Karnataka High Court
K.M. Ganesha And Anr. vs State Of Karnataka, By S.H.O. And Ors. on 29 May, 2003
Equivalent citations: 2003CRILJ3250, ILR2003KAR2488, 2003(5)KARLJ412, 2003 CRI. L. J. 3250, 2003 (9) ALLINDCAS 676, 2003 AIR - KANT. H. C. R. 1872, 2004 (3) KCCR 2370, (2003) ILR (KANT) (4) 2489, (2003) 5 KANT LJ 412, (2004) 1 RECCRIR 518, (2003) 4 ALLCRILR 381
Author: Mohan Shantanagoudar
Bench: Mohan Shantanagoudar
ORDER Mohan Shantanagoudar, J.
1. Heard Sri Ponnappa, learned Counsel for the petitioner and Sri G. Bhavani Singh, learned Addl. S.P.R for the State. The matter is taken up for final hearing by consent of both the advocates.
2. The petitioners herein who are accused in S.C.No. 94/02 pending before the Sessions Court, Madikeri, Kodagu District, have filed this petition seeking transfer of C.C.No. 1730/02 on the file of Prl. Civil Judge, Jr.Dn. and J.M.F.C., Madikeri, Kodagu to the Sessions Court, Kodagu at Madikeri and further prayed that both these cases shall be tried simultaneously in quick succession as case and counter case.
3. Sri Ponnappa has made available the investigation reports in both the cases.
4. I have perused the records in both C.C.No. 1730/02 and S.C.No. 94/02.
5. The facts in brief in S.C.No. 94/02 are that:
Respondent No. 2 in this petition namely Janardhana lodged a complaint before the Madikeri Rural Police Station on 25.4.2002 complaining that on that day at about 5.00 P.M. when the complainant along with certain others were returning from a marriage ceremony, accused No. 1 (Petitioner No. 1 herein), his wife Prema and his brother Siddartha (petitioner No. 2) and his wife Lalitha prevented him on the road, assaulted the complainant with stick and iron rod demanding 4 lakhs of rupees due by his brother in respect of a business transaction. It is further stated in the said complaint that some others namely Subhash Hanjana Venkatesh, Ittanike Manoj Kumar, Mukkali Dayananda and Mundodi Thimmaiah were also assaulted by the petitioners herein. As a result of the same, the complainant Janardhana and Subhash sustained injuries all over their body. The said complaint of Janardhana is registered in Cr.No. 55/ 02 before the Madikeri Rural Police Station on 25.4.02 for the offences punishable under Sections 341, 324, 506(2) r/w Section 34 I.P.C.
On further information of the complainant Sri Janardhana that the injured Subhash who was underdoing treatment at Venlock Hospital, Mangalore expired on 5.5.2002 at 12.45 A.M. , Section 302 r/w 34 I.P.C. was added and the same was brought to the notice of the learned J.M.F.C., Madikeri. The police after investigation filed a final report against the petitioners herein who are accused Nos. 1 and 2 for the offence punishable under Sections 341, 324, 506(2), 302 r/w Section 34 I.P.C. As a matter is exclusively triable by the Sessions Court, Madikeri, the same was committed to Sessions Court and the same is numbered as S.C.No. 94/02 which is pending trial.
6. The brief facts of C.C.No. 1730/02 on the file of J.M.F.C., Madikeri are:
On the basis of the complaint dated 25.4.02 of Sri Siddartha, the petitioner No. 2 herein, at Emergency Ward in Government Hospital, Madikeri, a case in Cr.No. 56/02 was registered in Madikeri Rural Police Station against the accused persons for the offences punishable under Sections 341, 326, 427, 506(2) r/w Section 34 I.P.C. The complaint discloses that respondent No. 2 herein namely Janardhana stopped the jeep of the petitioner nos. 1 and 2 at 5.00 P.M. on 25.4.02 and assaulted on the head of petitioner No. 2 and also all over his body. It is further alleged that along with Janardhana, his friends also assaulted petitioner No. 2 and his wife Lalitha with sticks. When Sri Ganesha, petitioner No. 1 herein intervened in the incident and tried to pacify the matter, he was also assaulted by the said Janardhana and his friends. They also damaged the jeep. The police after investigation filed the final report and submitted the same to the Court. Now the matter is pending trial before the Prl.Civil Judge (Jr.Dn.) and J.M.F.C., Madikeri, Kodagu Dist. in C.C.No. 1730/ 02 for the offences punishable under Sections 341, 326, 427, 506(2) r/w Section 34 I.P.C. as the same are triable by J.M.F.C., Madikeri, Kodagu District.
