Delhi District Court
Jai Bhagwan vs . State on 8 May, 2012
1
IN THE COURT OF SHRI SURINDER S. RATHI:ASJ:02:
CENTRAL: ROOM NO.32:TIS HAZARI COURTS :DELHI
ID NO:02401R0109452012
CA NO: 23/2012
Jai Bhagwan vs. State
FIR NO: 285/97
U/s 323/34 IPC
PS ANAND PARBAT
IN THE MATTER OF
1. Jai Bhagwan (Retd.SI)
S/o Sh. Dilip Singh
R/o Village & PO Mnahra
Distt. Sonepat, Haryana
2.Rajinder Kumar (HC)
S/o Sh. Tale Ram
R/o Village Bhasanru
Distt. Rohtak
Haryana
3.Krishan Avtar (Ct.)
S/o Sh. Kashi Ram Yadav
R/o F11J, Laxmi Park
Nangloi, Delhi
4.Satish Kumar (Ct.)
S/o Sh. Kishan Lal
R/o A159, Paramhans Vihar
Loni, Ghaziabad, UP. .......Appellants / Convicts
Vs.
1.The State
2.Smt. Suman Devi
W/o Sh. Ram Prashad
R/o 2087/14, Gali No.21,
Prem Nagar, Anand Parbat
Delhi.
3.Smt. Chandrama Devi
W/o Sh. Kamal Pal
R/o B2087/10
Gali No.21, Prem Nagar,
Delhi.
4.Smt. Nirmala Sharma
W/o Sh.A.N.Sharma
R/o 198G, MIG Flats
Rajouri Garden, New Delhi. ...... Respondents / Complainants
Page 1 / 5 of Judgment on Appeal in Jai Bhagwan & Ors Vs. State dt. 8.5.2012 2 Appeal against the impugned judgment of conviction dt. 23.2.2012 and order on sentence dated 25.2.2012 Date of Institution : 12.3.2012 Date of final hearing : 08.5.2012 Date of final order : 08.5.2012 JUDGMENT ON APPEAL
1. This appeal has been preferred by the four convicts against the judgment of Ld. Magistrate dated 23.2.2012 and order on sentence dated 25.2.2012 whereby all the four were convicted for commission of offence punishable U/s 323/34 IPC and were sentenced to undergo RI for a period of six months apart from order of payment of compensation U/s 357 Cr.P.C. of Rs.10,000/ each to the victims I/D one month SI.
2. I have heard arguments of Ld. Counsel Sh. S.K.Yadav Advocate for all convicts / appellants and Ld. Addl. PP Sh. V.K.Negi for State and Ld. Counsel Sh. Kuldeep Gola Advocate for newly added three respondents / complainants. I have perused the appeal file as well as Trial Court Record.
3. Brief facts are that all the four appellants / convicts are police officials who were posted at PS Anand Parbat in the year 1997. On 14.9.97 DD No.9B was received at PS Anand Parbat at 11.40am to the effect that some people including ladies are trying to encroach the Ramjas Foundation Land near Prem Nagar, Baljeet Nagar by raising jhuggis. As per this DD when the security staff of Foundation tried to stop them, the encroachers quarreled with them. This DD was assigned to SI Jai Bagwan who left for the spot along with Ct. Kishan Avtar . At the spot as per charge sheet filed under FIR No. 272/97, PS Anand Parbat, the police officials found that one Smt. Suman and Smt. Page 2 / 5 of Judgment on Appeal in Jai Bhagwan & Ors Vs. State dt. 8.5.2012 3 Chandrma Devi were erecting Jhuggis after encroaching Foundation Land. Police officials asked them to not to encroach land or erect jhuggis apart from asking them to remove the encroachment. Upon which they reportedly started abusing police officials and hurled bricks on the Police Party. On the contrary it was case of the two ladies in FIR No. 285/97 in hand that on 14.2.97 at noon time four police officials, i.e. convicts herein came to her house and started demolishing wall of her house. They demanded money from them and gave beatings to them. On these two versions above two separate cross FIRs were registered. Two separate cross chargesheets were filed . Both the cases were being jointly tried by Ld. Magistrate as they were emanating from the same incident as cross versions .
