1 HIGH COURT OF JUDICATURE AT JABALPUR (M.P.) Misc. Criminal Case No. 4798/2010 SINGLE BENCH PRESENT : HON'BLE SHRI JUSTICE G.S. Solanki Brijpal Singh Versus Pramod Kumar & another ************* Shri Umesh Shrivastava, counsel for the petitioner. Shri A.K. Chaurasia, GA for the State. None for the respondent No.1. Date of Hearing: 16.12.2011 Date of Order : 16.12.2011 O R D E R The petitioner has filed this petition, invoking extra ordinary jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, being aggrieved by order dated 4.2.2010 passed in criminal revision No. 11/2009 whereby order dated 30/7/2008 passed by learned Judicial Magistrate First Class, Beohari in criminal case No. 604/2004 (State of Madhya Pradesh Vs. Pramod Kumar) for withdrawing the prosecution under Section 321 of Cr.P.C. was affirmed, prays for quashment of orders passed by the Courts below. 2. The facts, in short, giving rise to this petition are that on 21.9.2004 there was quarrel between petitioner and respondent No. 1, a report was lodged by one Ram Kumar Patel, friend of the petitioner. On the basis of that first information report, a criminal case was registered against respondent No.1 Pramod Kumar under Sections 294, 323, 506-B/34 of IPC. 2 Respondent No.1 also lodged a report against the petitioner for the same incident on 21.9.2004 and criminal case was registered against the petitioner under Sections 342, 294, 323, 506-B/34 of IPC and after investigation, petitioner was charge sheeted for the offence under Sections 147, 148, 149, 294, 323, 324, 342/34 & 325 of IPC and respondent No.1 was charge sheeted for the offence under Sections 294, 323 & 506-B/34 of IPC and trial was pending as criminal case No. 604/2004 (State of Madhya Pradesh Vs. Pramod Kumar). Since both criminal cases were the counter cases of each other, however, on 30/7/2008, A.D.O.P. (Prosecutor) moved an application under Section 321 of Cr.P.C. and same was allowed by Judicial Magsitrate First Class, Beohari and respondent No.1 was acquitted to the aforesaid charges alleged against him. Being aggrieved, petitioner filed a revision before the Sessions Court and same was dismissed vide order dated 4.2.2010. Hence this petition. 3. Despite service of notice, none appeared on behalf of the respondent No.1. 4. Learned counsel for the petitioner submitted that learned Courts below have failed to consider the fact that both criminal cases were arose out of same incident and was a counter case of each other. He further submitted that no public interest will serve by compelling one of the two parties to face the trial while withdrawal of prosecution of one of the parties. He 3 placed reliance on the judgment of Ramnaresh Tyagi and another Vs. Arjun Mohan Singh and others, 2008(3) M.P.L.J. 96 passed by this Court. 5. Learned counsel for the State justified and supported the impugned orders passed by the Courts below. 6. I have perused the impugned order dated 4.2.2010 passed by the learned Additional Sessions Judge to the Court of Third Additional Sessions Judge (Fast Track Court), Beohari District Shahdol and order dated 30.7.2008 passed by the JMFC, Beohari. 7. It is undisputed on record that criminal case pending against the petitioner as criminal case No. 1259/2004 and criminal case pending against the respondent No. 2 as criminal case No. 604/2004 had arisen out of the same incident took place on 21.9.2004. In these circumstances, both cases were the cross cases. 8. It is well established principle of law that in the trial of cross cases, it is imperative on the part of the trial Court to reach to the conclusion that out of two parties who was the aggressor in the incident and thereafter dispose of the cases on merit. Since, Courts below have failed to consider the aforesaid matter of fact and allowed the application under Section 321 of Cr.P.C. of A.D.O.P. for withdrawal from prosecution. It is also pertinent to note that co-ordinate Bench of this 4 Court in Ramnaresh Tyagi,s case (supra) was of the view that by compelling one of the two parties to face the trial and given benefit to the another party while withdrawing the cases pending against him cannot be said to be in public interest. 9. In these circumstances, I am of the view that if the order passed by the Courts below shall remain continued then it will be amount to harassment to the petitioner and further amount to abuse of process of law. Thus, the present petition is allowed and the order passed by the Courts below in criminal case No. 604/2004 (State of Madhya Pradesh Vs. Pramod Kumar), is hereby set aside. It is directed to the trial Court to restore the criminal case No. 604/2004 to its original number and proceed further in accordance to law. It is further directed to Chief Judicial Magistrate, Beohari if criminal case No. 1259/2004 is not pending in the Court of Additional Chief Judicial Magistrate, Beohari then this case be immediately transferred to the Court of Additional Chief Judicial Magistrate, Beohari for analogous trial of both cross cases in the light of observation made in this order. 10. A copy of this order be sent to the learned Chief Judicial Magistrate, Shahdol and Additional Chief Judicial Magistrate, Beohari for compliance and necessary action. (G.S. Solanki) JUDGE ravi