Allahabad High Court
Nitin Jaiswal vs State Of U.P. And Another on 29 August, 2017
Author: Naheed Ara Moonis
Bench: Naheed Ara Moonis
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 46 Case :- APPLICATION U/S 482 No. - 22262 of 2017 Applicant :- Nitin Jaiswal Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Anoop Trivedi Counsel for Opposite Party :- G.A.,Sikander B.Kocher Hon'ble Naheed Ara Moonis,J.
Heard Sri Anoop Trivedi, learned counsel for the applicant, Sri Sikander B. Kocher as well as the learned A.G.A. for the State and perused the record.
By means of the instant 482 petition the applicant has invoked the power of this court under Section 482 Cr.P.C. to quash the order dated 13.7.2017 passed by the learned Sessions Judge, Bareilly in Criminal Misc. Transfer Application No. 113 of 2017 (Nirmal Singh Garewal Vs. Nitin Jaiswal and others).
The transfer application moved by the respondent no. 2 along with an affidavit with a prayer to transfer the Case No. 1716 of 2016, under Sections 456, 427 and 143 I.P.C., police station Kotwali, district Bareilly from the court of Additional Chief Judicial Magistrate, Bareilly to the court of First Additional Sessions Judge, Bareilly where S.T. No. 123 of 2013 (State vs. Nirmal Singh and others), under Sections 307 and 452 I.P.C. is pending.
It is submitted by the learned counsel for the applicant that a first information report was lodged by the applicant against the respondent no. 2 Nirmal Singh Garewal and two others, namely, Jasprit Singh Garewal and Taranpreet Singh Garewal under Sections 452, 307 I.P.C on 21.10.2012 at 6.55 A.M. with respect to the incident dated 21.10.2012 at 6 A.M. In respect of the aforesaid offence the accused/respondents are facing trial in pursuance of the aforesaid first information report lodged by Nitin Jaiswal in S.T. No. 123 of 2013. This court by order dated 21.1.2013 directed the trial court to conclude the trial expeditiously on day to day basis preferably within a period of six months. On account of dilatory tactics played by the opposite party no.2 and his sons the trial has yet not been decided besides four years have elapsed despite this court has passed specific orders in several other 482 petitions filed on behalf of the applicants or by the opposite party no. 2. At a very belated stage, the opposite party no.2 moved an application under Section 309 (1) (a) Cr.P.C. on 29.11.2016 contending therein that a cross case is pending before the court of Additional Chief Judicial Magistrate, Court No. 2, Bareilly and hence an appropriate order be passed. The said application was rejected by the learned Additional Sessions Judge, Court No. 1, Bareilly vide order dated 2.12.2016. Jasprit Singh Garewal filed a 482 petition before this Court, which was numbered as 482 Petition No. 38644 of 2016, which was finally disposed of by another Bench of this Court on 15.12.2016. Pursuant to the order dated 15.12.2016 an application was moved by the opposite party no. 2 to pass appropriate order in the light of the observation made in the said order. The transfer application, which was moved by the opposite party no. 2 was only to delay the trial proceeding before the court of Sessions by the opposite party no. 2 and other when there was a specific order of this court for early disposal of the case within a stipulated period but without considering any aspect of the matter the learned Sessions Judge has proceeded to pass the order impugned by which the Additional Chief Judicial Magistrate, Court No. 2, Bareilly has been directed to transmit/transfer the file of Case No. 1716 of 2016 (Nirmal Singh Vs. Nitin Jaiswal) under Sections 456, 427 and 143 I.P.C. forthwith to the court of Additional Sessions Judge, Bareilly. The order passed by the learned Sessions Judge is absolutely without jurisdiction as the learned Sessions Judge is not empowered to transfer the trial, which is cognizable by the court of Magistrate as it is against the provisions of Section 408 Cr.P.C. Section 408 Cr.P.C. do not authorize the District Judge to assign the trial of a case triable exclusively by a court of Magistrate to court of Sessions. The application for transferring the case pending before the Chief Judicial Magistrate to the court of Sessions with regard to an application under Section 309 (1) (a) Cr.P.C. is pending in the court of Chief Judicial Magistrate, Court No. 2 Bareilly hence the application moved under Section 408 Cr.P.C. by the opposite party no. 2 before the District Judge, Bareilly is not maintainable on the ground that an application filed by the opposite party no. 2 under Section 323 Cr.P.C. in case No. 1716 of 2016 in the court of Additional Chief Judicial Magistrate, Court No. 2, Bareilly was rejected by the court concerned by an order dated 19.11.2016. The said order has attained finality and thus the order under challenge passed by the District Judge exercising power under Section 408 Cr.P.C. for transferring the trial of Case No. 1716 of 2016 from the court of Additional Chief Judicial Magistrate, Court No. 2, Bareilly to the court of District & Sessions