Andhra Pradesh High Court - Amravati
The State Of A.P., Rep. By The P.P. vs Mittapalli Sudhakar Reddy 6 Others on 17 February, 2022
Author: C. Praveen Kumar
Bench: C. Praveen Kumar
IN THE HIGH COURT OF ANDHRA PRADESH:
AT AMARAVATI
***
Criminal Appeal No.1115 of 2014
Between:
The State of A.P. rep. by the Public Prosecutor,
High Court of Andhra Pradesh, Hyderabad.
.... Appellant/Petitioner
And
1) Mittapalli Sudhakar Reddy, S/o. Venkataramana Reddy,
44 years, R/o. Peddamandyam Mandal and 6 others.
....Respondents/Accused
Date of Judgment pronounced on : 17.02.2022.
THE HON'BLE SRI JUSTICE C. PRAVEEN KUMAR
AND
THE HON'BLE DR. JUSTICE K. MANMADHA RAO
1. Whether Reporters of Local newspapers : Yes/No
may be allowed to see the judgments?
2. Whether the copies of judgment may be marked : Yes/No
to Law Reporters/Journals:
3. Whether the Lordship wishes to see the fair copy : Yes/No
of the Judgment?
________________________________
JUSTICE C. PRAVEEN KUMAR
CPK, J & Dr. KMR, J
2 Crl.A.No.1115 of 2014
* THE HON'BLE SRI JUSTICE C. PRAVEEN KUMAR
AND
THE HON'BLE DR. JUSTICE K. MANMADHA RAO
+ Criminal Appeal No.1115 of 2014
% 17.02.2022
# The State of A.P. rep. by the Public Prosecutor,
High Court of Andhra Pradesh, Hyderabad.
.... Appellant/Petitioner
And
$ 1) Mittapalli Sudhakar Reddy, S/o. Venkataramana Reddy,
44 years, R/o. Peddamandyam Mandal and 6 others.
....Respondents/Accused.
! Counsel for the Appellant : Sri. S. Dushyanth Reddy
Addl. Public Prosecutor.
Counsel for the Respondents: Sri P. Veera Reddy,
Learned Senior Counsel.
<Gist :
>Head Note:
? Cases referred:
1) AIR 1944 Bombay 146 DB
2) 1990 SCC (Crl.) 638
3) 1975 AIR (SC) 149
4) 1985 (1) SCC 422
5) AIR 2000 SC 361
6) (2001) 2 SCC 688
7) (2003) 9 SCC 426
8) 2008 (1) ALD (Crl) 830
9) 2011 (5) SCC 324
10) 1979 (1) ALT 189
11) 2011 LawSuit (Kar) 2249
12) AIR 1962 (2) SC 1198
CPK, J & Dr. KMR, J
3 Crl.A.No.1115 of 2014
THE HON'BLE SRI JUSTICE C. PRAVEEN KUMAR
AND
THE HON'BLE DR. JUSTICE K. MANMADHA RAO
CRIMINAL APPEAL NO.1115 OF 2014
JUDGMENT:(Per the Hon‟ble Sri Justice C. Praveen Kumar) The effect of not trying case and counter case or cross case one after the other by the same Court, is the issue involved in this case. In order to appreciate the same, it would be necessary to refer to few facts.
2. Originally, seven accused were tried for the offences punishable under Sections 147, 148, 323, 324, 302, 326, 323 r/w. Section 149, Section 324 r/w. Section 149 I.P.C. and Section 326 r/w. Section 149 I.P.C in Sessions Case No.132 of 2007. By its Judgment dated 16.05.2012 learned VII Additional District and Sessions Judge, Madanapalle acquitted the accused of all charges.
3. The gravamen of the charge against the accused, is that on 16.05.2006 at about 5.00 P.M., in front of the house of A.1 at Mittavandlapalle Village, all the accused formed themselves into an unlawful assembly and in prosecution of the common object of unlawful assembly, caused the death of one M. Reddeppa Reddy by beating him with stones and sticks on his head indiscriminately. In respect of this incident, a case in Crime No.26 of 2006 of Peddamandyam Police Station came to be registered. After completing the investigation, a Charge Sheet came to be filed which was taken on file in CPK, J & Dr. KMR, J 4 Crl.A.No.1115 of 2014 P.R.C.No.02 of 2007 on the file of Judicial Magistrate of First Class, Thamballapalle and then committed to the Court of Sessions which was tried as Sessions Case No.132 of 2007 [present case].
