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Allahabad High Court · body

2019 DIGILAW 784 (ALL)

Umashankar Tivari v. State of U. P.

2019-03-29

SANJAY KUMAR SINGH

body2019
JUDGMENT : Sanjay Kumar Singh, J. 1. Heard learned counsel for the petitioner and learned Additional Government Advocate on behalf of the State/opposite party no.1 and perused the record with the assistance of learned counsel for the parties. 2. This petition under Article 227 of the Constitution of India has been preferred by the petitioner with a prayer to quash the impugned order dated 17.11.2017 passed by Chief Judicial Magistrate, Fatehpur in Criminal Case No.1653 of 2015 (State of U.P. vs. Shivnarayan and others) arising out of Case Crime No.110 of 2015, under sections 323, 324, 504 & 506 I.P.C., Police Station Khakhreru, District Fatehpur, whereby application dated 22.09.2016 of the opposite party no.2 has been allowed and the order dated 04.12.2018 passed by VIIIth Additional Session Judge, Fatehpur in Criminal Revision No.4 of 2018, whereby revision preferred by the petitioner against the order dated 17.11.2017 has been dismissed. 3. It is submitted by the learned counsel for the petitioner that opposite party no.2 regarding the incident dated 24.06.2015 at 4.45 p.m. lodged a report on the same day at 18.30 hrs. registered as N.C.R. No.0046 of 2015 against the petitioner and three other accused persons namely Shiv Narayan, Rama Shanker and Mantu under Sections 323, 504, 506 I.P.C. Thereafter with regard to incident dated 24.06.2015, F.I.R. was lodged by petitioner on 25.06.2015 at 18.00 hrs registered as Case Crime No.109 of 2015 at Police Station Khakhreru, District Fatehpur. 4. The aforesaid NCR lodged by the opposite party no.2 was later on converted into Case Crime No.110 of 2015, in which after investigation the investigating officer submitted charge-sheet under Sections 323, 324, 504 & 506 I.P.C., on 22.12.2015 the Judicial Magistrate, Khaga, Fatehpur took cognizance and the case was registered as Criminal Case No.1655 of 2015 (State of U.P. vs. Shiv Narayan and others), thereafter transferred to court of Chief Judicial Magistrate, Fatehpur on 01.09.2016. 5. In Case Crime No.109 of 2015 also the investigating officer submitted charge-sheet dated 24.06.2015 under Sections 354, 323, 504, 506 & 308 I.P.C. on which Additional Chief Judicial Magistrate-Xth Fatehpur took cognizance on 20.08.2015 and case was registered as Criminal Case No.127 of 2015 (State of U.P. vs. Kailash Nath Ojha). Thereafter said case was transferred on 16.05.2016 to Additional Session Judge/F.T.C. Ist Fatehpur and new case number was allotted as S.T.No.42 of 2016 (State of U.P. Vs. Kailash Nath Ojha and others). Thereafter said case was transferred on 16.05.2016 to Additional Session Judge/F.T.C. Ist Fatehpur and new case number was allotted as S.T.No.42 of 2016 (State of U.P. Vs. Kailash Nath Ojha and others). In the said case statement of Uma Shanker Tiwari has been recorded as P.W.-1. 6. On 22.09.2016, opposite party no.2 (informant of Case Crime No.110 of 2015) moved an application under Section 323 Cr.P.C. before the Chief Judicial Magistrate, Fatehpur for committal of Criminal Case No.1653 of 2015 before Additional Session Judge/F.T.C Ist Fatehpur where S.T. No.42 of 2016 arising out of Case Crime No.109 of 2015 is going on mainly on the ground that both the aforesaid cases are cross case arising from same incident, therefore, both the cases be tried together. 7. On the said application dated 22.09.2016 of the opposite party no.2, an objection dated 27.05.2017 was filed on behalf of the petitioner (informant of Case Crime No.109 of 2015). The said application dated 22.09.2016 of the opposite party no.2 was allowed by order dated 17.11.2017 of the Chief Judicial Magistrate, Fatehpur, taking into consideration of the judgments of the Apex Court in the case of Nathi Lal and others vs. State of U.P. and another, 1990 (Supp) SCC 145, Sudhir and others vs. State of M.P. 2001 (2) SCC, 688 & State of M.P. vs. Misrilal (dead) and others, 2003(9) SCC 426 . 8. Here it would be useful to quote the relevant findings and the principles laid down by the Apex Court in the aforesaid judgments, which are as follows:- (i) Nathi Lal and others vs. State of U.P. and another, 1990 (Supp) SCC 145. In the said case, the Apex Court has laid down the procedure of trial of cross case. Para-2 of the said judgment is quoted here-in-below:- "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 recoding 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 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 corss case. But both the judgments must be pronounced by the same learned Judge one after the other." (ii) Sudhir and others vs. State of M.P. 2001 (2) SCC, 688. In the said case the Apex Court following the principles laid down in case of Nathi Lal (supra) has also held that counter or cross case should be disposed of by the same court and judgment should be pronounced on the same day. Para 8 and 12 of the said judgment are quoted here-in-below:- “8. 