Judge, Barielly is per se without jurisdiction, arbitrary unreasonable and illegal, which is in gross contravention of the provision of Section 209 Cr.P.C. It is further contended that the sessions court gets jurisdiction to deal with the matter only after the case is instituted upon by police or otherwise is committed by the court of Magistrate. When the power conferred under Section 209 or under Section 323 is exercised only then the provisions of Chapter XVIII would be applicable to such cases. The order passed by the court below is also in contravention of the various orders passed by this court to conclude the trial on day to day basis within two months, which was passed in Criminal Misc. Application No. 20143 of 2015, thus the opposite party no. 2 is somehow trying to elongate the proceeding in which the opposite party no. 2 along with two others are the accused persons and the trial is at the fag end thus by moving the transfer application the opposite party no. 2 has somehow obtained favourable order by the impugned order whereby it has been directed to transfer the case which is pending before the concerned Magistrate to the court of Additional Sessions Judge, Bareilly, which is unsustainable in the eye of law, hence liable to be rejected by this Court.
Learned counsel appearing on behalf of the opposite party no.2 has submitted that in respect of the incident which had taken place on 21.10.2012 the first information report was lodged against the opposite party no. 2 Nirmal Singh Garewal and his two brothers under Sections 452 and 307 I.P.C. as case Crime No. 2568 of 2012 on the same day the opposite party no. 2 also went for lodging the first information report but the same was not lodged by the police, then an application was moved under Section 156 (3) Cr.P.C. on 22.10.2012 pursuant to which a first information report was lodged by the police against the applicant and five others under Sections 307, 452, 427, 504, 506, 380, 436 and 392 I.P.C. as case Crime No. 2675 of 2012. The matter was investigated by the Investigating Officer and a final report was filed on 19.12.2012 and after further investigation the police again submitted the second final report on 16.8.2013. The matter was again sent further investigation and the police reiterated the final report and then the opposite party no.2 filed a protest petition before the court below and the court below proceeded to pass the order on 8.2.2016 rejecting the final report and treated the protest petition as complaint Case No. 1716 of 2016. After the statements of the complainant and witnesses were recorded under Sections 200 and 202 Cr.P.C. the applicant and others were summoned by the learned Magistrate by order dated 5.9.2016 under Sections 143, 456, 427 I.P.C. in complaint Case No. 1716 of 2016. The applicant did not appear before the court despite having full knowledge of summoning order with the sole intention that the case against the opposite party no. 2 may proceed and the cross version of complaint Case No. 1716 of 2016 may remain kept pending. Pursuant to the order of this court it was directed to proceed with the case on day to day basis and trial be concluded if possible within two months. Since the applicant and others had already been summoned in complaint case the application under Section 323 Cr.P.C. was filed before the Additional Chief Judicial Magistrate for committing the case to the court of sessions where S.T. No. 123 of 2013 is proceeding so that both the cases be heard and decided in accordance with law. It is settled law as held by the Hon'ble Apex Court in number of cases that counter or cross cases should be decided by the same court hence the learned Sessions Judge after considering that the date of incident in both the cases is the same, which took place between both the parties on the same date passed the order impugned that both the cases have to be tried by the same court. The learned District Judge has committed no error in allowing the application moved by the opposite party no. 2 exercising power under Section 408 (2) Cr.P.C. directing the Additional Chief Judicial Magistrate, Court No. 2, Bareilly to transmit the record of Case No. 1716 of 2016 (Nirmal Singh Garewal Vs. Nitin Jaiswal) under Sections 456, 427 and 143 I.P.C to the court of Ist Additional District & Sessions Judge, Bareilly. By challenging the order passed by the learned District Judge the applicant himself is trying to elongate the proceeding when the order passed by the learned Sessions Judge was well within its jurisdiction. The cases cited by the learned counsel for the applicant is not applicable in the present facts and circumstances of the case. There is no infirmity in the order passed by the court below, hence the petition may be dismissed with special costs as fraud and perjury has been committed by the applicant while filing the instant application for which an application has already been moved under Section 340 and 195 Cr.P.C. for initiating proceedings to take cognizance for the fraud played by the applicant upon the court of law which should not be ignored.