4. On appearance of the accused, copies of the documents, as required under Section 207 Cr.P.C. were supplied to them. As the offences are triable by Court of Sessions, the case was committed to the Court of the Sessions under Section 209 Cr.P.C. Accordingly, the same was made over to the Court of the learned VII Additional District and Sessions Judge, Madanapalle and disposal in accordance with law.
5. Basing on the material available on record, charges, as referred to earlier, came to be framed, read over and explained to the accused in Telugu to which, they pleaded not guilty and claimed to be tried.
6. To substantiate its case, the prosecution examined P.Ws.1 to 30 and got marked Exs.P1 to P31 and M.Os.1 to 12. After the closure of the Prosecution evidence, the accused were examined under Section 313 Cr.P.C., with reference to the incriminating circumstances appearing against them in the evidence of the prosecution witnesses to which they denied. In support of their plea, the accused examined D.W.1 [A.7] and got marked Exs.D1 to D8. Taking into consideration the above aspect coupled with other circumstances, the trial Court acquitted the accused.
CPK, J & Dr. KMR, J 5 Crl.A.No.1115 of 2014 Challenging the same, the State preferred the present Criminal Appeal.
7. Sri P. Veera Reddy, learned Senior Counsel appearing for the respondents/accused mainly submits that the entire prosecution case has to be viewed with suspicion since the genesis of the incident is suppressed. According to him, when the investigating agency is aware about two cases being registered out of a single incident, every effort should have been made by the Investigating Officer to get both the cases tried simultaneously. He further submits that even on merits, the witnesses examined by the prosecution are interested witnesses and no effort was made to examine any independent person though number of villagers were present. He also contends that there are number of contradictions and omissions in the evidence of the witnesses, which goes to the root of the matter. He mainly referred to the evidence of P.W.17, an injured eye witness, who gives a different picture of the incident in question. Taking us through the judgment of the counter case namely that the prosecution has failed to prove, who the aggressors are, he would contend that the manner of acquittal in the said case is sufficient to throw out the present case.
8. On the other hand, Sri S. Dushyanth Reddy, learned Additional Public Prosecutor opposed the same contending that no prejudice would be caused to the accused herein due to failure on the part of the prosecution in not clubbing the CPK, J & Dr. KMR, J 6 Crl.A.No.1115 of 2014 case and counter. According to him, the evidence on record also refers to the injuries sustained by the accused in the counter case and as such, it cannot be said that there was any suppression of the incident. He further submits that since the injuries on the accused are simple in nature, non- explanation of the same is not fatal to the prosecution case. He further submits that when there is a death on the side of the prosecution party, the accused have to be treated as aggressors.
9. The point that arises for consideration is, whether the prosecution was able to bring home the guilt of the accused beyond reasonable doubt?
10. Before proceeding further, it is to be noted here that P.Ws.1, 3, 4 to 6 received injuries while P.Ws.2, 7 to 9 and 15 were examined as eye witnesses to the incident. One fact, which remained uncontroverted, is that none of the material prosecution witnesses speak about the injuries on the accused. Suggestions given to the witnesses with regard to the manner in which P.Ws.1, 2, 4 to 6 and the deceased attacked A.1 to A.3, A.5 and A.7 on 16.05.2006 at 5.00 P.M., were denied by all the witnesses. Suggestions to the witnesses that it was the prosecution party which was the aggressor and a counter case came to be filed by one of the accused was also denied by the witnesses. But, P.Ws.29- Investigating Officer in his cross-examination admits, registration of three crimes i.e., Crime Nos.25 of 2006, 26 of CPK, J & Dr. KMR, J 7 Crl.A.No.1115 of 2014 2006 and 27 of 2006 of Peddamandyam Police Station. He further admits that Crime No.25 of 2006 is a different transaction while Crime No.26 of 2006 and 27 of 2006 are case and counter case arising out of same incident.
