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2023 DIGILAW 491 (HP)

Gokhran Devi v. State of Himachal Pradesh

2023-12-05

RAKESH KAINTHLA

body2023
JUDGMENT : Rakesh Kainthla, J. The present petition has been filed under Section 482 of Cr.P.C. read with Article 227 of the Constitution of India for issuance of directions to the respondents for submitting a charge-sheet in case F.I.R. No. 152 of 2018 registered for the commission of offences punishable under Sections 341, 323 and 325 read with Section 34 of IPC in the competent Court of law instead of sending it to the Gram Panchayat Tikkar. 2. It has been asserted that F.I.R. Nos. 150 of 2018 and 152 of 2018 were registered at Police Station Sadar Hamirpur on 05.06.2018 regarding the same incident. F.I.R. No. 152 of 2018 was registered on the statement of Dalip Singh and F.I.R. No. 150 of 2018 was registered on the information of Gian Chand Bhatia. Gian Chand subsequently made a complaint to the police stating that injury no. 2 sustained by Gokhran Devi had occurred before the incident. The Investigating officer approached the Medical Officer, who opined on 17.11.2018 that duration of the injury no.2 on the person of the victim Gokhran Devi was more than 3 weeks. Initially, injury No. 2 was stated to be grievous; however, the said injury was stated to be simple after more than 5½ months of the issuance of the initial opinion. Investigating Officer deleted Section 325 of IPC and filed the challan before the Gram Panchayat Tikkar Tehsil and District Hamirpur, H.P. The victim approached the learned Judicial Magistrate First Class Court No.1, Hamirpur by filing an application under Section 156(3) of Cr.P.C. against the deletion of Section 325 of IPC; however, this application was dismissed by the Magistrate. The victim also made a complaint to the Superintendent of Police, Hamirpur but no action was taken. The opinion dated 27.11.2018, of the Medical Officer is contrary to the facts of the case. The victim was examined on 05.06.2018 and 06.06.2018. Her arm was plastered. The Investigating Officer erred in deleting the Section 325 of IPC. Both the cross cases are to be tried by the same Court and it is not permissible to try one case by the Court of Judicial Magistrate and the other by Gram Panchayat. Hence, the present petition seeking direction to withdraw the case from Gram Panchayat Tikkar, Tehsil & District Hamirpur, and file it before the competent Court of law. 3. Hence, the present petition seeking direction to withdraw the case from Gram Panchayat Tikkar, Tehsil & District Hamirpur, and file it before the competent Court of law. 3. A reply was stated to be filed by the State/respondents no.1 to 3 but the same is not on the record. 4. The petition was opposed by respondent no.5 by filing a reply making a preliminary submission regarding the lack of maintainability. It was asserted that the order sending the case to Gram Panchayat was not challenged as per law. The Gram Panchayat has exclusive jurisdiction to deal with the cases mentioned in the schedule of the H.P. Panchayat Raj Act. It is not permissible to try the cases cognizable by Gram Panchayat by some other Court. Gokhran Devi, etc. were aggressors and they had lodged a false F.I.R. Hence, it was prayed that the petition be dismissed. 5. I have heard Mr Kashmir Singh Thakur, learned counsel for the petitioner; Mr R.P.Singh learned Deputy Advocate General for respondents nos. 1 to 3 and Mr Sanjay Kumar Sharma, learned counsel for respondent no.5 6. Mr. Kashmir Singh Thakur, learned counsel for the petitioner submitted that both the F.I.Rs arise out of the same incident; therefore, they should be tried by one Court. It is not permissible to send one F.I.R. to Gram Panchayat and another to the Court of Judicial Magistrate for trial.The Investigating Officer erred in seeking the opinion after 5½ months and the Medical Officer erred in concluding that the injury was not sustained during the incident but before the incident. Hence, he prayed that the present petition be allowed, deletion of Section 325 of IPC be set aside and both the F.I.Rs. be ordered to be tried by the same Court 7. Mr. R.P.Singh learned Deputy Advocate General for respondents no. 1 to 3 submitted that the police conducted the investigation and submitted the report to the Court. The deletion of Section 325 of IPC was challenged by the petitioner before the learned Judicial Magistrate First Class, Hamirpur, but the plea of the petitioner was rejected. The order has attained its finality as no proceedings were taken place to challenge the same; therefore, he prayed that the present petition be dismissed. 8. The deletion of Section 325 of IPC was challenged by the petitioner before the learned Judicial Magistrate First Class, Hamirpur, but the plea of the petitioner was rejected. The order has attained its finality as no proceedings were taken place to challenge the same; therefore, he prayed that the present petition be dismissed. 