I have considered the submissions of the learned counsel for the parties. From the perusal of the record it is not disputed that both the sides have lodged cases against each other in respect of the incident of the same date. The first information report, which was lodged by the applicant the trial has been proceeded against the opposite party no. 2 and other persons. The first information report in respect of the incident of the same date could not be lodged on behalf of the opposite party no. 2 against the applicant and others and on account of repeated submissions of final report the protest petition was filed by the opposite party no. 2 and on the basis of the statement of the complainant and witnesses under Sections 200 and 202 Cr.P.C the learned Magistrate treating the protest petition as a complaint proceeded to pass order summoning the applicant and other persons to face trial. It is an admitted fact that there is cross case which should be heard and decided by the same court. In view of the law laid down by the Hon'ble Apex Court in Nathi Lal and others reported in 1990 SCC Criminal 638 that the counter cases should be tried in quick succession by the same judge by the same court who should not pronounce the judgment till the hearing of both the cases is finished. After recording of evidence in one case is completed the trial judge must hear the argument and reserve the judgment and thereafter he must proceed to hear the cross case and after recording of the evidence he must hear the argument and reserve the judgment and thereafter dispose of the matter by two separate judgments. In other words 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. In Sudhir and others Vs. State of M.P. reported in A.I.R. 2001 SC 826 while relying upon the aforesaid decision in (Natthi Lal) supra the Hon'ble Apex Court has exhaustively dealt with the case and counter case relating to the same incident and even one of those cases involves offence not exclusively triable by Sessions Court, could be tried in the manner indicated in Natthi Lal's case. The practical reason in adopting the procedure that such cross cases shall be tried by the same court has been summarized thus;
(i) It staves off the danger of an accused being convicted before his whole case is before the court;
(ii) It deters conflicting judgments being delivered upon similar facts; and
(iii) In reality the case and the counter case are to all intents and purposes different or conflicting versions of one incident.
The Hon'ble Apex Court has further observed that from the aforesaid decisions it is crystal clear that in a situation where one of the two cases relating to the same incident is charge sheeted, involves offence or offences exclusively triable by a court of Sessions, but none of the offences involved in other case is exclusively triable by the court of Sessions, 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 court of Sessions court, thereafter it is governed by the provisions subsumed in Chapter XVIII of the Code. Though the cross 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. The Sessions Judge has to exercise discretion regarding the cases, which he has to continue for trial in his court and the case, which has to be summoned from the court of Chief Judicial Magistrate.
When earlier 482 petition was filed by the respondents there was clear observations that there are two cross cases for which the direction was given for re-consideration of the matter. The present impugned order has been passed, which has been challenged by means of the instant petition under Section 482 Cr.P.C. The learned Sessions judge is fully empowered to withdraw any case at any time before the trial of the case from one court to another court in his session division. The trial in both the cases must be decided by the same judge one after the other. This court does not find any illegality or perversity in the impugned order which was passed against the applicant and six others but the applicant alone has challenged the order on flimsy ground installing the entire proceeding which is pending against the applicant and others as complaint case.
In view of the above prolix and verbose discussion, the petition lacks any merit and is accordingly dismissed.
The learned court below is directed to proceed with the police case and the cross case instituted by the complainant by way of complaint and decide the trial in both the matter in the light of the direction given herein above. It is further directed that the learned court blow will accord priority to the cross case and dispose of both the cases expeditiously.
Order Date :- 29.8.2017 Shahnawaz