11. In so far as Crime No.27 of 2006 is concerned, the Police investigated into the said case and filed a Charge Sheet which was taken on file as C.C.No.79 of 2006 on the file of Judicial Magistrate of First Class, Thamballapalle. The said case ended in acquittal on the ground that the prosecution failed to prove the aggressors. It was in this case that A.7 herein, who was the informant therein, filed an application before the District Court seeking transfer of C.C.No.79 of 2006 to be tried along with S.C.No.132 of 2007. But, the same was not pursued. Apart from the above, P.W.24, the doctor working as Civil Assistant Surgeon, Area Hospital, Madanapalle, in her cross-examination, admits to have treated A.1, A.3, A.5 and A.7 on 16.05.2006 itself and issued Exs.D1, D.2, D.3 and D.5 wound certificates respectively. Apart from the above, one Alivelamma also sustained injuries and the wound certificate issued for the injuries sustained by her, is marked as Ex.D4. A.7 in the present case was examined as D.W.1, who speaks about the injuries sustained by him along with three others and Alivelamma and also the report lodged by him.
CPK, J & Dr. KMR, J 8 Crl.A.No.1115 of 2014
12. This in substance is the evidence on record. In other words, as against the evidence of injured prosecution witnesses and the eye witnesses with regard to the incident on 16.05.2006 at 5.00 P.M, there lies the evidence adduced by the accused to show that the accused also sustained injuries and a report was lodged by A.7, which came to be registered as Crime No.27 of 2006. From the arguments advanced by learned counsel for the appellant it appears that since case and counter were not tried simultaneously, it has to be inferred that the prosecution is not coming forward with the true version of the case, more particularly, having regard to the injuries sustained by the accused.
13. Before dealing with the issues involved, it would be appropriate to define what a case and counter, mean:-
"A case and counter case are criminal offences originating from a single incident, happening at one particular area at a time which can in the opinion of a reasonable man be said to have occurred together or at the same time, irrespective of the offence being prosecuted as a summons case or a warrant case."
14. Admittedly, two crimes referred to above arose out of a same incident. The said fact came to be elicited not only through the evidence of Investigating Officer, but also through the defence evidence. Strangely, no effort was made either by the Investigating Officer or by the learned Sessions Judge before whom the trial in this case was going on, to deal both the cases together one after the other. It has also come on CPK, J & Dr. KMR, J 9 Crl.A.No.1115 of 2014 record that one of the accused made an effort, to get both the cases clubbed, by filing a transfer application before the Sessions Court, which died its natural death, as no effort was made to pursue the same.
15. The question, which arises for consideration is, what would be the effect of not trying case and counter case/case and cross case simultaneously knowing that there is a counter case or cross case?
16. The High Court of Bombay, way back in the year 1943 in Emperor vs. Banappa Kallappa Ajawan1 enunciated the way, in which, the cases of rival factions were to be tried and the evidence to be looked into while dealing the cases, though not simultaneously, but separately. It would be appropriate to extract the relevant portion, which is as under:
"(i) There is of course no objection in law to both the cases being tried by separate Judges with the help of separate juries or assessors, but such a procedure is always open to the risk of the two Courts coming to conflicting findings and occasionally, as in the present case, it may result in very serious injustice, one side or the other being wrongly convicted.
(ii) In our opinion the most desirable procedure in such cases would seem to 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 the 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 1 AIR 1944 Bombay 146 DB CPK, J & Dr. KMR, J 10 Crl.A.No.1115 of 2014 led in that particular case and would not be at liberty to use the evidence in 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. It may be that in some particular cases he might feel some difficulty about trying both cases, and in such a case it would always be open to him to get the second case transferred."
