Thursday, 29 December 2016

Whether session court can try magistrate triable case if it is counter case to session triable case?

Thus, it has become abundantly clear that by series of 
judicial pronouncement as detailed above,
availed by the Court of Magistrate to co it has conclusively been
held that trial of case and counter-case irrespective of its nature is to
be conducted by the same Court and further, even the cases having
triable by the Court of Magistrate could be fairly tried by the Court of
Sessions in terms of power being entertained by the Court of Sessions
according to Section 26 of the Criminal Procedure Code and for that,
irrespective of nature of evidence, Section 323 of the Cr.P.C. could bemmit the case for that
purpose, which could not be questioned over its proprietary much less
with regard to absence of sufficient materials. That being so, the
learned lower Court rightly committed the case to the Court of
Sessions. Because of the fact that even the Magisterial trial is to be
proceeded with by the Court of Sessions on account thereof, there is
no question of applicability of Section 228(1)(a) of the Cr.P.C.
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.24629 of 2016

Sanjay Kumar, 
V
 The State of Bihar


CORAM:  MR. JUSTICE ADITYA KUMAR TRIVEDI

Date: 19-08-2016
Citation: 2016 CRLJ4540

Cr.Misc. No.24629 of 2016 2
Cr. Misc. No.24629 of 2016 as well as Cr. Misc.
No.25978 of 2016 arose out of from common case bearing
Bhagwanpur P. S. Case No.63 of 2007 and in both the petitions,
petitioner is the same and on account thereof, both the petitions have
been heard together and are being disposed of by common order.
2. In Cr. Misc. No.24629 of 2016, petitioner-accused has
challenged the order dated 19.01.2016 whereby and whereunder the
learned Additional Chief Judicial Magistrate-XII, Vaishali at Hajipur
has committed the case Bhagwanpur P. S. Case No.63 of 2007 to the
Court of Sessions invoking Section 323 of the Cr.P.C. while Cr. Misc.
No.25978 of 2016 has been preferred by the petitioner-accused
against an order dated 11.04.2016 passed by the learned Sessions
Judge, Vaishali at Hajipur in Sessions Trial No.36 of 2016 arising out
of Bhagwanpur P. S. Case No.63 of 2007 whereby and whereunder
prayer made on his behalf under Section 228(1)(a) of the Cr.P.C. has
been rejected.
3. For better appreciation of the dispute brought up under
aforesaid two petitions, the facts of the case is to be taken care of.
(A) For an occurrence alleged to have taken place on
01.07.2007, two cases were instituted as counter to each other bearing
Bhagwanpur P. S. Case No.63 of 2007 under Sections 147, 148, 149,
323, 324, 504, 341, 379, 427 of the I.P.C. as well as Bhagwanpur P. S. Patna High Court Cr.Misc. No.24629 of 2016 3
Case No.64 of 2007 registered under Sections 323, 341, 504, 324,
379, 427, 34 of the I.P.C.
(B) After concluding investigation of Bhagwanpur P. S.
Case No.63 of 2007, police had submitted chargesheet under Sections
323, 324, 341, 427, 504, 149 of the I.P.C. whereunder cognizance was
taken and accordingly, it was transferred to the Court of Magistrate
for trial. At the other end, after concluding investigation, chargesheet
was submitted under Section 341, 323, 324, 326, 307, 427, 504, 34 of
the I.P.C. relating to Bhagwanpur P. S. Case No.64 of 2007
whereunder cognizance was also taken and accordingly, after
conducting commitment inquiry, the case was committed to the Court
of Sessions where it is going on.
(C) During course of sailing of Bhagwanpur P. S. Case
No.63 of 2007 before the Magistrate, a petition was filed on behalf of
prosecution that both the cases should be tried together and on
account thereof, Bhagwanpur P. S. Case No.63 of 2007 be committed
to the Court of Sessions, which was dismissed as withdrawn.
However, the prayer was reagitated and the same was rejected vide
order dated 28.01.2011 and during course thereof, liberty was given to
the prosecution to reagitate in case materials are placed before the
Court justifying applicability of Section 323 Cr.P.C. While the trial
was going on during course thereof, two witnesses were examined.Patna High Court Cr.Misc. No.24629 of 2016 4
During midst thereof, Cr. Revision No.56 of 2011 was filed before the
learned Sessions Judge against the order dated 28.01.2011, which was
dismissed as withdrawn vide order dated 25.04.2011.
(D) Later on, Cr. Misc. No.32 of 2011 was filed
purported to be under Section 408 Cr.P.C. and vide order dated
16.05.2011, the learned Sessions Judge, Vaishali at Hajipur allowed
the same vide order dated 04.06.2011 directing transfer of