8. Mr Sanjay Kumar, learned counsel for respondent no.5 submitted that the offences mentioned in the Schedule are cognizable by the Gram Panchayat and it is impressible for some other Court to try these offences as per Section 34 of H.P. Panchayat Raj Act. The petitioner had not challenged the order passed by the Judicial Magistrate First Class, Hamirpur and the order has attained finality. This Court does not appreciate the evidence while exercising the power under Section 482 of Cr.P.C. and cannot adjudicate whether Section 325 of IPC was rightly deleted or not; therefore, he prayed that the present petition be dismissed. 9. I have given considerable thought to the submissions at the bar and have gone through the record carefully. 10. It was laid down by the Hon’ble Supreme Court in State of Maharashtra v. Maroti, (2023) 4 SCC 298 : 2022 SCC OnLine SC 1503 that the High Court exercising the power under Section 482 of Cr.P.C. cannot examine the truthfulness, sufficiency and admissibility of the evidence. It was observed: “21. If FIR and the materials collected disclose a cognizable offence and the final report filed under Section 173(2)CrPC on completion of investigation based on it would reveal that the ingredients to constitute an offence under the POCSO Act and a prima facie case against the persons named therein as accused, the truthfulness, sufficiency or admissibility of the evidence are not matters falling within the purview of exercise of power under Section 482CrPC and undoubtedly they are matters to be done by the trial court at the time of trial. This position is evident from the decisions referred to supra.” 11. In the present case, the charge sheet has been filed and it is for the learned Trial Court to see the truthfulness or otherwise of the allegations. It was laid down by the Hon’ble Supreme Court in Iqbal v. State of U.P., (2023) 8 SCC 734 : 2023 SCC OnLine SC 949, that when the charge sheet has been filed, learned Trial Court should be left to appreciate the evidence. It was laid down by the Hon’ble Supreme Court in Iqbal v. State of U.P., (2023) 8 SCC 734 : 2023 SCC OnLine SC 949, that when the charge sheet has been filed, learned Trial Court should be left to appreciate the evidence. It was observed: “At the same time, we also take notice of the fact that the investigation has been completed and charge-sheet is ready to be filed. Although the allegations levelled in the FIR do not inspire any confidence more particularly in the absence of any specific date, time, etc. of the alleged offences, yet we are of the view that the appellants should prefer a discharge application before the trial court under Section 227 of the Code of Criminal Procedure (CrPC). We say so because even according to the State, the investigation is over and the chargesheet is ready to be filed before the competent court. In such circumstances, the trial court should be allowed to look into the materials which the investigating officer might have collected forming part of the chargesheet. If any such discharge application is filed, the trial court shall look into the materials and take a call whether any case for discharge is made out or not.” 12. Therefore, it is impermissible for this Court to enter into a factual dispute whether an offence punishable under Section 325 of IPC is made out in the case or not. This dispute is to be resolved by the Court where the lis is pending and this Court cannot usurp the jurisdiction vested in the learned Trial Court while exercising the power under Section 482 of Cr.P.C. Thus, the prayer that this Court should adjudicate and declare that the offence punishable under Section 325 of IPC was wrongly deleted cannot be granted. 13. The petitioner has also prayed that both the cases should be tried together. This prayer merits acceptance. It was laid down by the Hon’ble Supreme Court in Nathi Lal vs. State of U.P. 1990 (sup) SCC 145, that it is a fair procedure that cross-cases should be tried by the same Judge to avoid conflicting findings in the same matter. It was observed: “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. It was observed: “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 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.” 14. This petition was reiterated in State of M.P. v. Mishrilal, (2003) 9 SCC 426 , wherein it was observed:- 7. Undisputedly, accused Mishrilal lodged the report to the police vide Ext. D-8 over the same incident which happened on 5-3-1987, in which he had clearly stated that the injuries were sustained by him and his son Madhusudan at the hands of the prosecution party. It is also not disputed that on the strength of the complaint lodged by Mishrilal, the investigation was also carried out and a challan was filed, namely, Crime Case No. 52 of 1987 under Sections 147, 148, 149 and 324 IPC 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 the aggressor. ……….. 