17. In Nathi Lal vs. State of U.P.2, the Hon'ble Supreme Court while dealing with the issue relating to case and cross case observed as under:
"2. We think that the fair procedure to adopt in a matter like the present where there are cross cases, is to direct that the same Learned Judge must try both the cross cases one after the other. After the recording of evidence in one case is completed, he must hear the arguments but he must reserve the judgment. Thereafter he must proceed to hear the cross case and after recording all the evidence he must hear the arguments but reserve the judgment in that case. The same Learned Judge must thereafter dispose of the matters by two separate judgments. In deciding each of the cases, he can rely only on the evidence recorded in that particular case. The evidence recorded in the cross case cannot be looked into. Nor can the judge be influenced by whatever is argued in the cross case. Each 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. But both the judgments must be pronounced by the same Learned Judge one after the other."
18. In Mittulal and another vs. State of Madhya Pradesh3, the Court observed thus:
"It is difficult to comprehend as to how the High Court could decide the appeal before it by taking into account evidence recorded in another case, even though it might be what is loosely called a cross-case. It is elementary that each case 2 1990 SCC (Crl.) 638 3 1975 AIR (SC) 149 CPK, J & Dr. KMR, J 11 Crl.A.No.1115 of 2014 must be decided on the evidence recorded in it and evidence recorded in another case cannot be taken into account in arriving at the decision. Even in civil cases this cannot be done unless the parties are agreed that the evidence in one case may be treated as evidence in the other. Much more so in criminal cases would this be impermissible. It is doubtful whether the evidence recorded in one criminal case can be treated as evidence in the other, even with the consent of the accused. But here there was clearly no consent of the appellants to treat the evidence recorded in the cross-case against Ganpat and Rajdhar as evidence in the case against them. The High Court was, therefore, clearly in error in taking into consideration the evidence recorded in the cross-case against Ganpat and Rajdhar. The High Court ought to have decided the appeal before it only on the basis of the evidence recorded in the present case and ought not to have allowed itself to be influenced by the evidence recorded in the cross-case against Ganpat and Rajdhar. It is regrettable that the High Court should have fallen into such an obvious error."
19. In Harijinder Singh Vs. State of Punjab and others 4, the Hon'ble Supreme Court held as under:
"Para-8: In the facts and circumstances of this particular case we feel that the proper course to adopt is to direct that the two cases should be tried together by the Learned Additional Sessions Judge but not consolidated i.e., the evidence should be recorded separately in both the cases one after the other except to the extent that the witnesses for the prosecution who are common to both the cases be examined in one case and their evidence be read as evidence in the other. The Learned Additional Sessions Judge should after recording the evidence of the prosecution witnesses in one case, withhold his judgment and then proceed to record the evidence of the prosecution in the other case. Thereafter he shall proceed to simultaneously dispose of the cases by two separate judgments taking care that the judgment in one case is not based on the evidence recorded in the other case. In Kewal Krishnan case, this Court had occasion to deal with a situation as the present, where two cases exclusively triable by the Court of Session, one instituted on a Police report under Section 173 of the Code and the other 4 1985 (1) SCC 422 CPK, J & Dr. KMR, J 12 Crl.A.No.1115 of 2014 initiated on a criminal complaint, arose out of the same transaction. The Court observed that to obviate the risk of two courts coming to conflicting findings, it was desirable that the two cases should be tried separately but by the same Court. The High Court was largely influenced in upholding the order of the Learned Additional Sessions Judge by the fundamental right of the accused guaranteed by Article 20(2) of the Constitution and Section 300 of the Code which provides that no person shall be prosecuted and punished for the same offence more than once. If there is no punishment for the offence as a result of the prosecution, sub-clause (2) of Article 20 has no application. The constitutional right guaranteed by Article 20(2) against double jeopardy can still be reserved if the two cases are tried together but not consolidated i.e., the evidence be recorded separately in both cases and they be disposed of simultaneously. Further, the second prosecution must be for the „same offence‟. If the offences are distinct, there is no question of the rule as to double jeopardy being applicable."
20. In Padam Singh vs. State of U.P.5, the Court held that when the prosecution has failed to explain the injuries sustained by the accused at the time of occurrence or in the course of the same transaction, the Court can draw an inference that the prosecution has suppressed the genesis and origin of the occurrence and has, thus, not presented the true version.