7. Admittedly and from the facts of both the cases, it is clear that both the criminal cases arise as a result of the same incident. Because of the single incident of fighting between the two groups, two crimes are registered. Virtually these are two different versions of the same incident resulting in two criminal cases oftenly called as "case and counter case". Learned Addl.S.P.P. Sri Bhavani Singh after perusal of both the charge sheets submitted that these two cases relate to the same incident and they are cross cases.
8. Learned Counsel for the petitioners Sri Ponnappa vehemently submits that as these two cases arise out of the same incident, they have to be tried simultaneously in quick succession before the same Court.
9. I find considerable force in the submission of the learned Counsel for the petitioner. The Hon'ble Supreme Court in the case of NATHI LAL v. STATE OF UP. 1990 SCC (Cri) 638 has observed thus:
'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 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 of arguments urged in the cross-case. But both the judgments must be pronounced by the same learned Judge one after the other".
10. The aforesaid observation completely supports the submission of Sri Ponnappa that in such cases the same Judge must try both cross-cases one after another simultaneously. Such simultaneous trial of case and counter case is necessary to avoid conflicting decisions regarding the same incident. After recording the evidence in both the case one after the other, he has to hear the arguments in both the cases thereafter one after the other. Thereafter on the same day, the judgments in both the cases will have to be pronounced. In the case of NATILAL it is further observed, in deciding each of the case, he can rely only on the evidence recorded in that particular case. The evidence recorded in the cross-case cannot be looked into.
11. Sri Ponnappa further submitted that, as out of the present two cases, one is triable exclusively by the Sessions Court and another is triable by the Magistrate Court and as both the cases relate to a single incident, they will have to be tried together as aforesaid. He submitted that the learned Magistrate commit the criminal case, on his file to the Sessions Court for simultaneous trial as provided under Section 209 of Cr.P.C.
12. Section 209 Cr.P.C. cannot be invoked by the Magistrate in such a situation as none of the offences in C.C.No. 1730/2002 are exclusively triable by the Sessions Court. There is no specific provision in Cr.P.C. to meet such a contingency. In such a situation, the only course open for the Magistrate is to commit the case before him to the Sessions Court in exercise of his jurisdiction under Section 323 of Cr.P.C.
Section 323 of Cr.P.C. reads thus:
"Procedure when, after commencement of inquiry or trial. Magistrate finds case should be committed - 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".
13. For facilitating the simultaneous trial before the Sessions Court, as observed in the Judgment reported in 1990 SCC (Cri) 638 referred to supra, it shall appear to the Magistrate that the case pending before him ought to be tried by the Sessions Court and consequently he shall commit the case to the Sessions Court, though the same is not exclusively triable by the Sessions Court.
14. In this context a reference may be made to Section 26 of Cr.P.C. which states that the Sessions Court has the power to try any offence under I.PC. That means, the Sessions Court can try offences even which are not exclusively triable by the Sessions Court. In this connection, a reference may be made to the Judgment of the Hon'ble Supreme Court in the case of SUHDIR AND ORS. v. STATE OF M.P. . The observations made and the dictum laid down therein are aptly applicable to the facts of this case.
15. The facts in the case of SUDHIR v. STATE OF M.P. (supra) discloses that two matters have arisen out of the same incident in that case also. Both the cases were committed to Sessions Court as the offence in those two cases were punishable under Section 307 I.P.C. which was exclusively triable by the Sessions Court. Learned Sessions Judge while framing the charge found that in one of the sessions case, there is no material against the accused for the offence punishable under Section 307 I.P.C. and consequently after framing the charge under Section 324 I.P.C., he sent back the file to the Magistrate Court for trial. However, he had retained another sessions case as the offence was exclusively triable by the Sessions Court. Ultimately when the matter came up before the Supreme Court, the Hon'ble Supreme Court held that proper course that could have been adopted by the Sessions Judge was to hear both the matters simultaneously one after the other, though in one of the cases the offences with which the accused are charged, are not exclusively triable by the Sessions Court.
16. In view of the above, the prayer of the learned Counsel for the petitioner is entitled to be granted. The Prl. Civil Judge (Jr.Dn) and J.M.F.C., Madikeri, is directed to commit C.C.No. 1730/02 pending on its file to the Sessions Court, Kodagu at Madikeri to be tried along with S.C.No. 94/02. The Sessions Judge after getting the file in C.C.No. 1730/02 shall try both the aforesaid cases simultaneously and dispose of both the matters in the manner set out in NATHILAL's case reported in 1990 SCC (Cri) 638.
17. With the aforesaid observations, the Criminal Petition is allowed.