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CASE NO.: Appeal (crl.) 135  of  2001 Appeal (crl.)   136      of  2001

PETITIONER: SUDHIR AND ORS

       Vs.

RESPONDENT: VS.

DATE OF JUDGMENT:       02/02/2001

BENCH: K.T. Thomas & R.P. Sethi.

JUDGMENT:

THOMAS, J.@@ JJJJJJJJJJ L...I...T.......T.......T.......T.......T.......T.......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

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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

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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

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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

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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.