21. In Sudhir and others vs. State of M.P. and others,6 the Hon'ble Supreme Court was dealing with a situation where the first case relates to an offence triable by Court of Sessions, whereas the other counter case was triable by a Court of Magistrate. The Chief Judicial Magistrate transferred the case to the Court of Sessions under Section 5 AIR 2000 SC 361 6 (2001) 2 SCC 688 CPK, J & Dr. KMR, J 13 Crl.A.No.1115 of 2014 228(1) Cr.P.C. The Hon'ble Supreme Court held that the Magistrate shall transfer a case to Sessions Judge under Section 323 Cr.P.C. though the second case does not contain any charges which are exclusively triable by Court of Sessions. The Hon'ble Supreme Court pressed the need to conduct simultaneous trial in case and counter.
22. In State of Madhya Pradesh vs. Mishrilal (Dead) and others7, the Hon'ble Supreme Court while dealing with the need for simultaneous trial of case and counter, held that omission to do so will lead to Miscarriage of Justice. It would be appropriate to extract paragraph No.8 of the said judgment, which reads as under:
"8. In the instant case, it is undisputed, that the investigating officer submitted the challan on the basis of the complaint lodged by the accused Mishrilal in respect of the same incident. It would have been just fair and proper to decide both the cases together by the same court in view of the guidelines devised by this Court in Nathilal's case (supra). The cross-cases should be tried together by the same court irrespective of the nature of the offence involved. The rational behind this is to avoid the conflicting judgments over the same incident because if cross cases are allowed to be tried by two courts separately there is likelihood of conflicting judgments. In the instant case, the investigating officer submitted the challan against both the parties. Both the complaints cannot be said to be right. Either of them must be false. In such a situation, legal obligation is cast upon the investigating officer to make an endeavour to find out the truth and to cull out the truth from the falsehood. Unfortunately, the investigating 7 (2003) 9 SCC 426 CPK, J & Dr. KMR, J 14 Crl.A.No.1115 of 2014 officers has failed to discharge the obligation, resulting in grave miscarriage of justice."
23. In Golla Sankaraiah vs. The State of Andhra Pradesh8, a Division Bench of Combined High Court of Andhra Pradesh after referring to the judgments of Supreme Court, held the need to conduct a simultaneous trial in case and counter cases. The Court held as under:
"14. The principle underlying such a requirement is not difficult to discern. It needs to be noted that when a case and a counter case are filed in relation to an incident, same individuals answer the description of victims in one case, and of accused, in another case. Whatever be the permissibility of the same individual playing the role of a plaintiff and defendant in the suits filed in relation to the same subject matter, almost irreconcilable situations emerge when they figure as victims and culprits, in relation to one and the same incident, in two different cases.
15. The necessity to try such cases together is so imminent that any lapse in this regard is likely to give rise to disastrous results. In C.C. No. 271 of 1998, the Court of the Judicial First Class Magistrate, Sullurpet, P.Ws.1, 2 and the deceased herein figured as accused, and A1 herein as the complainant. Specific finding was recorded to the effect that P.W.1 herein is guilty of the offence punishable under Section 324 IPC for inflicting injuries on A1 herein. In relation to the same incident, the Sessions Court proceeded with the trial in S.C. No. 113 of 2000 and recorded exactly the opposite findings. A serious lapse has taken place on the part of the prosecution, if not, the Courts referred to above, in not ensuring that both the cases are tried together. We find ourselves in a precarious condition on the one hand, we cannot ignore the findings recorded in Ex.D4 in this case i.e., judgment in C.C. No. 271 of 1998, and on the other hand, cannot put a seal of approval on the findings recorded by the Court of Sessions in S.C. No. 113 of 2000. Inasmuch as the judgment in C.C. No. 271 of 1998 has become final, there is no way, we can ignore 8 2008(1) ALD (Crl) 830 CPK, J & Dr. KMR, J 15 Crl.A.No.1115 of 2014 the findings therein whereas the findings in S.C. No. 113 of 2000, are at large."