4. However, at the fag end of the trial , even though law requires that both the cross cases ought to have been tried and decided simultaneously vide separate judgments but Ld. Magistrate concluded the trial of the present case i.e. FIR No. 285/97 while the cross case under FIR No. 272/97 was only at the stage of prosecution evidence. In my considered view as per settled law by various judgments of Hon'ble Supreme Court , cross cases have to be tried and decided by the same Court together by passing judgment on the same day.
5. In case titled "State of MP Vs. Munshi Lal," 2003(3) RCR 287 SC, where in it has been held that :
"two FIRs of same incident must disposed by the same judge in the matter by two separate judgments to avoid conflicting judgments of the same incident.".
Page 3 / 5 of Judgment on Appeal in Jai Bhagwan & Ors Vs. State dt. 8.5.2012 4
6. Similar views were expressed by Hon'ble Supreme Court in case titled "Sudhir Vs. State" (2001) 2, SCC 688 and AIR 2001 SC 826.
7. In another case titled, " Kewal Krishan Vs. Suraj Bhan" AIR 1980 SC 1780 similar views were also expressed by Hon'ble Supreme Court , " There is a risk of two Courts coming to conflicting findings. To obviate such a risk, it is ordinarily desirable that the two cases should be tried separately, but by the same Court."
8. Per se the act of Ld. Magistrate in deciding one of the cross cases while the other one is at the midway of trial is an irregularity which goes to the root of the matter and appears to have resulted in no adhering to letter and spirit of case laws of Hon'ble Supreme Court. Arriving at a decision in two cross cases emanating from same incident is a sensitive issue as cross version of both the sides have to be closely looked into & cross evidence has to be jointly evaluated before arriving at conclusion as to which party is the aggressor and which party initiated the claimed assault. Ld. Counsel Cr.LJ 169, for appellant has relied on Balbir Vs. State of Haryana, 2000 wherein Full Bench of Hon'ble Supreme Court remanded the matter back in somewhat similar circumstances by setting aside the finding of the Appellate Court in a Murder case. In that matter Hon'ble Supreme Court while referring to Harjinder Singh Vs State of Punjab, AIR 1985 SC 404 observed :
" We are afraid in the present case even that much which was directed in Harjinder Singh's case (AIR 1985 SC 404) (supra) can not be permitted, for , both versions here are diametrically divergent without anything in common except that the murdered person was the same. In such cases the most appropriate procedure to be followed by a Sessions Judge should be the same Page 4 / 5 of Judgment on Appeal in Jai Bhagwan & Ors Vs. State dt. 8.5.2012 5 as followed in the present case, i.e. the two trials were separately conducted one after the other by the same Court before the same Judge and judgments in both cases were separately pronounced on the same day."
9. In view of the above , without going into the merits of the decision arrived at by Ld. Magistrate in the impugned judgment, it is found that decision of Ld. Magistrate of deciding one cross case while the other is at the stage of prosecution evidence is not correct as per law and as such same can not be sustained on account of irregular procedure. Since Ld. Magistrate ought to have decided both the chargesheet in cross FIRs No. 272/97 and 285/97 vide separate judgments announced on the same day, impugned judgment and order on sentence dated 23.2.2012 and 25.2.2012 respectively are hereby set aside in exercise of powers conferred under Section 386 Cr.P.C.
10.The matter is remanded back to the Court of Ld. Magistrate with the direction that all the sides shall be reheard and decision in this matter under FIR No. 285/97 shall be arrived at simultaneously on the same day along with connected cross matter, under FIR No.272/97 , more so, since this later FIR was registered earlier in time.
11.Parties are directed to appear before Ld. Magistrate on 10.5.2012, date already fixed in the cross case. Appeal file be consigned to RR and TCR be sent back with copy of this order.
ANNOUNCED AND DICTATED IN OPEN COURT ON : 8.5.2012 (SURINDER S. RATHI) Addl. Sessions Judge02 Central : Delhi Page 5 / 5 of Judgment on Appeal in Jai Bhagwan & Ors Vs. State dt. 8.5.2012