IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.6242 of 2008 ANAMOL SINGH & ORS Versus THE STATE OF BIHAR & ANR ----------- 03. 30.04.2010 Heard learned counsel for the petitioners and the State. The present application has been filed for quashing of the order dated 14.07.2005, passed in Complaint Case No. 328 of 2005 whereby the cognizance has been taken under Sections 323, 341, 380, 427 of the I.P.C. and under Section 3(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 as well as quashing of the entire prosecution of Aurangabad P.S. Case No. 186 of 2005 registered under Sections 323, 341, 337, 427, 504/34 of the I.P.C. The contention of the learned counsel for the petitioners is that both the cases have been lodged for the offences alleged to have been taken place on 24.04.2005 and in both the cases, i.e. in the complaint case and the police case, the informant is one Shiv Pujan Kumar @ Shiv Pujan Kumar Paswan. The police case was registered on 26.04.2005 whereas the complaint was filed on 28.04.2005. It has further been submitted on behalf of the learned counsel for the petitioners that in para 9 of the complaint, it has been mentioned that the police was informed about the occurrence. 2 It is further contended by the learned counsel for the petitioners that in both the cases the cognizance has been taken whereas in the police case, the charges have been framed. In the facts and circumstances of the case, I am not inclined to quash the order of cognizance dated 14.07.2005 and the proceedings of the police case registered in 2005. However, in the interest of justice, it is proper that both the aforesaid cases should be tried in one court though there is no such provision in Cr.P.C. but Hon’ble Supreme Court repeatedly directed for conducting the trial of case counter case or the two cases for the same occurrence. One of such cases is Sudhir & Ors versus State of M.P. reported in 2001(2) SCC 688 where the procedure has been laid down for trial of such cases in one court in para 8 to 16 which reads as follows:- 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 the nineteen 3 hundred and twenties a Division Bench of the Madras High Court(Waller and Cornish, JJ.) made a suggestion(Goriparthi Krishtamma, In re 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 trial of both cases by the same court(vide Krishna Pannadi v. Emperor). 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 parrying 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 4 summarized 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. 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 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 5 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 offence 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, power to commit 6 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 7 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 Indian Penal Code. 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 realized that the Sessions Judge has the power to try any offence under the Indian Penal Code and when a case involving offence not exclusively triable by such court is committed to the Court of Sessions, the 8 Sessions Judge has to exercise a 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 the 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 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. 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 9 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 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. From the aforesaid ratio as laid down by Apex Court it is apparent even out of the two cases one is triable by Court of Sessions whereas other is triable and pending before Magistrate even then Magistrate can commit the case to the Court of Sessions by resorting to the powers under Section 323 Cr.P.C. which reads as follows.:- “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 10 Court under the provisions hereinbefore contained (and thereupon the provision of Chapter XVIII shall apply to the commitment so made).” The matters under consideration in the present case also the complaint case and the police have been lodged by one informant/complainant for one occurrence dated 24.04.2005 wherein the complaint case the cognizance has also been taken under Section 3(x) of the Scheduled Cast/Scheduled Tribe(Prevention of Atrocities) Act which is triable by Court of Sessions whereas in the police case all the offences alleged are triable by the Magistrate. The aforesaid principle has been laid down by the Apex Court in order to avoid the conflicting judgments in two cases arising out of the same occurrence. The present anomalous situation would not have arisen had the Magistrate while conducting inquiry in the complaint case would have called for a report from the police station by resorting to the power under Section 210 of the Cr.P.C. as in paragraph 9 of the complaint the complainant has specifically mentioned that information with regard to the occurrence was already given to the police. In view of the discussions made above, let the District & Sessions Judge, Aurangabad issue appropriate directions for conduction of trial of complaint case No. 328/2005 and trial of Aurangabad P.S. Case No. 186/2005 by 11 one Court if the trial of either case has not reached to an advance stage. With the observation made above, this application is disposed off. Shageer (Dinesh Kumar Singh, J.)