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 cases together by the same court in view of the guidelines devised by this Court in Nathi Lal case [1990 Supp SCC 145: 1990 SCC (Cri) 638]. It would have been just, fair and proper to decide both cases together by the same court in view of the guidelines devised by this Court in Nathi Lal case [1990 Supp SCC 145: 1990 SCC (Cri) 638]. The cross-cases should be tried together by the same court irrespective of the nature of the offence involved. The rationale behind this is to avoid conflicting judgments over the same incident because if cross-cases are allowed to be tried by two courts separately there is a 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 one of them must be false. In such a situation, the legal obligation is cast upon the investigating officer to make an endeavour to find out the truth and to cull out the truth from falsehood. Unfortunately, the investigating officer has failed to discharge the obligation, resulting in a grave miscarriage of justice. 15. It is true that Section 34 of the H.P. Panchayat Raj Act provides that no Court shall take cognizance of any case, which is cognizable under the Act by the Gram Panchayat for the area. Thus, an exclusive jurisdiction has been conferred upon the Gram Panchayat to try the cases mentioned in the Schedule. However, the conferment of the exclusive jurisdiction does not bar the trial of the matter by the Higher Court. In Sudhir v. State of M.P., (2001) 2 SCC 688 , the Hon’ble Supreme Court was concerned with the two cross-cases arising out of the same incident out of which one was triable by the Sessions Court and the other was triable by the Court of Magistrate. The Hon’ble Supreme Court held that in such a situation, both matters should have been tried by the court of Sessions Judge to avoid conflicting findings. It was observed: 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. 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 the nineteen hundred and twenties a Division Bench of the Madras High Court (Waller and Cornish, JJ.) made a suggestion (Goriparthi Krishtamma, In re [1929 MWN 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”. 9. Close to its heels Jackson, J., made an exhortation to the then legislature to provide a mechanism as a statutory provision for the trial of both cases by the same court (vide Krishna Pannadi v. Emperor [AIR 1930 Mad 190: 31 Cri LJ 461]). The learned Judge said thus: “There is no clear law as regards the procedure in counter-cases, a defect which the legislature ought to remedy. It is a generally recognized rule that such cases should be tried in quick succession by the same Judge, who should not pronounce judgment till the hearing of both cases is finished.” 10. We are unable to understand why the legislature is still trying to incorporate such a salubrious practice as a statutory requirement in the Code. The practical reasons for adopting a procedure that such cross-cases shall be tried by the same court can be summarised thus: (1) It staves off the danger of an accused being convicted before his whole case is before the court. (2) It deters conflicting judgments being delivered upon similar facts. (3) In reality the case and the counter-case are, to all intents and purposes, different or conflicting versions of one incident. 11. In fact, many High Courts have reiterated the need to follow the said practice as a necessary legal requirement for preventing conflicting decisions regarding one incident. This Court has given its approval to the said practice in Nathi Lal v. State of U.P. [1990 Supp SCC 145: 1990 SCC (Cri) 638] The procedure to be followed in such a situation has been succinctly delineated in the said decision and it can be extracted here : (SCC pp. 145-46, para 2) “2. This Court has given its approval to the said practice in Nathi Lal v. State of U.P. [1990 Supp SCC 145: 1990 SCC (Cri) 638] The procedure to be followed in such a situation has been succinctly delineated in the said decision and it can be extracted here : (SCC pp. 145-46, para 2) “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 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.” 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 offences exclusively triable by a Court of Session, 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, the power to commit the case to the Court of Session, albeit none of the offences involved therein is exclusively triable by the Sessions Court. Though the next case cannot be committed in accordance with Section 209 of the Code, the Magistrate has, nevertheless, the 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.” 13. The above section does not make an inroad into Section 209 because the former is intended to cover cases to which Section 209 does not apply. When a Magistrate has committed a case on account of his legislative compulsion by Section 209, its cross-case, having no offence exclusively triable by the Sessions Court, must appear to the Magistrate as one which ought to be tried by the same Court of Session. We have already adverted to the sturdy reasons why it should be so. Hence the Magistrate can exercise the special power conferred on him by virtue of Section 323 of the Code when he commits the cross-case also to the Court of Session. Commitment under Sections 209 and 323 might be through two different channels, but once they are committed their subsequent flow could only be through the stream channelised by the provisions contained in Chapter XVIII. 