Bhagwanpur P. S. Case No.63 of 2007 from the Court of Magistrate
to the Court of learned Additional Sessions Judge, Fast Track Court-1,
Vaishali at Hajipur where Bhagwanpur P. S. Case No.64 of 2007 was
pending. Subsequently thereof, the order dated 04.06.2011 passed by
the learned Sessions Judge, Vaishali at Hajipur in Cr. Misc. No.32 of
2011 was challenged before the High Court under Cr. Misc. No.22819
of 2011 and the same was allowed vide order dated 07.04.2014 setting
aside the same. Accordingly, record of Bhagwanpur P. S. Case No.63
of 2007 returned back to the Court of Magistrate, but till then,
witnesses were examined before the Court of Sessions. Thereafter, a
petition under Section 323 of the Cr.P.C. was filed before the learned
Magistrate and the same was allowed by the order impugned. The
aforesaid order happens to be subject matter of Cr. Misc. No.24629 of
2016.
(E) After commitment, the record of Bhagwanpur P. S. Patna High Court Cr.Misc. No.24629 of 2016 5
Case No.63 of 2007 came up before the Court of Sessions wherefrom
it was transferred to the concerned Court where Bhagwanpur P. S.
Case No.64 of 2007 was pending and at the time of charge, a petition
under Section 228(1)(a) of the Cr.P.C. was filed which has been
rejected by the Court concerned vide order dated 11.04.2016, which
happens to be the subject matter of Cr. Misc. No.25978 of 2016.
4. Learned counsel for the petitioner while assailing the
respective orders has submitted that learned lower Court had adopted
wrong procedure on account thereof, both the orders are fit to be set
aside.
5. To substantiate such plea, it has been submitted that at
first round of litigation, while the Bhagwanpur P. S. Case No.63 of
2007 was committed to the Court of Sessions, and before the order of
the learned Sessions Judge passed in Cr. Misc. No.32 of 2011 was set
aside, during midst thereof, so many witnesses were examined before
the Sessions Court and then thereafter, as the matter reverted back to
the Court of Magistrate after having the order of the learned Sessions
Judge set aside under Cr. Misc. No.22819 of 2011, then in that event,
the evidence of the witnesses who were examined before the Court of
Sessions would not have been considered during course of
appreciation of prayer made under Section 323 of the Cr.P.C. as those
evidences could not be taken into consideration by the Magistrate. On Patna High Court Cr.Misc. No.24629 of 2016 6
account thereof, applicability of committal of the case in terms of
Section 323 Cr.P.C. happens to be bad.
6. It has also been submitted that when case has been
committed at 2nd round of litigation, the petitioner prayed for that as
no case is made out to be exclusively triable by the Court of Sessions,
hence, the same should be remitted back in terms of Section 228(1)(a)
of the Cr.P.C. which has been rejected by the learned Sessions Court
illegally. To substantiate such plea, it has been submitted that there
happens to be no material available in the case diary to substantiate
the trial of the case by the Court of Sessions. That being so, rejection
of the prayer made by the petitioner happens to be perverse as well as
non-application of judicial mind and on account thereof, both the
orders are fit to be set aside.
7. The learned Additional Public Prosecutor opposed the
prayer and submitted that the successive orders are in accordance with
law and so, both the petitions are fit to be dismissed.
8. How the trial of case and counter-case should be
proceeded with is not at all prescribed under the Criminal Procedure
Code. That means to say, the legislature had not perceived legal
necessity on that very score, whereupon no such provisions has been
made. However, Courts have considered that for proper adjudication
as well as for uniformity in the judgment, the case and counter-case Patna High Court Cr.Misc. No.24629 of 2016 7
should be tried by the same Court irrespective of the fact that both the
cases are triable by two different Courts. During course of
consideration, the Courts have also taken note of Section 26 of the
Criminal Procedure Code whereunder the High Court or the Court of
Sessions or any other Court by which such offence is shown under
first Schedule to be competent enough to try any offence under the
Indian Penal Code. For better appreciation, Section 26 of the Cr.P.C.
is quoted below:-
“26. Courts by which offences are triable.
Subject to the other provisions of this Code,-
(a) any offence under the Indian Penal Code
(45 of 1860 ), may be tried by-
(i) the High Court, or
