Sudhir
& Ors Vs. VS [2001] Insc 56 (2 February 2001)
K.T.
Thomas & R.P. Sethi. Thomas, J
Appeal (crl.) 136 of 2001
L.T.J
Leave
granted.
A grey
area is sought to be replenished with a judicial pronouncement. A case and
counter case, both were committed to the Court of Sessions as both cases
involve offences triable exclusively by Sessions Court. But after hearing the
preliminary arguments the Sessions Judge felt that in one case no offence triable
exclusively by a Court of Sessions is involved, whereas in the other case a
charge for offences including one triable exclusively by the Sessions Court
could be framed. Is it necessary, in such a situation, that the Sessions Court
should transfer the former case to the Chief Judicial Magistrate for trial as
envisaged in Section 228(1) of the Code of Criminal Procedure (for short the
Code). This is the core issue which has come up to the fore in these appeals.
For
understanding the question better it is necessary to have a short resume of the
facts.
An
encounter took place on the night of 18.2.1996, at a particular place near Bhitar
Bazar, Sagar, Madhya Pradesh, in which firearms and other weapons were used and
persons were injured. The details of the incident are not relevant and hence
skipped. Two rival versions reached the police station regarding the above
incident and two First Information Reports were registered upon those rival
versions by the officer-in-charge of the police station.
FIR
No.92 of 1996 was registered against 24 persons arrayed in it as accused (for
convenience this can be referred to as the first case) and FIR No.93 of 1996
was registered against six persons (this can be referred to as the second case
for convenience). Both cases were investigated together by the police and
ultimately challans were laid in both cases alleging offences under Section 307
read with Section 149 besides some other offences of the Indian Penal Code in
both the cases. The Magistrate before whom the challans were filed completed
the inquiry proceedings and committed both cases to the Sessions Court for
trial. Thus far the two cases flocked together side by side.
In the
Sessions Court the first case was taken up under Section 227 of the Code and
the court framed charge against the accused for offences under Section 307 read
with Sections 149, 147 and 427 IPC. When the preliminary arguments in the
second case were heard under Section 227 of the Code the Sessions Judge found
that no offence triable exclusively by a Court of Sessions need be included in
the charge and hence he framed a charge as envisaged in Section 228(1)(a) of
the Code for the offence under Section 324 read with Section 149 and certain
other counts of the Indian Penal Code. Thereafter he transferred the second
case for trial to the Chief Judicial Magistrate as provided in Section 228(1)
of the Code.
The
accused in the first case moved the High Court in revision contending that no
offence under Section 307 IPC is made out against them and further contended
that the court should have included the offence under Section 307 IPC also in
the charge framed in the second case. A Single Judge of the High Court
dismissed the revision petition by order dated 30.6.2000, in which the learned
Judge observed, inter alia, thus:
The
charge in each criminal case is framed on the basis of materials available in
the records of that particular case. Merely because the charge for offence
under section 307 IPC has not been framed in the counter case, the petitioners
do not become entitled to be discharged for the offence under section 307 IPC,
if they are otherwise liable to be charged for the offence under that section
in view of the materials placed before the learned Judge.
In the
meanwhile, the State of Madhya
Pradesh moved the
High Court in revision challenging the order by which the Sessions Court
declined to frame charge under Section 307 IPC as against the accused in the
second case. The said revision petition was separately dealt with by the High
Court and the same learned Single Judge dismissed the said revision on the same
day by a separate order. He made the following reasoning:
The
facts in the counter case warranted the framing of charge under section 307 IPC
against the complainant and his companions and simply because a charge under
section 307 IPC has been framed against the complainant and his companions,
they cannot claim, on ground of parity, that such charge should also be framed
against the respondents, especially when the materials placed in the present
case do not warrant framing of charge under section 307 IPC against the
respondents. It is the settled law that charge is to be framed on the basis of
material available in that particular case and the Judge or Magistrate should
not be influenced by any other consideration. Under the circumstances, the
impugned order needs no interference by this Court on the ground of parity as
contended by the learned counsel for the petitioner and the complainant.
The
above two orders passed by the High Court are being challenged now in separate
appeals by special leave, and both these appeals were heard together and they
can be disposed of together by a common judgment now.
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.
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 vs. Emperor - AIR 1930 Madras 190). 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.
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 summarised thus:
(I) 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; and
(3) In
reality the case and the counter case are, to all intents and purposes,
different or conflicting versions of one incident.
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 & ors. vs.
State of U.P. & anr. {1990 (Supp) SCC 145}.
The procedure to be followed in such a situation has been succinctly delineated
in the said decision and it can be extracted here:
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 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.
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.
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 Sessions. 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 Sessions.
Commitment
under Section 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.
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 opinion that none of the offences presumed to have been
committed by an accused is triable by a Court of Sessions he is to transfer the
case for trial to the Chief Judicial Magistrate.
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 Sessions. 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 Indian Penal code and when a case involving offence not
exclusively triable by such court is committed to the Court of Sessions, the
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:
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.
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 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
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.
In the
present case, the Sessions Judge ought not 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 (supra). 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.
Resultantly,
we allow the appeal arising out of S.L.P.(Crl) No.4007 of 2000, and set aside
the order of the High Court as well as the order passed by the Sessions Court
by which the case was transferred to the Chief Judicial Magistrate. We direct
the Sessions Court concerned to try and dispose of the first case and the
second case in the manner set out in Nathi Lals case (supra). In view of the
above direction, the impugned order in the appeal arising out of S.L.P. (Crl.)
No.3840 of 2000, will remain undisturbed.
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