Karnataka High Court
B K Basavaraju vs N Annappa Naik on 11 January, 2017
Author: Anand Byrareddy
Bench: Anand Byrareddy
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11th DAY OF JANUARY, 2017
BEFORE
THE HON'BLE MR. JUSTICE ANAND BYRAREDDY
CRIMINAL PETITION NO. 8777 OF 2016
Between:
B.K.Basavaraju
S/o Late Krishnamurthy
Aged about 34 years,
Assistant Professor,
At Government First Grade College,
Davanagere, permanent resident of
R. Nulenur, Ramagiri Hobli,
Holalkere Taluk,
Chitradurga District.577526. ...Petitioner
(By Shri Rudrappa.P, Advocate)
And:
1. N.Annappa Naik
D/o Narayana Naik,
Aged about 34 years,
Assistant Professor,
At Government First Grade College,
]N.R.Pura, permanent resident of
Harohithlu Village,
Hosanagar Taluk,
Shimoga - 577426.
2
2.The State of Karnataka
Represented by Police Sub-inspector
Police Station, N.R.Pura,
Chikkamagalur District - 577128.
Represented by
State Public Prosecutor
High Court Buildings
Bengaluru - 560001. ...Respondents
(By Shri.B.Visweswaraiah, HCGP)
---
This Criminal Petition is filed under Section 482 of
Cr.P.C. praying to quash the order in Crl.Misc.No.
651/2016 dated 19.09.2016 passed by the Principal
Sessions Judge at Chikkamagaluru.
This Petition coming on for admission this day, the
Court made the following:-
ORDER
Heard the learned counsel for the petitioner. The second respondent had registered a complaint against the petitioner alleging that on the basis of the complaint by respondent No.1 a case was registered for offence punishable under Sections 324, 323, 504 and 506 of the Indian Penal Code, 1860. The allegations were that the respondent No.1 was working in the college at N R Pura 3 where the petitioner was a lecturer, and on 11.7.2015 at about 2.00 p.m. when he was preparing a timetable and was discussing with some of his staff members the petitioner had suddenly barged in and is said to have abused the respondent in foul language and assaulted him on his forehead using a duster and twisted his arm, thereby causing injury and kicked him on the right leg with the stool and continued to abuse him in foul language and in this background a complaint is lodged before the police. On the basis of the complaint a case has been registered and a charge sheet has been filed before the Civil Judge and JMFC, Narasimharajapura and it is now registered as C.C. No.149/2016.
2. It is the petitioner's case that it was the respondent who had abused the petitioner on 11.7.2015 and that he had lodged a complaint against him on 14.07.2015 before the very respondent police and a case has been registered and a charge sheet also has been 4 submitted before the Additional District and Sessions Judge at Chikkamagaluru and a case has now registered as Spl.C.C.No.7/2016 for the offence punishable under Sections 325, 504, 307, 506 of the Indian Penal Code, 1860 and Sections 3(1)(X)(2)(v) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The first respondent had thereafter filed a miscellaneous petition before the Sessions Judge seeking the transfer of C.C. No.149/2016 which was pending before the Magistrate aforesaid the petitioner had registered the said petition. The Sessions Judge having allowed the application directed the Magistrate to commit the case in C.C. No.149/2016 is sought to be quashed in the present petition.
3. The learned counsel would point out that the case pending before the Magistrate would be without the jurisdiction of the Sessions Court. As there are no offences which are exclusively triable by the trial court which would require such a transfer and hence he would contend that 5 the order is without jurisdiction. Secondly, it is contended that if the court below is seeking to transfer the case from the Magistrate's court to itself to be tried as a case and a counter case it would result in denying the right of appeal to the petitioner which otherwise would be available to him and therefore seeks that this court to interfere as it has resulted in a miscarriage of justice and would be clearly a violation of jurisdiction and hence the present petition.
4. The issues raised in this petition are no longer res-integra as the legal position in such situation is well settled, in a situation such as this, where there is a case and counter case and one of the cases on account of jurisdiction is before a Sessions Court and the other cross case is before the lower Court, namely, a Magistrate Court, the procedure to be adopted has been the subject matter of a decision of the Supreme Court in the case of Sudhir and others vs. State of M.P., ((2001) 2 Supreme Court Cases
688). In a similar situation, the Supreme Court having 6 addressed the legal provisions that would be applicable, has observed that when two criminal cases relate to the same incident, they are tried and disposed of by the same court by pronouncing judgments on the same day. Such two different versions of the same incident resulting in two criminal cases are compendiously called "case and counter- case" by some High Courts and "cross-cases" by some other High Courts. The practical reasons for adopting a procedure that such cross-cases shall be tried by the same Court, are summarized thus:
"(1) It staves off the danger of an accused being convicted before his whole case is before the court.
(2) It deters conflicting judgments being delivered upon similar facts.
(3) In reality the case and the counter-case are, to all intents and purposes, different or conflicting versions of one incident."
Many High Courts have reiterated the need to follow the said practice as a necessary legal requirement in order to 7 prevent the conflicting decisions regarding the same incident.
5. The Supreme Court in Nathi Lal vs. State of U.P., (1990 Supp SC 145) has laid down the procedure to be followed in such a situation in these words:
"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 8 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."
The question as to how the scheme is to be implemented in a situation, where one of the two cases (relating to the same incident) is charge-sheeted or complained of, and involves offences or an offence exclusively triable by a Court of Sessions, 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 Cr.P.C. Once the said case is committed to the Sessions Court, thereafter it is governed by the provisions subsumed in Chapter XVIII of the Cr.P.C. Though, the next case cannot be committed in accordance with Section 209 of the Cr.P.C., the Magistrate 9 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 Cr.P.C., to meet similar cases also. Section 323 of the Cr.P.C., is extracted hereunder for ready reference:
"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."
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 10 Magistrate as one which ought to be tried by the same Court of Sessions. The reasons for the said proposition are already expressed. Therefore, the Magistrate can exercise the special power conferred on him by virtue of Section 323 of the Cr.P.C., when he commits the cross-case also to the Court of Sessions. 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 of the Cr.P.C.
6. Insofar as Section 228 of the Cr.P.C., which indicates 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 Sessions is concerned, he is to transfer the case for trial to the Magistrate. In this context, the Supreme Court has pointed out that the Sessions Judge has the power to try any offence under the Indian Penal 11 Code. It is not necessary for the Sessions Court that the offence should be one exclusively triable by a Court of Sessions. This power of the Sessions Court can be discerned from a reading of Section 26 of the Cr.P.C. When it is realized that the Sessions Judge has the power to try any offence under the IPC., and when a case involving an offence not exclusively triable by such court is committed to the Court of Sessions, 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 Magistrate. In this regard, Section 228(1) of the Cr.P.C., reads as follows:
"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 12 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."
It is pointed out by the Supreme Court that 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 the Court 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 13 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.
7. Therefore, given the above legal position, there is no escape from the fact that the case pending before the Magistrate would have to be committed to the Sessions Court as it is a case arising out of the same incident which is the subject matter of a case already pending before the Sessions Court and shall be tried by the Sessions Court as a case and counter case.
Accordingly, the petition stands disposed of. The order in Crl.Misc.No.651/2016 dated 19.09.2016 passed by the Principal Sessions Judge, Chikkamagaluru stands quashed.
Sd/-
JUDGE ykl