Criminal Misc. No. M- 27852 of 2010 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Misc. No. M- 27852 of 2010 Date of decision:- 07.02.2011 Veerpal Kaur ...Petitioner Versus State of Punjab and others ...Respondents CORAM: HON'BLE MS. JUSTICE RITU BAHRI Present:- Mr. P.P.S. Duggal, Advocate for the petitioner. Mr. Vishal Munjal, Addl.A.G. Punjab for respondent No.1-State. None for respondent Nos.2 to 6. RITU BAHRI J. This petition under Section 482 of the Code of Criminal Procedure read with under Article 227 of the Constitution of India is for setting aside the order (Annexure P-5) dated 06.8.2010, by which an application for direction that criminal complaint under Section 323 of the Code of Criminal Procedure and FIR No. 155 dated 09.10.2006 under Sections 307,324 IPC read with Section 34 IPC and under Section 25/30/54/59 of Arms Act, registered at Police Station Mamdot, District Ferozepur, which is a cross case, should be tried together in the interest of justice. Brief facts of the case are that on 08.10.2006 around 6.30 PM the petitioner got injuries from respondent Nos.2 to 6. The police got registered an FIR bearing No.155 dated 09.10.2006 under Sections 307,324 IPC read with Section 34 IPC and under Section 25/30/54/59 of Arms Act, registered at Police Station Mamdot, District Ferozepur on the statement of Puran Singh, who has Criminal Misc. No. M- 27852 of 2010 -2- stated that on 08.10.2006 at about 6.30 PM he went to his village where Resham Singh son of Harnam Singh armed with sword and his son Baljinder Singh armed with 12 bore double barrel gun came and the scuffle took place. Baljinder Singh fired a shot on Puran Singh from his double barrel gun. The pallets of the shot hit Puran Singh and he fell down. Baljinder Singh gave one more fire shot, which acrossed his head. Resham Singh gave blows with his sword two times to Puran Singh. Petitioner Veerpal Kaur filed a complaint against the respondent Nos.2 to 7 on 22.1.2007. Proceedings in the FIR are pending in the Court of Additional Sessions Judge, Ferozepur, where the challan has been presented. Proceedings in the complaint are pending before the Judicial Magistrate 1st Class, Ferozepur. Her application for hearing both the cases together has been declined on the ground that the complainant has not produced copy of challan or FIR to prove that it is a cross version case. Learned counsel for the petitioner Mr. P.P.S. Duggal, Advocate has placed reliance upon Section 323 of the Code of Criminal Procedure. Provision of Section 323 Cr.P.C. is reproduced as under:- “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].” He argues that as per the Section, it was the duty of Magistrate to inquire into offence and commit it to the Court of Sessions Judge if it appears to him at any stage that the case is one ought to be tried by the Court of Sessions. While dismissing the application of the petitioner, the trial Court has not applied its mind towards the fact that FIR and criminal complaint are result of same Criminal Misc. No. M- 27852 of 2010 -3- incident, which occurred on 08.10.2006. Being a cross case, it was the duty of the Magistrate to commit it to the Sessions Court. While granting bail to the son of the petitioner, it has been observed by the Court that it was a case of version and cross-version. Reliance has been placed on Kewal Krishan v. Suraj Bhan and anothers 1980 AIR (SC) 1780 and Abdul Latief v. State by Belthandgadi Police, Bantwal Taluk, Mangalore and others 2002(2) AICLR 23. Mr. Vishal Munjal, Addl.A.G. Punjab, on the other hand argued that the trial in the case of FIR No.155 of 2006 is at the advanced stage of hearing. The accused party is free to take all defences before the trial Court during trial. The version recorded by the petitioner Veerpal Kaur was found to be false. Investigation of the case reveals that Baljinder Singh son of petitioner Veerpal Kaur has caused injuries to the complainant. Accused Resham Singh has been found innocent in the investigation. The prayer of the petitioner for trying both the cases has been declined on the ground that complainant had not produced any document before the Court in the form of FIR or challan. I have heard learned counsel for the parties and have gone through the case file carefully. The trial Court has rightly dismissed the application of the petitioner on the short ground that no evidence was produced to prove that the FIR and complaint were originating from the same occurrence. To that extent the order of the trial Court is upheld. On merits, after going through the record of the case, which has transpired that FIR No.155 dated 09.10.2006 under Sections 307,324 IPC read with Section 34 IPC and under Section 25/30/54/59 of Arms Act, registered at Police Station Mamdot, District Ferozepur and the complaint titled 'Veerpal Kaur v.Gurdial Singh Fauji and others' originate from the same occurrence relating to 08.10.2006. As per Section 323 Cr.P.C. if the Magistrate found that a case ought to be tried by the Court of Sessions, he shall commit the Criminal Misc. No. M- 27852 of 2010 -4- case to that Court. The complaint pending before the trial Court under Section 326 IPC is triable by the Judicial Magistrate and as per Section 323 Cr.P.C., it was not to commit to the Court of Sessions. To that extent reliance placed by the petitioner in Section 323 Cr.P.C. is misplaced. The Supreme Court in Kewal Krishan's case (supra) examining the operation of Section 218 of the Code of Criminal Procedure has held that cases, which are exclusively triable by the Sessions Court instituted on police report under Section 173 Cr.P.C. should be tried separately than the other initiated on criminal complaint. In this case the Supreme Court has held that where two cases exclusively triable by the Court of Sessions are pending before it then it is desirable that the two cases should be tried separately but by the same Court. If the case has been instituted under Section 173 Cr.P.C. and other initiated on criminal complaint, they are counter cases, they should be tried by the Sessions Court but separately. The language of Section 323 Cr.P.C. is very clear. It gives power to the Magistrate to examine on the basis of investigation when a report under Section 173 Cr.P.C. is presented or when a report/criminal complaint presented before it, after examining the merits of the case, the Magistrate shall commit the FIR/criminal complaint to the Sessions Court if the offence, made out, is triable only by the Sessions Court. If the offence made out in the FIR or criminal complaint is triable by the Magistrate himself, he shall not commit it to the Sessions Court. In the present case, FIR No. 155 dated 09.10.2006 under Sections 307,324 IPC read with Section 34 IPC and under Section 25/30/54/59 of Arms Act, registered at Police Station Mamdot, District Ferozepur is pending before the Additional Sessions Judge. However, the criminal complaint, initiated by the petitioner under Section 326 IPC has not been committed by the Magistrate to the Sessions Court because it is triable by the Magistrate. Therefore, the Magistrate has rightly declined the application of the petitioner for committing the criminal complaint case to the Sessions Court. The Supreme Criminal Misc. No. M- 27852 of 2010 -5- Court has not come to the conclusion that even if the criminal complaint is triable by the Magistrate then it should commit to the Sessions Court under Section 323 Cr.P.C. Direction has been given by the Supreme Court in Kewal Krishan's case (supra) that if counter cases are to be tried by the Sessions Court then these should be tried separately but by the same Court. There is indication in the judgment of Supreme Court that even if both the cases are triable by the Sessions Court, they should be heard together. In the present case, the petitioner cannot take the benefit of Section 323 Cr.P.C. to get both the cases clubbed together and be heard by the Sessions Court. The petition is dismissed with no order as to costs. February 07, 2011 ( RITU BAHRI ) Vijay Asija JUDGE