Orissa High Court
Nishakar Panigrahi vs Kulamani Dixit And Ors. on 9 April, 1984
Equivalent citations: 1984(I)OLR543
JUDGMENT B.K. Behera, J.
1. This revision has been directed against the impugned order discharging the opposite parties 1 to 5 who had figured as the accused persons in the case. The case was one under Sections 147, 148 and 323 read with Section 149 of the Indian Penal Code. A charge-sheet had been placed after investigation into the case registerged on the basis of the first information report lodged by the petitioner. Mr. Kar, appearing on behalf of the petitioner, has urged that there are materials against the opposite parties Nos. 1 to 5 to frame charges and it was not permissible under the law to take into consideration the materials of the counter-case in finding out as to whether charges were to be framed. Mr. Jena, appearing for the opposite parties Nos. 1 to 5, has supported the impugned order as well-founded. Mr. Rath, the learned Additional Standing Counsel, has left this matter for a decision by this Court in view of the legal ground raised on behalf of the petitioner.
2. There have been a case and a counter-case between the parties, Thus there is one version from one side and another from the other. In the interests of justice, a case and a counter-case arising out of one and the same occurrence should be tried by the same Judge or Magistrate. The trials are to be held separately, but one after the other. (See 1983 Cuttack Law Reports ( Criminal ) 6-Khageswar alias Dasa Das and Ors. v. Gandharba Das and Ors., ). What must be kept in mind is that the materials placed before the Court in one case cannot be referred to and relied on in the other for passing an order of discharge or an order framing charges. The evidence in one case is not evidence in the other and cannot be considered while finding out as to whether the accused persons in the other case are guilty of the offences.
3. A perusal of the impugned order would undoubtedly show that while considering the question of framing charges, the learned Magistrate did not confine himself to the materials placed before him in connection with this case, but also referred to and relied on the materials placed before him in the counter-case and had perused the case-diary of this case as well as of the counter-case. He had referred to the statements of some persons recorded under Section 161 of the Code of Criminal Procedure in the counter-case while judging the truth of the story put forward by the prosecution in this case. Taking into consideration these and other materials, the learned Magistrate found that the opposite parties Nos. 1 to 5 had the right of private defence of property. Thus the learned Magistrate had committed an illegality by taking into consideration the materials in the counter-case while passing the impugned order. The impugned order cannot be sustained.
4. In the result, I would allow the revision, set aside the impugned order and direct the learned Sub divisional Judicial Magistrate to hear both the sides afresh and proceed in accordance with law.