MAMRAJ SINGH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS revision petition is directed against the order dated April 16, 1985, passed by the Sessions Judge, Tonk. It involves an important question of law whether the two cross cases arising out of the same incident can be tried by the same Sessions Judge, though one of them is not triable by him ?

(2.) STATEMENT of one Om Prakash was recorded on July 31, 1978 at 11. 45 AM. in the hospital Niwai and the same was later on registered as FIR No. 103/83. In his 'parcha bayan' the said Om Prakash stated that on July 31, 1978 at about 7. 30 AM he and his younger brother Kailash were constructing the boundary wall of somebody. Mamraj Singh and Kalyan Singh came there and asked them not to do so, and caught hold of Kailash, his younger brother and Mamraj Singh gave lathi blow to Kailash. He (Om Prakash) intervened and Mamraj Singh gave lathi blow to him also. He along with Kailash entered the house and thereafter Mamraj Singh, Kalyan Singh, Pep Singh, Devi Singh, Guman Singh, Chhatar Singh and others armed with lathis entered the said house. They gave blows and started beating them. Kailash received injuries. On raising the alarm, Kalu Singh, Balu Singh, Ummadi Singh came there and intervened into the matter. Kailash became unconscious. It appears that a case was registered under section 307, 147, 307/149 IPC and other section of the Indian Penal Code. Kailash Singh later on died in the hospital and inquest report was prepared and an offence under section 302 IPC was added. After investigation a charge-sheet No. 55/1985 was filed against the accused petitioner in the court of Magistrate The learned Magistrate committed them to the court of Sessions Judge, Tonk.

(3.) THERE is no provision in the Code of Criminal Procedure providing that cross cases arising out of the same incident should be tried by the same Judge. Under section 193 Cr. P. C except as otherwise expressly provided by the Code of Criminal Procedure or by any other law for the time being inforce, no Court of Sessions shall take cognizance of any offence as a court of original jurisdiction unless the case has been committed to it by a Magistrate under the Code of Criminal Procedure. THEREfore, generally a court of Sessions shall take cognizance of an offence only if the case is committed to it by the Magistrate under the Code of Criminal Procedure. THERE are exceptions to this rule and they are contained in section 199 (2) Cr. P. C. in case of defamation of President. Vice President and Governor etc. A case under section 302 IPC is triable exclusively by the court of Sessions on committal the Sessions Judge took cognizance of the offence. But the case arising out of FIR No. 104/83 PS Niwai was under secs. 323, 149, 147 IPC which is exclusively triable by the Magistrate of the First Class. Such a case therefore, generally could not be committed to the court of Sessions but if the FIR No. 104/83 is a cross case of FIR 103/83, as appears to be the case in hand from the facts recorded earlier, then under sec. 323 Cr. P. C. the learned Magistrate should have committed the case also to the court of Sessions so that both the cases which are cross cases are arising out of same event could be tried by the learned Sessions Judge, though separately. The question whether the cross cases should be tried by the same Judge came up for consideration before this Court in Mangu vs. State (1 ). THERE were two cross cases, one under sec. 302 and the other under sec. 307 of the Indian Penal Code and both had been committed to the court of Sessions. The learned Judge, who tried both the cases, it appears, had taken some evidence of the cross - case into consideration in convicting the accused in the murder case. The learned Sessions Judge also gave single judgment in both the cases. It was observed that - "the correct procedure in the trial cross-cases should be that both the cases should be tried separately although by the same Judge and separate record should be prepared for each case. The judgments should be separately given and they should be based on the evidence on the record of that case along. " A reference in that case was made to the case of Banappa Kallappa Ajawan vs. Emperor (2) wherein a view has been taken that the most desirable procedure in such cases (cross-cases) would be that both the cases should be tried by the same Judge, though with different assessors or juries. The first case should be tried to a conclusion and the verdict of jury or the opinion of the assessors taken. But the Judge should postpone judgment in that case till he has heard the second case to a conclusion, and he should then pronounce judgments separately in each case. He would of course be bound to confine his judgment in each case to the evidence led in that particular case and would not be at liberty to use the evidence of one case for the purpose of the judgment in the other case and to allow his findings in one case to be influenced in any manner to the prejudice of the accused by the views which he may have formed in the other case. In Mujib Ali vs. Basan Ali (3) a Division Bench of Gauhati High Court considered the question of trial of cross-cases and the procedure to be adopted. It was held that : "we are of the opinion that when there are cross-cases or wherever the parties are prosecuted for attack on each other arising out of the same incident and there are counter-cases with counter versions, trial should be held separately but one after the other, by the same Magistrate who should not pronounce judgments till after both the cases are heard. But it should be noted carefully that the evidence of one case should not be made use of in the other case This practice will undoubtedly help the cause of justice and avoid conflicting decision in two cases. " In taking the aforesaid view reliance was placed on number of decisions of various courts. The same High Court in Girijananda Bhattacharyya vs. The State of Assam (4) took a similar view and in para 12 laid down the reasons for trial of cases and counter cases arising out of the same incident by a Presiding Officer. According to the learned Judge such a trial staves off the danger of an accused being convicted before his whole case is before the court, it deters conflicting judgments being delivered upon similar facts and in reality the case and the counter case are to all intents and purposes different or conflicting versions of one incident. In one case charges were such which were not exclu-sively triable by the court of Sessions whereas in the other charges were under section 302/147 IPC which is exclusively triable by the court of Sessions. On the transfer application under section 407 Cr. P. C. the High Court ordered the transfer of both cases to one court on the ground that cross cases should be tried by the same Judge. In Rajendra Singh vs. The State of MP (5) it was held that even if one set of cases is exclusively triable by the court of Sessions and the other was not. the case which is not triable by the court of Sessions should be transferred to the court of Sessions as to avoid conflicting judgments by the two different courts.