Karnataka High Court
Sri K N Ravikumar vs The State Of Karnataka By ... on 27 June, 2012
Author: Anand Byrareddy
Bench: Anand Byrareddy
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 27TH DAY OF JUNE 2012
BEFORE
THE HON'BLE MR. JUSTICE ANAND BYRAREDDY
CRIMINAL REVISION PETITION No.2097 OF 2005
BETWEEN :
1 Sri. K.N.Ravikumar,
Son of Nagarajaiah,
Aged about 28 years,
2 Sri. Rameshbabu,
Son of Nagarajaiah,
Aged about 26 years,
3 Sri. Ashwathappa,
Son of Rangappa,
Aged about 31 years,
4 Smt. Rangamma,
Wife of Nagarajaiah,
Aged about 50 years,
All are Residing at Ragimakalahalli,
Chikkaballapur Taluk,
Kolar District. ...PETITIONERS
( By Shri. Nagaraj Damodar, Advocate )
2
AND:
1 The State of Karnataka
by Chikkaballapura Police.
2 Narayanaswamy,
Son of Chikka Thimmaiah,
Aged about 42 years,
3 Avalappa,
Son of Chikka Thimmaiah,
Aged about 47 years,
4 Krishnappa,
Son of Chikka Thimmaiah,
Aged about 35 years,
5 Sree Rama,
Son of Venkatappa,
Aged about 30 years,
6 Narasimhamurthy,
Son of Venkatappa,
Aged about 22 years,
7 Gangappa,
Son of Madoalappa,
Aged about 22 years,
8 Aswathanarayana,
Son of Ashwathappa,
Aged about 22 years,
3
All are residents of Ragi Makala Halli,
Chickballapur Taluk. ...RESPONDENTS
( By Shri. P.Karunakara, High Court Government Pleader for R1
Shri. M.Jaiprakash Reddy, Advocate for Respondent Nos. 2 to 8 )
*****
This Criminal Revision Petition is filed under Section 401
Criminal Procedure Code, 1973, by the advocate for the petitioners
praying that this Hon'ble Court pleased to set aside the judgment and
order of acquittal dated 19.11.2005 passed in S.C.No.50/2003 on the
file of the Presiding Officer, Fast Track Court-V, Chikkaballapur, and
convict accused/respondent Nos. 2 to 8.
This Criminal Revision Petition is coming on for Hearing, this
day, the court made the following:
ORDER
Heard the learned counsel for the petitioners.
2. The first petitioner was the complainant, at whose instance a criminal case had been registered against Respondent Nos.2 to 8 herein and after investigation, the respondents having been charge- sheeted, the competent court of the Magistrate had committed the matter to the Sessions Court for trial, which in turn was assigned to the Fast Track Court. After the trial having run its course, the accused 4 were acquitted. It is that which is under challenge in the present petition.
3. The learned counsel for the petitioners would submit that the judgment of the Trial Court suffers from several infirmities. The complainant having suffered serious injuries and the same having been established at the trial, has been negated by the court below on several untenable grounds. He would further raise a legal contention as to the irregularity committed by the court below. He would point out that in the same incident, there was a counter case lodged by the present respondents against the petitioner, which had been tried before the Court of the Magistrate itself. As the Court of the Magistrate was of the opinion that the matter was not exclusively triable by the court of Sessions, has proceeded to acquit the present complainant therein. This is an irregularity, which would vitiate the proceedings. He would point out that insofar as cross cases are concerned arising out of the same incident, the law is well-settled. He would draw attention to the case of Nathi Lal and Others vs. State of U.P. and Another (1990 5 (Supp) SCC 145), wherein the Apex Court has held that the procedure to be adopted in a matter where there are cross cases, is to direct that the same learned Judge try both the cross cases one after the other. After the recording of evidence in one case is completed, he must hear the arguments and reserve the judgment. Thereafter, he must proceed to hear the cross case and after recording all the evidence he must hear the arguments, and 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.
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Further, insofar as a situation where the complaint and cross complaint relate to cases which would be triable by a court of Sessions, while the other complaint may not be exclusively triable by the Sessions Court, and in such a situation, as to what the courts should do has been answered in the case of Sudhir and Others vs. State of M.P. (2001) 2 SCC 688. The Supreme Court has held that it is a salutary practice, 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. It is not clear as to why the legislature is still parrying to incorporate such a salubrious practice as a statutory requirement in the Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C', for brevity). Where one of the two cases relating to the same incident is charge-sheeted or complained of, involving offences exclusively triable by a Court of 7 Session, but none of the offences involved in the other case is exclusively triable by the Sessions Court, the Magistrate has no escape from committing the former case to the Sessions Court as provided in Section 209 Cr.P.C. 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. Section 323 is incorporated in Cr.P.C. to meet similar cases also. Section 323 Cr.P.C. 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 the 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. 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 Code. A Sessions Judge would 8 have the power to try any offence under IPC. 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 Cr.P.C. Therefore, when a case involving offences 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 CJM. In Section 228(1) Cr.P.C., 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 CJM 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 CJM.
4. In the above view of the matter, insofar as the legal position is concerned, the counsel for the petitioner is right in his submission 9 that the case ought to have been tried by the same Sessions Court and the procedure not having been followed, would certainly result in the procedure as laid down by the Supreme Court being overlooked. However, in the case on hand, both the cases having resulted in acquittal, the exercise of again remanding the matters for a fresh trial, would only quench the thirst of the present petitioner for his revenge, since his complaint has been negated by the accused being acquitted. For otherwise, it serves little purpose. In that, there is no miscarriage of justice or injustice caused in the accused, in both the cases, having been acquitted. Therefore, there is no warrant for interference by this Court notwithstanding the established legal position. The petition stands dismissed.
Sd/-
JUDGE KS