24. In Kuldip Yadav and others vs. State of Bihar 9, the Court after referring to the judgments in Harjinder Singh and Nathi Lal, observed as under:
"4D...... The dictum laid down by the Supreme Court successively in the cases of NATHI LAL (supra), SUDHIR (supra). MITTULAL (supra) and KULDIP YADAV (supra) is being followed by the Courts in India."
25. At this stage, it would be relevant to refer to Section 323 Cr.P.C which deals with procedure, when after commencement of enquiry or trial, Magistrate finds the case to be committed. If, in any enquiry into any offence or a trial before a Magistrate, it appears to him at any stage of the proceedings before signing the judgment that the case is one which ought to be tried by the Court of Sessions, he shall commit it to that Court under the provisions referred to above and thereupon provisions of Chapter-XVIII shall apply to the commitment so made. Therefore, even if one of the cases is triable by a Court of Magistrate, still Section 323 Cr.P.C. permits the said Magistrate to commit the case to the Court of Sessions to be tried along with the counter case.
26. In Kondaiahgari Venkatappa vs. R.A.Nagireddy and others10, the Combined High Court of Andhra Pradesh held that case and counter has to be tried and would be disposed of by one and the same Judge. It was also held that there is 9 2011 (5) SCC 324 10 1979 (1) ALT 189 CPK, J & Dr. KMR, J 16 Crl.A.No.1115 of 2014 no bar to transfer Calendar Case to the Court of Sessions Judge to be tried along with Sessions Case.
27. From the judgments referred to above, it is clear that in case and counter/case and cross case, (a) both the cases should be tried together by the same Court irrespective of nature of offence involved. The rationale behind is to avoid conflicting judgments, which may lead to disastrous results at times. (b) both the cases should be tried simultaneously one after the other. (c) The learned Public Prosecutor in one case shall not act as a Public Prosecutor in the counter case. (d) The evidence in one case cannot be looked into in the counter case. [Hosakeri Ningappa and another], finally, (e) judgments in both the cases shall be pronounced on the same day.
28. The question now is, if both the cases are not tried together and if both the cases end in acquittal, in two different Courts or end in conviction in two different Court or when one case ends in acquittal and other case ends in conviction, what should happen to the case against which an appeal is preferred.
29. It has to be noted here that having regard to the propositions laid down in the judgments referred to above and the conclusions arrived at, even if there is a conviction in both the cases by two different Courts and appeals are pending, no purpose would be served in clubbing both the appeals CPK, J & Dr. KMR, J 17 Crl.A.No.1115 of 2014 together at that point of time. In a case where two cases tried by two different Courts, end in an acquittal and then an appeal is filed by the State against one Judgment, what will be the fate of that appeal. The case on hand is one such case.
30. Identical issue came up for consideration before a Full Bench of the High Court of Karnataka [Dharwad Bench] in State of Karnataka, by Circle Inspector of Police vs. Hosakeri Ningappa and another11. It was also a case where two Sessions Cases which arose out of the same incident, were tried separately though they were case and counter. Both the Sessions Cases ended in an acquittal. It appears that both the cases were tried by the same Sessions Judge. The judgment of acquittal in one Sessions Case i.e., S.C.No.11 of 1995 attained finality while the State preferred appeal against the judgment in S.C.No.1 of 1995 before the High Court. The issue before the said Court was whether the entire trial gets vitiated or whether it is only an irregularity which does not vitiate the entire trial process or the order of acquittal.
31. Taking into consideration the judgments of the Hon'ble apex Court coupled with the provisions of Cr.P.C, the Full Bench of Karnataka High Court answered the reference as under:-
"(a) If the case and counter case are not tried simultaneously as held by the Supreme Court in the case of NATHI LAL vs. STATE OF U.P. (Supra) and in the case of 11 2011 LawSuit (Kar) 2249 CPK, J & Dr. KMR, J 18 Crl.A.No.1115 of 2014 SUDHIR AND OTHER vs. STATE OF M.P. (Supra) the proceedings ipso facto do not get vitiated. But, where the irregular procedure adopted by the Trial Court has caused prejudice to the accused and has occasioned failure of justice, the proceeding and the trial vitiates. Otherwise, the proceedings are protected under Section 465 of the Code.