(ii) the Court of Session, or
(iii) any other Court by which such offence is
shown in the First Schedule to be triable;
(b) any offence under any other law shall, when
any Court is mentioned in this behalf in such
law, be tried by such Court and when no Court
is so mentioned, may be tried by-
(i) the High Court, or
(ii) any other Court by which such offence is
shown in the First Schedule to be triable.”
9. At the present juncture, Sections 209 as well as 323 of
the Cr.P.C. are to be taken note of which commands the event of
commitment. Section 209 is applicable where the offences on its face
speak it trial to be conducted by the Court of Sessions in the
background of order of cognizance while Section 323 of the Cr.P.C. Patna High Court Cr.Misc. No.24629 of 2016 8
deals with the event whereunder subsequently, during course of trial,
the material so brought up during trial justify trial by the Court of
Sessions. Furthermore, Section 193 of the Cr.P.C. speaks with regard
to power of the Sessions Court over taking of cognizance with regard
to the cases having committed to the Court of Sessions. Under the
backdrop of aforesaid legal provisions now one should see the
relevant judicial pronouncement on that very score.
10. In Nathi Lal and others v. State of U.P. and another
reported in 1990 (Supp) SCC 145, the matter was taken
intoconsideration and the same has been answered in affirmative and
for better appreciation the relevant Para is quoted below:-
“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 case 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 is that
case. The same learned Judge must thereafter
dispose of the matters by two separate
judgments. In deciding each of the case, he can Patna High Court Cr.Misc. No.24629 of 2016 9
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 the 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.”
11. In Kulwant Singh v. Amarjit Singh and two others
with Kulwant Singh v. Jitender Singh and Nine others reported in
(2000)3 SCC 290, it has been observed:-
“10. We are quite amazed as to why the two
appeals, which arose out of the same incident
and in fact resulted in cross-sessions cases,
could not have been heard
together…………………………………….”
12. In Sudhir and others v. State of M. P. with State of
M. P. v. Lavkush and others reported in (2001) 2 SCC 688, it has
been held:-
“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 Patna High Court Cr.Misc. No.24629 of 2016 10
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."
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 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 Patna High Court Cr.Misc. No.24629 of 2016 11
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
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.
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 & 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 Patna High Court Cr.Misc. No.24629 of 2016 12
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 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." Patna High Court Cr.Misc. No.24629 of 2016 13
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 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:
"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 Patna High Court Cr.Misc. No.24629 of 2016 14
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 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 Patna High Court Cr.Misc. No.24629 of 2016 15
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 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.
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 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 Patna High Court Cr.Misc. No.24629 of 2016 16
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 subsection
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."
(emphasis supplied)
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 not triable exclusively
by the Sessions Court it is not mandatory that Patna High Court Cr.Misc. No.24629 of 2016 17
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.
17. 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.”
13. In State of M. P. v. Mishrilal (Dead) and others
reported in (2003) 9 SCC 426, it has been held:-
CROSS CASES BE TRIED TOGETHER
“7. Undisputedly, accused Mishrilal lodged the Patna High Court Cr.Misc. No.24629 of 2016 18
report to the police vide Ex.D-8 over the same
incident happened on 5.3.1987, in which he
had clearly stated the injuries were sustained
by him and his son Madhusudan at the hands of
prosecution party. It is also not disputed that
