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2019 DIGILAW 1639 (HP)

Roshan Lal v. State of Himachal Pradesh

2019-11-01

SANDEEP SHARMA

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JUDGMENT : Sandeep Sharma, J. 1. Petitioner namely, Roshan Lal, who is an accused in case FIR No. 18/18 registered at police Station, Sujanpur, District Hamirpur, Himachal Pradesh and facing trial before Gram Panchayat, Chabutra, Tehsil Sujanpur, District Hamirpur, H.P. has approached this Court in the instant proceedings filed under Section 482 of Cr.P.C. with a prayer to transfer the aforesaid trial being faced by him to the Court of learned Judicial Magistrate, 1st Class-IV, Hamirpur, District Hamirpur, H.P. where cross FIR No. 19/18, having been filed by him qua the same incident is pending adjudication. 2. In nutshell, case of the petitioner is that since two FIR's bearing No. 18/18 and 19/18 came to be lodged at Police station, Sujanpur qua one incident, investigating Officer after conclusion of the investigation in both the FIR's ought to have filed challan in both the cases before the learned Judicial Magistrate, 1st Class-IV, Hamirpur, H.P. because offences under Sections 341, 323, 504 and 34 of IPC alleged to have been committed in FIR No. 19/18 are only triable by Judicial Magistrate, 1st Class-IV, Hamirpur, H.P. 3. Precisely, the facts as emerge from the record are that the petitioner herein lodged FIR bearing No. 19/18 at police Station, Sujanpur on 22.2.2018, alleging therein that on the date of alleged incident, at 2:00 PM, when he driving his scooter bearing No. HP-84-2280 reached near Graud Gatwala, accused Purshotam, his wife Karmi Devi and son Sanjay not only started abusing, but also manhandled him, as a consequence of which, he suffered simple as well as grievous injuries. Police after recording the statement of complainant (petitioner herein) under Section 154 Cr.P.C. registered a case under Sections 341, 323, 504 and 34 of IPC against the accused. On the same day, accused referred hereinabove, also lodged FIR bearing No. 18/18 at police Station, Sujanpur, alleging therein that petitioner herein gave beatings to them, as a consequences of which, they suffered simple as well as grievous injuries. In that case, police after recording the statements of the complainant and the victims registered a case under Sections 341, 323, 325, 504 and 34 of IPC against the petitioner herein. 4. In that case, police after recording the statements of the complainant and the victims registered a case under Sections 341, 323, 325, 504 and 34 of IPC against the petitioner herein. 4. After completion of the investigation in both the FIR's, Investigating Officer presented the challan in FIR No. 18/18 before the Gram Panchayat, Chabutra, Tehsil Sujanpur, District Hamirpur, H.P since in that case offences alleged to have been committed by the accused are/were exclusively triable by Gram Panchayat, whereas in other FIR No. 19/18 having been filed by the petitioner, Investigating Officer filed challan in the court of learned Judicial Magistrate, 1st Class, Court No. 4, Hamirpur, H.P. as offences alleged to have been committed in that case are/were exclusively triable by learned Judicial Magistrate. As per the pleadings adduced on record challan filed in two different cases before two different forums are still pending adjudication. 5. Mr. P.M. Negi, learned counsel representing the petitioner vehemently argued that since two cross FIR's qua the same incident were filed on the same day at one police station, Investigating Officer ought to have filed challans, if any, in one Court i.e. Judicial Magistrate, 1st Class, Court No. 4, Hamirpur, H.P. because offences alleged to have been committed by the petitioner in FIR No. 19/18 are/were admittedly triable by Magistrate and not by Gram Panchayat. Mr. Negi, further contended that though as per investigation, offences alleged to have been committed by the accused in FIR No. 18/18 are/were triable by Gram Panchayat, Chabutra, but since both the FIR's pertains to one incident, Investigating Officer ought to have filed challan in the Court of learned Judicial Magistrate, 1st Class, Court No. 4, Hamirpur, H.P. so that no contradictory judgments qua the same incident are passed by two different courts. 