(b) The evidence recorded in one case cannot be looked into in the other case. The Trial Judge can only rely upon the evidence recorded in that particular case and the evidence recorded in the cross case cannot be looked into. Each case must be decided on the basis of the evidence which has been placed on record in that particular case. However, if the evidence recorded in one case is brought on record in accordance with procedure known to law in the other case, then, such evidence which is legally brought on record can be looked into. Otherwise, the evidence recorded in one case cannot be looked into in the other case.
(c) If the Trial court disposes of the case and counter case on different dates acquitting the accused therein and no appeal is preferred in one of the cases and the appeal is preferred in the case decided later, the proceedings in the later case do not automatically get vitiated. Each case has to be judged on its own merits. Unless prejudice is shown to have been caused to the accused, the proceedings in the later case do not get vitiated."
32. Keeping in view the propositions laid down in the said judgment and having regard to the judgments of the Hon'ble apex Court referred to above, we shall now proceed to deal with the case on hand.
33. From the evidence referred to above, it is very clear that even in the instant case though the prosecution was aware about two crimes being registered out one incident, for reasons best known to them, never made any effort to get both the cases tried simultaneously by the same Court. On CPK, J & Dr. KMR, J 19 Crl.A.No.1115 of 2014 the other hand, it appears from the record that A.7 filed a transfer application before the Sessions Court seeking to transfer the case filed by him against the prosecution party to be tried with the Sessions Case, but strangely no steps were taken for disposal of the said transfer application. That being the factual situation, it is to be seen whether the entire trial gets vitiated. Section 465 Cr.P.C deals with finding or sentence when reversible by reason of error, omission or irregularity. It reads as under:-
"(1) Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered by a Court of appeal, confirmation or revision on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or any error, or irregularity in any sanction for the prosecution, unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby.
(2) In determining whether any error, omission or irregularity in any proceeding under this Code, or any error, or irregularity in any sanction for the prosecution has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings."
34. Though, the procedure to be followed in case and counter is mandatory in nature, but a reading of Section 465 Cr.P.C. would show that non-compliance of the procedure contemplated in Section 465 Cr.P.C. may lead to irregularity. The procedure adopted by trial Court in such matters, does not in any way relates to competency of the Court, but it CPK, J & Dr. KMR, J 20 Crl.A.No.1115 of 2014 relates to adopting an irregular procedure. [Hosakeri Ningappa and another].
35. In Banwari and another vs. State of Uttar Pradesh12, the Hon'ble apex Court was dealing with Section 537 of the Code of Criminal Procedure, 1898, which is identical to Section 465 of the new Code. In paragraphs 20, 28 & 29 of the said judgment, the Court held as under:-
"Para 20: The procedure of recording evidence with respect to the offences which were the subject of different Sessions Trials in the proceedings of one Sessions Trial alone, is not certainly warranted by the provisions of the Code of Criminal Procedure. Every separate Trial must proceed separately, with the result that every proceeding, including the recording of evidence, in each trial should be separate. The question, however, is whether this wrong procedure adopted by the Learned Sessions Judge, has vitiated the trial, irrespective of the fact whether prejudice has been caused to the accused or not.
Para 28: We have already said that the proceedings in each separate trial should be separate and that on that basis the procedure adopted by the Learned Sessions Judge was wrong. The question for determination, then, is whether his following the wrong procedure vitiates the trial and the conviction of the appellants or is curable under Section 537 of the Code."
Para-29: We are of opinion that such a defect does not invalidate the trial in the above case. The Sessions Judge had tried the three Sessions cases jointly arising out of three different charge sheets. The Supreme Court has held that the procedure adopted by the Sessions Judge was wrong. However, while deciding the question as to whether following of wrong procedure vitiates the trial, the Supreme Court held that such a defect does not invalidate or vitiate the trial."
