Karnataka High Court
Sri Narayanagowda vs Bengaluru International on 11 January, 2017
Author: Anand Byrareddy
Bench: Anand Byrareddy
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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.1402/2016
BETWEEN:
Sri Narayanagowda,
S/o Late Gopalappa,
Aged about 52 years,
R/at No.122, 12th 'B' Main,
VI Block, Rajajinagara,
Bengaluru - 560 010. ...Petitioner
(By Shri Subramanya.H.V, Advocate)
AND :
1. Bengaluru International Airport
Police Station,
Bengaluru - 560 300.
2. Anand,
S/o Late Gopalappa,
Aged about 58 years,
3. Smt.Hamsamma
W/o Anand,
Aged about 45 years,
4. Miss.Arpitha,
D/o Anand,
Aged about 22 years,
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Respondents 2 to 4 are
Residing at Poojanahalli Village,
Devanahalli Taluk,
Bengaluru Rural District - 562 110.
Respondents
(By Shri B.Visweswaraiah, High Court Government Pleader
for respondent No.1,
Shri M.S.Prakash, Advocate for respondent Nos.2 to 4)
This Criminal Petition is filed under Section 407 of
the Code of Criminal Procedure, 1973, praying to withdraw
the case pending in C.C.No.3308/2014 on the file of Civil
Judge and JMFC, Devanahalli and assigned the same
before the V Additional District and Sessions Judge,
Devanahalli, Bengaluru Rural District with a direction to try
this case along with S.C.No.15002/2015 which is pending
on the file of V Additional District and Sessions Judge,
Devanahalli, Bengaluru Rural District, for the reasons
stated above.
This Criminal Petition coming on for admission this
day, the Court made the following:
ORDER
Heard the learned counsel for the petitioner and the learned counsel for respondent Nos.2 to 4 as well as learned Government Pleader for respondent No.1.
2. A case has been registered against respondent Nos.2 to 4, who are arraigned as accused Nos.1 to 3 in Crime No.25/2014 for the offences punishable under Sections 506, 504, 323 and 324 read with Section 34 of -3- the Indian Penal Code, 1860, (hereinafter referred to as 'IPC' for the sake of brevity). On a complaint filed by the petitioner herein, a First Information Report (FIR) has been submitted to the Court. After completion of the investigation, the Police have filed a charge-sheet against respondent Nos.2 to 4 for the offences punishable under Sections 323, 324, 504 and 506 read with Section 34 of the IPC, which is now pending in C.C. No.3308/2014 before the Judicial Magistrate of First Class, Devanahalli. It then transpires that arising out of the same incident, respondent No.2 herein had also filed a complaint in respect of which, a case has been registered against the petitioner and another for the offences punishable under Sections 504, 307, 323, 324 and 506B read with Section 34 of the IPC in Crime No.24/2014 and Police have also completed investigation and filed a charge-sheet against the petitioner herein in C.C. No.3503/2014 and on the point of jurisdiction, the case against the petitioner is committed to the Court of V Additional District and Sessions Judge, Devanahalli, Bengaluru Rural District, -4- which is now registered as case No.SC.15002/2015. As per the record in Crime Nos.24/2014 and 25/2014, the offences have taken place on 08.03.2014 between 3 p.m. and 4:45 p.m. and the place of offence is Poojanahalli village, Devanahalli Taluk, Bengaluru Rural District. It is in view of this, the case in crime No.24/2014 and crime No.25/2014 are case and counter case arising out of the same incident and involving the same parties. Therefore, the petitioner is said to have filed a petition under Section 408 of the Criminal Procedure Code, 1973, (hereinafter referred to as 'Cr.P.C.', for brevity) before the Prl. District and Sessions Judge, Bengaluru Rural District, in Crl.Misc. No.650/2015, which has been dismissed holding that the petitioner has a right to file necessary application before the Magistrate for the same relief that is sought for. Therefore, the petitioner had filed an application under Section 323 of the Cr.P.C., before the jurisdictional Magistrate through the Prosecutor and the learned Judge without considering the application, has adjourned the -5- case and therefore, aggrieved by the said order, the present petition is filed.
3. Notwithstanding the refusal of the Sessions Court to entertain the petition or the jurisdictional Magistrate seeking to ignore the application filed by the petitioner, the legal position is no longer res integra 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 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 -6- 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 prevent the conflicting decisions regarding the same incident.
4. 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 -7- 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."
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 -8- 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 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 -9- 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 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.
5. 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
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Supreme Court has pointed out that the Sessions Judge has the power to try any offence under the Indian Penal 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 Chief Judicial Magistrate, and thereupon
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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 committed to the Sessions Court and one of those cases involves an offence exclusively triable by the
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Sessions Court and the other does not involve any such offence.
6. 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 present petition is allowed. The case in C.C. No.3308/2014 pending before the Civil Judge and JMFC., Devanahalli, shall be committed to the Court of V Additional District and Sessions Judge, Devanahalli, and further steps shall be taken thereafter in accordance with law to be tried as case and counter case along with S.C. No.15002/2015 pending on the file of that Court.
Sd/-
JUDGE sma