6. Mr. Kunal Thakur, learned Deputy Advocate General, while admitting that both the FIR's bearing No. 18/18 and 19/18 pertain to one incident, fairly contended that since offences alleged to have been committed in FIR No. 19/18 are/were triable by Judicial Magistrate, Investigating Officer ought to have filed challan, if any, in earlier FIR bearing No. 18/18 having been filed by the complainant Smt. Karmi Devi in the Court of Judicial Magistrate, so that both the cases could be heard and decided by one Magistrate having jurisdiction. 7. 7. Having heard learned counsel representing the parties and perused the material available on record, this Court finds force in the submissions having been made by learned counsel for the parties. Hon'ble Apex Court in case titled State of M.P. vs. Mishrilal (dead) and Others, 2003 STPL 6725 SC, has elaborately dealt with the aforesaid aspect of the matter and has also laid down procedure to be followed by the trial Court while trying cross cases. At this stage, it would be apt to reproduce relevant paras of the judgment herein:- 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 Mishriulal, investigation was also carried out and challan was filed namely crime case no. 52/87 under Sections 147,148,149 and 324IPC 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 vs. State of U.P. 1990 Supp SCC 145, pointed out the procedure to be followed by the Trial Court in the event of cross cases. It was observed 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 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. 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. 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 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 (supra). The cross- cases should be tried together by the same court irrespective of the nature of the offence involved. The rational 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." 8. Careful perusal of aforesaid judgment rendered by the Hon'ble Apex Court reveals that very purpose of trying cross cases by one court is to avoid likelihood of conflicting judgments. In case cross cases pertaining to one incident are allowed to be tried/decided by two different courts separately, there is every likelihood of rendering conflicting judgments. 9. Careful perusal of aforesaid judgment rendered by the Hon'ble Apex Court reveals that very purpose of trying cross cases by one court is to avoid likelihood of conflicting judgments. In case cross cases pertaining to one incident are allowed to be tried/decided by two different courts separately, there is every likelihood of rendering conflicting judgments. 9. Hon'ble Apex Court while laying down the procedure to be followed by the Courts while trying cross cases has categorically held that Judge concern after recording evidence in one case must hear the arguments, but not deliver the judgment till the time he/she hears and reserves judgment in other case. In the case at hand, it is not in dispute that Gram Panchayat, Chabutra is competent to try the case registered against the accused in FIR No. 18/18, under Sections 341, 323, 325, 504 and 34 of IPC, but since offences alleged to have been committed in cross FIR No. 19/18, under Sections 341, 323, 504 and 34 of IPC are exclusively triable by Judicial Magistrate, case pending before Gram Panchayat, Chabutra can only be transferred to learned Judicial Magistrate, 1st Class, Court No. 4, Hamirpur, H.P. so that both cross cases are heard and decided by one Judge and no conflicting judgment is passed. 10. Consequently, in view of the peculiar facts and circumstances of the case as well as judgment rendered by the Hon'ble Apex Court in State of M.P. vs. Mishrilal (dead) and Others (supra), this Court deems it fit to order for trial of both the FIR's No. 18/18 and 19/18 by learned Judicial Magistrate, 1st Class, Court No. 4, Hamirpur, District Hamirpur, H.P. The Gram Panchayat concerned is directed to transfer the record of case FIR No. 18/18, to the learned Judicial Magistrate, 1st Class, Court No. 4, Hamirpur, District Hamirpur, H.P. forthwith, enabling it to proceed with the matter in terms of the judgment passed by this Court. 11. Learned counsel representing the parties undertake to cause presence of their respective clients before the learned Judicial Magistrate, 1st Class, Court No. 4, Hamirpur, District Hamirpur, H.P. on 20.11.2019, enabling it to proceed with the matter in terms of the instant judgment. Record, if any, be sent forthwith. 12. Accordingly, the present petition is allowed in the aforesaid terms. Pending applications, if any, also stands disposed of.