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. Way back in nineteen hundred and twenties a Division Bench of the Madras High Court (Waller, and Cornish, JJ) made a suggestion (In Re Goriparthi Krishtamma -1929 Madras Weekly Notes 881) that "a case and counter case arising out of the same affair should always, if practicable, be tried by the same court, and each party would represent themselves as having been the innocent victims of the aggression of the other." 12. 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 Sessions, but none of the offences involved in the other case is exclusively triable by the Sessions Court. 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 Sessions, but 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 Sessions, 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: "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." (iii) State of M.P. vs. Misrilal (dead) and others, 2003 (9) SCC 426 . The Apex Court in the said case again reiterating the view taken in case of Nathi lal (supra) held that the cross cases should be tried together by the same court irrespective of nature of 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. 9. The Chief Judicial Magistrate while allowing the application dated 22.09.2016 of the opposite party no.2 held that both the cases are cross case and specific finding has been recorded in the order dated 17.11.2017 that :- (i) Place of incident as shown in the maps of both the cases is largely the same with minor difference as obviously is natural in the context of rival versions of the parties. (ii) The case of two rival cross cases, incident, date and place of occurrence is also similar. (iii) The aggressors of two cross cases and the injured are also largely similar. (iv) The time of two incidents is also largely the same. (v) As per the F.I.R versions, lodged at different time and a date is repeated by 01.15 hrs. Further finding has been recorded that difference in this context is minor and that too is on the basis of versions of the parties. (vi) The question of two cases being cross case cannot be determined by keeping a microscopic scale in the hand and thereafter measuring each aspect minutely, as this is not a law of Physics or Mathematics. (vii) Lastly, conclusion has been drawn that question of law being cross case cannot be subjected to strict objectively rather that has to be largely objective and in part subjective in nature and, as such, hold that both the aforesaid cases are cross cases. 10. Aggrieved by the aforesaid order dated 17.11.2017, the petitioner preferred revision before the VIIIth Additional Session Judge, Fatehpur but that too has suffered dismissed and the order dated 17.11.2017 of Chief Judicial Magistrate, Fatehpur has been affirmed. Before the revisional court the stand was taken by the petitioner that both the cases are not cross case and opportunity of hearing was not given to the petitioner before passing the order dated 17.11.2017 by the Chief Judicial Magistrate. The revisional Court in the order dated 04.12.2018 has also after considering the entire facts and material on record of the case recorded specific finding that both the incidents are arising out of one occurrence and the difference of one hour 15 minutes in the time is not very much material. Place of occurrence are also same. The finding has also been recorded that aim and object for both the incidents are also the same. The petitioner had also filed his objection dated 27.05.2017 against the application dated 22.09.2016 of the opposite party no.2, therefore, the stand taken by the opposite party no.2 that he was not given opportunity of hearing, is also against the evidence on record. 11. The petitioner had also filed his objection dated 27.05.2017 against the application dated 22.09.2016 of the opposite party no.2, therefore, the stand taken by the opposite party no.2 that he was not given opportunity of hearing, is also against the evidence on record. 11. Before this Court, at the outset learned counsel for the petitioner argued that the opposite party no.2 (Shrawan Kumar) who has moved application dated 22.09.2016 is a stranger person and has no concerned with the present matter, therefore, he had no locus to move an application for committing the case. The said argument of the learned counsel for the petitioner is not sustainable because the opposite party no.2 Shrawan Kumar is informant of Case Crime No.110 of 2015, therefore, he cannot be said to be totally stranger person. 12. Per contra, learned Additional Government Advocate submitted that both the cases are cross case being counter cases to each other, which are clear on the face of record itself, therefore, there is no illegality in the impugned orders dated 17.11.2017 and 04.12.2018. 