GOPAL PRASAD Vs. STATE OF BIHAR

JUDGEMENT

(1.) PETITIONER has filed this application for trial of Garkha Police Station Case No. 85 of 1995 (trial No. 1143 of 2002) and Garkha Police Station Case No. 86 of 1995 (Sessions Trial No. 251 of 1999) by one Court.

(2.) THE case of petitioner is that Garkha Police Station Case No. 85 of 1995 was lodged against opposite parties No. 2 to 9 for assaulting brutally the petitioner and his father Binda Prasad who is dead now and in this case, cognizance has been taken under Sections 147, 452, 323, 447 and 379, Indian Penal Code and the case is pending in the Court of Shri Deepak Kumar, Judicial Magistrate, 1st Class, Chapra. The further case of the petitioner is that Garkha Police Station Case No. 86 of 1995 is the counterblast of Garkha Police Station Case No. 85 of 1995 which was lodged by opposite party No. 2 against the petitioner, father of petitioner and Munna Singh for the allegation of assault by dagger and snatching golden chain and wrist watch from the possession of opposite party No. 2 and his son. In this case, cognizance under Sections 307/34 alongwith some other sections of Indian Penal Code has been taken and this case bearing Sessions Trial No. 251 of 1999 is pending for trial in the Court of Vllth Additional Sessions Judge, Saran. The case of petitioner is that both the aforesaid cases are counter to each other and because both cases were pending in different Courts, therefore, he filed a criminal miscellaneous case No. 77 of 2002 in the Court of learned Sessions Judge, Saran at Chapra for transfer of both the cases in one and same Court but his prayer has been rejected and, therefore, he has come to this Court.

(3.) FROM the impugned order, rejecting the prayer of petitioner for transfer of both the cases, referred to above, in one and same Court, l find that the learned Sessions Judge has rejected the prayer after observing that from the description of place of occurrence of both the cases in case diaries, the place of occurrence in both the cases is different and not the same. This is the only ground on which the prayer of petitioner for transferring both the cases in one Court has been rejected. The petitioner has annexed copies of first information reports of Garkha Police Station Case No. 85 (Annexure -1) and Garkha Police Station Case No. 86 (Annexure -2) both of the year, 1999 (sic ''1995?). In Garkha Police Station Case No. 85 of 1999 (sic '' 1995?), Binda Prasad Mahto, who according to petitioner, was his father and is dead now, is the informant and opposite parties No. 2 to 9 are accused persons. In Garkha Police Station Case No. 86 of 1999 (sic ''1995?), opposite party No.2 is informant and besides petitioner, his father Binda Mahto and Munna Singh are named as accused persons. From Annexures -1 and 2, it is clear that parties in both the cases, time and date of occurrence are same. The only difference is that in one case, one party is informant and another is accused and vice versa. In Garkha Police Station Case No. 85 of 1995, the place of occurrence is said to be the house of petitioner whereas in Garkha Police Station Case No. 86 of 1995, place of occurrence is said to be a Pagdandi (village lane) in front of house of Vishnudeo Mahto. It has been submitted on behalf of the petitioner that towards ten to fifteen yards north of the petitioner 'shouse, there is a pitch road and towards south, informant had sown maize crop and adjacent to it there is a house of informant 'sbrother Vishnudeo Mahto. The impugned order shows that from the perusal of the description of a place of occurrence given in case diary of both the cases, it appears that there is a distance of about fifteen yards in both the places of occurrence and, hence, it cannot be said that place of occurrence in both the cases is same. The impugned order further shows that the learned counsel for the opposite parties, opposing the prayer of petitioner, had submitted that place of occurrence of Garkha Police Station Case No. 85 of 1995 is verandah of the house of informant whereas place of occurrence of Garkha Police Station Case No. 86 of 1995 is a Pagdandi situate on the north western corner at a distance of about fifteen yards from the house of informant of Garkha Police Station Case no. 86 of 1995. Considering the difference of about fifteen yards between the places of occurrence, the learned Sessions Judge has rejected the prayer of petitioner for trial of both the cases in one Court ignoring the fact that in both the cases, parties and time of occurrence are same. Besides this, petitioner has not made any prayer for trial of both the cases in a particular Court. His only prayer is that both the cases should be tried by one and same Court. Relying upon a decision of the Apex Court reported in the case of Sudhir and others vs. State of Madhya Pradesh 2001(2) BCCR (SC) 54, the learned counsel for the petitioner has submitted that counter of cross cases should be disposed of by the same Court and judgment should be pronounced on the same day. He has further argued that in the aforesaid case, referred to above, the question was similar that one case was triable by Sessions and the other triable by Magistrate and it was held that in such type of situations, the Magistrate, exercising the powers conferred under Section 323, Code of Criminal Procedure may commit the case to the Court of Session.