14. Now we have to deal with the powers of the Sessions Court in the light of Section 228 of the Code which says that when the Sessions Court, after hearing under Section 227, is of the opinion that none of the offences presumed to have been committed by an accused is triable by a Court of Session he is to transfer the case for trial to the Chief Judicial Magistrate. 15. In this context, we may point out that a Sessions Judge has the power to try any offence under the Penal Code, 1860. It is not necessary for the Sessions Court that the offence should be one exclusively triable by a Court of Session. 15. In this context, we may point out that a Sessions Judge has the power to try any offence under the Penal Code, 1860. It is not necessary for the Sessions Court that the offence should be one exclusively triable by a Court of Session. This power of the Sessions Court can be discerned from a reading of Section 26 of the Code. When it is realised that the Sessions Judge has the power to try any offence under the Penal Code, 1860 and when a case involving an offence not exclusively triable by such court is committed to the Court of Session, the Sessions Judge has to exercise discretion regarding the case which he has to continue for trial in his court and the case which he has to transfer to the Chief Judicial Magistrate. For this purpose, we have to read and understand the scope of Section 228(1) in light of the above legal position. The sub-section is extracted below: “228. (1) If, after such consideration and hearing as aforesaid, the Judge is of the opinion that there is ground for presuming that the accused has committed an offence which — (a) is not exclusively triable by the Court of Session, he may frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate, and thereupon the Chief Judicial Magistrate shall try the offence in accordance with the procedure for the trial of warrant cases instituted on a police report; (b) is exclusively triable by the court, he shall frame in writing a charge against the accused.” (emphasis supplied) 16. The employment of the word “may” at one place and the word “shall” at another place in the same sub-section unmistakably indicates that when the offence is not triable exclusively by the Sessions Court it is not mandatory that he should order transfer of the case to the Chief Judicial Magistrate after framing a charge. In situations where it is advisable for him to try such an offence in his court, there is no legal obligation to transfer the case to the Chief Judicial Magistrate. In situations where it is advisable for him to try such an offence in his court, there is no legal obligation to transfer the case to the Chief Judicial Magistrate. One of the instances for not making the transfer is when a case and a counter-case have been committed to the Sessions Court and one of those cases involves an offence exclusively triable by the Sessions Court and the other does not involve any such offence. 17. In the present case, the Sessions Judge ought not to have transferred the second case to the Chief Judicial Magistrate as he did, but he himself should have tried it in the manner indicated in Nathi Lal [1990 Supp SCC 145: 1990 SCC (Cri) 638]. To facilitate such a procedure to be adopted we have to set aside the order passed by the Sessions Judge in the second case. We do so. 16. Therefore, it is permissible to try the cases by the Higher Court even if the exclusive jurisdiction has been conferred upon a different Court when two incidents arise of the same incident. 17. H.P. Panchayati Raj Act also provides that the Gram Panchayat can send the case to the Judicial Magistrate in certain eventualities under Sections 30 and 37 of the Act and the exclusion of the jurisdiction of the other Courts is not absolute. 18. This Court has transferred the matter from the Gram Panchayat to the Court of a Magistrate in a case titled Roshan Lal vs. State of H.P. in Cr.MMO No. 543 of 2019 decided on 01.11.2019. Thus, the conferment of the exclusive jurisdiction upon the Gram Panchayat under Section 34 of the H.P. Panchayati Raj Act is not an impediment to the trial of the cross-cases by the Magistrate. 19. In the view above, the present petition is partly allowed and the F.I.R. No.152 of 2018, dated 05.06.2018 and consequent charge-sheet arising out of the same F.I.R. pending before the Gram Panchayat Tikkar, District Hamipur, H.P. is ordered to be transferred to the Court of learned Additional Judicial Magistrate, Hamirpur, H.P. where the cross-case arising out of case F.I.R. No.150 of 2018 dated 05.06.2018 is stated to be pending. It will be permissible for the learned Additional Chief Judicial Magistrate, Hamirpur, H.P. to refer the matter to the learned Chief Judicial Magistrate, Hamirpur, in case another case is pending before any other Court to ensure that both cases are tried together. 20. The observation made hereinabove shall remain confined to the disposal of the petition and will have no bearing, whatsoever, on the merits of the case. 21. The present petition stands disposed of alongwith the miscellaneous application(s), if any.