Madras High Court
R.Sundar vs Kamaraj on 23 June, 2009
Author: G.Rajasuria
Bench: G.Rajasuria
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:23.6.2009 CORAM: THE HONOURABLE MR.JUSTICE G.RAJASURIA Crl.R.C.No.371 of 2006 and M.P.No.1 of 2006 R.Sundar .... Petitioner vs. 1.Kamaraj 2.The Sub-Inspector of Police, Thirunavallur Police Station, Villupuram District ..... Respondents Petition filed under Section 397 r/w 401 of Cr.P.C. against the order dated 29.12.2005 passed the learned Principal Sessions Judge, Villupuram, in Crl.M.P.No.13328 of 2005. For Petitioner : Mr.S.Saravanakumar For Respondents : Mr.Hassan Md.Jinnah,A.P.P. For R2 ORDER
Challenging and impugning the order dated dated 29.12.2005 passed the learned Principal Sessions Judge, Villupuram, in Crl.M.P.No.13328 of 2005.
2. A summation and summarisation of the relevant facts, which are absolutely necessary and germane for the disposal of this criminal revision case would run thus:-
The learned Principle Sessions Judge, Villupuram, transferred the case in C.C.No.119 of 2005 for the offence under Sections 147, 148, 323, 324 and 506(2) IPC to the Court of I Assistant Judge, Villupuram, wherein already S.C.NO.183 of 2005 is pending for the offence under Sections 147, 148, 342, 323, 307 IPC on the ground that the incident referred to in both the cases are interlinked and interwoven, interconnected and entwined with each other. Being aggrieved by and dis-satisfied with the same, this revision is focussed on various grounds, the gist and kernal of them would be to the effect that the case, which was pending before the Magistrate Court was different from the one pending before the I Assistant Sessions Judge and hence, the learned Sessions Judge was not justified in transferring the case from the Magistrate Court.
3. Heard both sides.
4. The point for consideration is as to whether the learned Principle Sessions Judge was wrong in construing that both the cases are connected with each other and that there was justification for ordering both the cases to be tried before the I Assistant Sessions Judge. It is therefore just and necessary to consider in brief the facts involved in both the cases.
5. The case in Crime No.135 of 2001 was registered by Ulundurpet Police on 18.3.2001, at 23.30 hours at the instance of one Kamaraj as against the following accused persons, viz.,(1) Mahendran, S/o.Ramachandran, (2) Rajendran, S/o.Ponnusamy, (3) Sundar, S/o.Rajendran, (4) Madhi, S/o.Raja, (5) Pavadai S/o.Ponnuswamy, (6) Murugan S/o.Ramaswamy, (7) Venkatesan S/o.Ramaswamy, (8) Ilayaraja S/o.Ramaswamy, (9) Saravanan S/o.Arumugam, (10) Sababathi S/o.Pavadaii (11) Venkatesan S/o.Masilamani (12) Ramalingam S/o.Pavadai, for the offence under Sections 147, 148, 323, 324 and 506(ii) IPC. Pithily and precisely, the facts found narrated therein would be to the effect that on 18.3.2001 at about 7.00 p.m,. the accused persons constituted an unlawful assembly at Vandipalayam, Ulundurpet Taluq, Villupuram District and attacked Kamaraj, Ramesh, Varadharajan Prakash, Rajeswari, Prabu and Periyanayagi.
6. Whereas, the very same Police registered a case in Crime No.136 of 2001 at the instance of one Sundar, accused No.3 in the aforesaid FIR, as against the following persons Raj, S/o.Ramachandran, (2) Ramesh, S/o.Ramachandran, (3) Prabu, S/O.Ramachandran, (4) Ilayaraja S/O.Ramachandran, (5) Prakash S/o.Varadharaj (6) Ashok Kumar S/o.Pandurangan, (7) Periyanayaki W/O.Ramachandran, (8) Varadharaj S/o.Swaminathan (9) Ramachandran S/o.Dhanapal for the offence under Sections 147, 148, 342, 324 and 307 IPC on the ground that on 18.3.2001 at about 18.30 hours as though the accused constituted an unlawful assembly and attacked the complainant and others.
7. The police investigated both the cases and laid the police report. Since the case in Crime No.136 of 2001 is relating to the offence under Section 307 IPC also, the case was committed to the Court of Sessions, whereupon, the learned Sessions Principle Judge made over the case to be tried before the I Assistant Sessions Judge, however, the case in Crime No.135 of 2001 was not liable to be tried by the Court of Sessions, as in that case no offence triable by the Sessions Court was found specified; and wherefore that case was pending before the Judicial Magistrate No.II, Ulundurpet.
8. It is ex facie and prima facie, pellucidly and palpably clear that both the cases are having close connection with each other. Of course, the timing alone slightly differs, but the narration of facts would reveal that in one and the same vicinity both took place.
9. The learned Additional Public Prosecutor would correctly portray and narrate that those cases, which are directed to be tried before the I Assistant Sessions Judge, Villupuram, are case and the counter case, however, it is for the Judge to decide at the time of trial, finally.
10. At this juncture, my mind is redolent and reminiscent of the following decision of the Honourable Apex Court:
"Sudhir v. State of M.P.,(2001) 2 SCC 688, at page 693, certain excerpts from it would run thus:
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 Session, 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 Session, 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 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 Session. 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 Session. Commitment under Sections 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.
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 the opinion that none of the offences presumed to have been committed by an accused is triable by a Court of Session 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 Session. 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 Session, 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:
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 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 a 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 to 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. 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."
11. A mere perusal of those decisions would unambiguously and unequivocally make the point clear that even if the case pending before the Magistrate Court is not exclusively triable by the Court of Sessions, nonetheless in the peculiar facts and circumstances these cases, it is just and necessary to transfer the Magistrate Court case also to the Court of Sessions, where the sessions case is pending, so that one and the same Sessions Judge could try at the first instance one case and thereafter another case and pronounce separate judgements on one and the same day separately, dealing with the evidence placed in each of the cases, separately. As such, I could see no merit in the revision and accordingly, the same is dismissed.
Msk To The Principal Sessions Judge, Villupuram