36. Having regard to the finding in Banwari's case and the Full Bench judgment of High Court of Karnataka, it clear that 12 AIR 1962 (2) SC 1198 CPK, J & Dr. KMR, J 21 Crl.A.No.1115 of 2014 Section 465 Cr.P.C. is intended to cure any error, omission, irregularity or infraction of procedural law committed by the Court of competent Jurisdiction, unless such irregularity or illegality has in fact occasioned a failure of justice. The object of the Section is to secure justice by preventing the invalidation of a trial held on the ground of technical breaches of any provisions of the Code causing no prejudice to the accused. The intention is to eliminate all possibilities of acquittal of persons committing offences except on the merits. The procedural laws are designed to further the ends of justice and not to frustrate them by the introduction of endless technicalities. Ultimately, the object of any criminal trial is to see that the accused should be provided, a full and fair trial after giving him due opportunity to contest the matter and lead evidence in accordance with law. Therefore, the effect of not trying two cases as case and counter would definitely get vitiated if an element of prejudice is shown by the accused.
37. At this stage, Sri S. Dushyanth Reddy, learned Additional Public Prosecutor would contend that when there is enough evidence on record, to show the injuries sustained by the witnesses and accused, they cannot complain of any prejudice being caused to them.
38. The question now is, whether any prejudice is caused to the accused?
CPK, J & Dr. KMR, J 22 Crl.A.No.1115 of 2014
39. It may be true that in the instant case, the accused have brought on record the injuries sustained by them through the evidence of the doctor who was examined as P.W.24, but the said evidence would only establish the injuries sustained by the accused, but, it does not establish how the incident in which the accused sustained injuries took place, which lead to accused receiving injuries.
40. Therefore, when the fact of sustaining injuries or when the Investigating Officer is aware about a report being lodged by the accused against some of the prosecution witnesses, which is under investigation by him or by any other Officer or when the fact of counter case being registered, comes to light during the course of trial, every effort should be made by the investigating agency to see that both the cases are tried simultaneously one after the other to avoid miscarriage of justice and to avoid conflicting judgments and also to find out the genesis of the incident. As held earlier, even if one case is triable by Magistrate, there is no bar to get it tried along with the counter case triable by Court of Sessions. Apart from that, even the Courts, on coming to know about the pendency of a counter case, should make every effort to get it transferred, to be tried along with the counter case. No effort of such nature is made either by the investigating agency or even by the Sessions Court when such fact came to its light. Ergo, it can be said that prejudice which is inherent is caused to the accused, as true facts are not brought on record by the investigating agency.
CPK, J & Dr. KMR, J 23 Crl.A.No.1115 of 2014
41. One other fact which requires consideration is that A.7 filed a transfer application before the District Court which was not pursued. Even the District Court did not make any effort to hear and dispose of the said transfer application, leading to a disaster. Henceforth, we direct all the Subordinate Courts to give top priority to transfer applications filed seeking transfer of a case on the ground of case and counter case. We further direct that every effort should be made by all Judicial Officers to dispose of such applications at an early stage, failing which, it may lead to consequences, which would cause irreparable loss.
42. For the aforementioned reasons, we hold that the judgment of the learned Sessions Judge warrants no interference.
43. In the result, the appeal fails and it is accordingly dismissed, confirming the judgment, dated 16.05.2012 in Sessions Case No.132 of 2007, on the file of learned VII Additional District and Sessions Judge, Madanapalle.
Consequently, miscellaneous petitions, if any, pending shall stand closed.
_______________________________ JUSTICE C. PRAVEEN KUMAR ___________________________________ DR. JUSTICE K. MANMADHA RAO Date:17.02.2022 Note: LR copy to be marked B/o.MS CPK, J & Dr. KMR, J 24 Crl.A.No.1115 of 2014 THE HON'BLE SRI JUSTICE C. PRAVEEN KUMAR AND THE HON'BLE DR. JUSTICE K. MANMADHA RAO Note: LR copy to be marked B/o.MS CRIMINAL APPEAL NO.1115 OF 2014 (per the Hon‟ble Sri Justice C. Praveen Kumar) DATE:17.02.2022 MS