DAYA NAND CHANDELA Vs. STATE

JUDGEMENT

(1.) Admittedly, two cross cases were registered by the police--one of the complaint of the appellants vide FIR No. 970/2003 of Police Station Tilak Nagar and the other case on the complaint of opposite party, vide FIR No. 969/2003 of the same police station, In view of the decision of the Hon'ble Supreme Court in Nathi Lal and others versus State of U.P. and another, 1990 Supp1 SCC 145] and State of M.P. versus Mishrilal (dead) and others, 2003 1 JCC 590], both the case should have been tried by the same Judge--one after the other. After recording of evidence in one case complete, the learned Judge should have heard arguments in that case and reserved the judgment. Thereafter, he should have proceeded to hear the cross case and after recording of evidence, he should have heard arguments to reserve the judgment in that case. The same Judge should thereafter have disposed of the matter by two separate judgments, uninfluenced by the evidence recorded in the cross case. However, in the present case, the case registered on the FIR lodged by the opposite party, being a Sessions case, was heard and decided by the learned Additional Sessions Judge, whereas the case registered on the complaint made by the appellants being triable by a Magistrate, is still pending trial. In view of the aforesaid decision of the Hon'ble Supreme Court, the case pending before the learned MM, should also have been committed to the Court of Sessions and should have been heard by the same Judge who had tried and heard the Sessions case, in which the appellants have been convicted.

(2.) In Mishrilal , in identical circumstances, the Hon'ble Supreme Court had decided the appeal on merit despite the fact that the case registered on the complaint of the appellant before the Hon'ble Supreme Court was pending before the Judicial Magistrate. On the other hand, in Avtar Singh versus The State (NCT of Delhi) [Crl. Appeal No. 332/1998, decided on 27.7.2009], the appellant before this was convicted whereas the cross case registered on their complaint was still pending. A revision petition had been filed against the summoning order passed in the cross case and was pending before the learned ASJ at that time. This Court, while, setting aside the conviction of the appellants, directed disposal of the revision petition against the order of summoning in the cross case. It was further directed that in case the summoning order is maintained, the learned Sessions Judge will also try the cross case as a complaint case, record evidence of the complainant and his witnesses and if charges are made out, will try the charged persons in accordance with the said complaint. It was further directed that thereafter, the learned ASJ will pronounce separate judgments in both the cases.

(3.) The learned senior counsel for the appellants suggests that in the facts and circumstances of the case, the cross case registered vide FIR No. 970/2003, Police Station Tilak Nagar, State versus Sudesh Chandela, which is now pending in the Court of Shri Davender Nain, learned Metropolitan Magistrate, Tis Hazari Courts, Delhi may be committed by the said Magistrate to the Court of Sessions and thereafter it may be assigned to Shri V.K. Bansal, ASJ, Delhi, who had passed the judgment impugned by way of these appeals. This course of action would serve the ratio of the decisions of the Apex Court in Mishrilal .