined by the First Schedule of Cr.P.C. but the Legislation in its wisdom has contemplated many situations where even though a case may be triable by a court of Magistrate yet it may involve some such features that the Magistrate may find it in the fitness of things to commit the same to be tried by the court of Session. Many illustrations in this regard may be given which may not be exhaustive in nature. A particular case even though may be triable by the court of Magistrate but may involve some such intricate point of law of great importance that a Magistrate may deem it proper that the case 'ought to be tried by the court of Session'. Sometimes the colossal implications or the likely fallout of a particular case may be so grave and far-reaching that it may embroil the whole society or the whole nation. The enormity of the social implications which a particular case may involve can also furnish a good ground to the Magistrate to commit such a case to the court of Session even though it was a case triable by a court of Magistrate only. The enormity of the social implications which a particular case may involve can also furnish a good ground to the Magistrate to commit such a case to the court of Session even though it was a case triable by a court of Magistrate only. The most common use of this section is seen every day taking place in all the courts when it is applied to the cross cases. The normal principle or the judicial policy as it has evolved over the years is that the cross case should better be tried by the same court and as far as it is feasible the courts should make an endeavour to pronounce their verdicts also simultaneously or at any rate not with a huge gap. Such a policy has been recognized by the courts in order to avoid the possibility of pronouncing contradictory verdicts which may go to shake the public faith in the sanctity and credibility of the judicial institution. It goes without saying that the cross cases may not be always triable by the same forum. Often it happens that one case is triable by the court of Session while the other related cross case is triable by the court of Magistrate. In such a situation when it is made to appear before the court concerned that the case triable by the court of Magistrate is in fact having features of a cross case then the Magistrate prefers to commit the same to the court of Session when the other cross case is being tried. This situation comes very frequently and the Magistrates making use of Section 323 of Cr.P.C. do proceed to commit the case to the court of Session which is not otherwise triable by it because they deem it proper that such a case 'ought to be tried by the court of Session'. Such kind of commitment is certainly not because this cross case is 'exclusively triable by the court of Session'. Therefore, the contention of applicant's counsel that there is no provision in the Criminal Procedure Code whereby a case triable by the court of Magistrate may be committed to the court of Session does not contain any merit and betrays ignorance of law. The reference that has been made to Section-210 of Cr.P.C. is again a wholly irrelevant reference. Therefore, the contention of applicant's counsel that there is no provision in the Criminal Procedure Code whereby a case triable by the court of Magistrate may be committed to the court of Session does not contain any merit and betrays ignorance of law. The reference that has been made to Section-210 of Cr.P.C. is again a wholly irrelevant reference. Section 210 of Cr.P.C. has neither been resorted to by the court below nor has any application in the context. There is absolutely no occasion to criticize the impugned order on any such ground. So far as the finding of the court below regarding the nature of two cases is concerned, even though they have not been registered as cross cases but the Magistrate has given his reasons on the basis of which it has concluded that the two cases appeared to be cross versions of the same transaction giving rise to two criminal cases. This court dos not see any element of perversity in the impugned order which reflects judicial application of mind. If a particular judicial discretion has been vested in the court as it has been vested by Section-323 of Cr.P.C. then this Court would ordinarily loathe to meddle with the same and substitute it by its own even if it may have a view to the contrary. In the present case even this court does not see any good reason to take a different view of the matter than the one that has been adopted by the court below in this regard. The impugned order does not appear to have resulted in any abuse of court's process. 9. Application lacks merit and therefore stands dismissed.