on the strength of the complaint lodged by
Mishriulal, investigation was also carried out
and challan was filed namely crime case
no.52/87 under Sections 147, 148, 149 and 324
IPC against the prosecution party which is
pending for disposal before the learned
Judicial Magistrate First Class. In the said
challan, the prosecution party is stated to be an
aggressor. This Court in Nathilal Vs. State of
U.P. 1990 (Supp.) SCC 145, pointed out the
procedure to be followed by the Trial Court in
the event of cross cases. It was observed thus:-
(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 Patna High Court Cr.Misc. No.24629 of 2016 19
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."
8. In the instant case, it is undisputed, that the
investigating officer submitted the challan on
the basis of the complaint lodged by the
accused Mishrilal in respect of the same
incident. It would have been just fair and
proper to decide both the cases together by the
same court in view of the guidelines devised by
this Court in Nathilal's case (supra). The cross-Patna High Court Cr.Misc. No.24629 of 2016 20
cases should be tried together by the same
court irrespective of the nature of the offence
involved. The rational behind this is to avoid
the conflicting judgments over the same
incident because if cross cases are allowed to
be tried by two courts separately there is
likelihood of conflicting judgments. In the
instant case, the investigating officer submitted
the challan against both the parties. Both the
complaints cannot be said to be right. Either of
them must be false. In such a situation, legal
obligation is cast upon the investigating officer
to make an endeavour to find out the truth and
to cull out the truth from the falsehood.
Unfortunately, the investigating officer has
failed to discharge the obligation, resulting in
grave miscarriage of justice.”
14. In Motak Yadav @ Awadh Bihari Yadav & others v.
State of Bihar & others reported in 2015(1) P.L.J.R. 761, it has been
held:-
“48. While considering the fact that PWs 3 and
4 were accused in Sessions Trial No. 36 of
1998 and they stand convicted, it is imperative
to note that though the Code of Criminal
Procedure does not lay down any specific Patna High Court Cr.Misc. No.24629 of 2016 21
procedure regarding trial of counter cases, it is
the practice adopted, in the interest of justice,
by the Courts that if a case is committed to the
Court of Session, the Counter Case, arising out
of the same incident, should also be, ordinarily,
committed to the same Court of Session even if
the latter is not exclusively triable by a Court of
Session. We have cautiously used the word
ordinarily, for, in an appropriate case, the
Magistrate, instead of committing the case to a
Court of Session, may have to discharge an
accused in terms of Section 245 of the Code of
Criminal Procedure, particularly, when the
case is not exclusively triable by the Court of
Session. Undoubtedly, however, the case and
the counter case should be tried by the same
Presiding Officer in quick succession. The first
case should be tried to a conclusion, but the
judgment should be reserved till the second
case is concluded and, thereafter, the judgment
of the two cases should be pronounced
separately. (See Girijananda Bhattacharyya v.
State of Assam, reported in MANU/GH/
0022/1977 (Gauhati).”
15. Thus, it has become abundantly clear that by series of 
judicial pronouncement as detailed above, it has conclusively been
held that trial of case and counter-case irrespective of its nature is to
be conducted by the same Court and further, even the cases having
triable by the Court of Magistrate could be fairly tried by the Court of
Sessions in terms of power being entertained by the Court of Sessions
according to Section 26 of the Criminal Procedure Code and for that,
irrespective of nature of evidence, Section 323 of the Cr.P.C. could be
availed by the Court of Magistrate to commit the case for that
purpose, which could not be questioned over its proprietary much less
with regard to absence of sufficient materials. That being so, the
learned lower Court rightly committed the case to the Court of
Sessions. Because of the fact that even the Magisterial trial is to be
proceeded with by the Court of Sessions on account thereof, there is
no question of applicability of Section 228(1)(a) of the Cr.P.C.
16. Consequent thereupon, both the petitions sans merit
and are accordingly, dismissed.
Vikash/-
 (Aditya Kumar Trivedi, J)
AFR/NAFR A.F.R.
CAV DATE 09.08.2016

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