13. Main submission on behalf of the petitioner in this case is that both the aforesaid cases are not a cross case. Another plank of the submission is that the case arising out of Case Crime No.110 of 2015 is triable by the magistrate cannot be transferred to the Court of Session for deciding the same along with case arising out of Case Crime No.109 of 2015. Here it would be relevant to mention that under Code of Criminal Procedure cross case has not been defined. In fact cross case or counter case means a case asserted against opposite party after an original case has been made. Similarly the cross complaint means a claim asserted by the opposite party against another party to the action. In light of above discussion, this Court is of the view that S.T.No.42 of 2016 arising out of Case Crime No.109 of 2015 and Criminal Case No.1653 of 2015 arising out of Case Crime No.110 of 2015 are cross cases to each other, arising from same incident. 14. In order to meet out the another submission raised on behalf of the petitioner, whether a case triable by magistrate can be transferred to the Court of Session or not, it would be useful to refer Sections 209 & 323 of the Code of Criminal Procedure. 14. In order to meet out the another submission raised on behalf of the petitioner, whether a case triable by magistrate can be transferred to the Court of Session or not, it would be useful to refer Sections 209 & 323 of the Code of Criminal Procedure. Sections 209 & 323 are quoted here-in-below:- 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. 323. 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). 15. On reading of the aforesaid sections, it is apparent that under Section 209 Cr.P.C., the words “offence is triable exclusively by the Court of Session” has been mentioned while in Section 323, the words “the case is one which ought to be tried by the Court of Session” has been mentioned. 16. 15. On reading of the aforesaid sections, it is apparent that under Section 209 Cr.P.C., the words “offence is triable exclusively by the Court of Session” has been mentioned while in Section 323, the words “the case is one which ought to be tried by the Court of Session” has been mentioned. 16. In the light of said provisions there is no doubt that in the situation as mentioned in Section 323 Cr.P.C., the magistrate has power to commit the case to the Court of Session and in view of Section 26 of the Code of Criminal Procedure, Session Judge has the power to try any offence under the Indian Penal Code. It is not necessary for the Session Court that the offence should be one, exclusively triable by a Court of Session. In this context, it would be useful to quote Section 26 of the Code of Criminal Procedure:- 26. Courts by which offence are triable-Subject to the other provisions of this Code- (a) any offence under the Indian Penal Code (45 of 1860) may be tried by- (i) the High Court, or (ii) the Court of Session, or (iii) any other Court by which such offence is shown in the First Schedule to be triable; (Provided that any offence uner section 376, section 376A, section 376B, section 376C, section 376D or section 376E of the Indian Penal Code (45 of 1860) shall be tried as far as practicable by a Court presided over by a woman.) (b) any offence under any other law shall, when any Court is mentioned in this behalf in such law, be tried by such Court and when no Court is so mentioned, may be tried by- (i) the High Court, or (ii) any other Court by which such offence is shown in the First Schedule to be triable. 17. Considering the facts and circumstances of the case, in the light of above discussion and law laid down by the Apex Court, as mentioned above, I find that no prejudice would be caused to any of the parties, if both the aforesaid cases are tried and disposed of by one court. The procedural laws are designed to further the ends of justice and not to frustrate them by the introduction of endless technicalities. The procedural laws are designed to further the ends of justice and not to frustrate them by the introduction of endless technicalities. The object of the Code is to ensure that an accused person gets a full and fair trial along with certain well established and well-understood principles that accord with our notions of natural justice. If there be substantial compliance with the requirements of law providing the accused a full and fair trial in accordance with principles of natural justice, no order of a competent Court should be reversed or altered in appeal or revision on account of a procedural irregularity unless the same results in miscarriage of justice. 18. In view of above, this Court is of the view that there is no miscarriage of justice in this case. The observations and findings recorded in the impugned order dated 17.11.2017 passed by the Chief Judicial Magistrate and in the order dated 04.12.2018 passed by the VIII Additional Session Judge, Fatehpur are impeccable. I do not find any manifest error of law or perversity in the aforesaid impugned orders and as such no interference is required in the impugned orders. 19. The petition lacks merit and is accordingly dismissed.