* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Crl.App. 332/1998
% Date of reserve: 20.07.2009
Date of decision: 27.07.2009
AVTAR SINGH ... APPELLANT
Through: Mr. D.C. Mathur, Sr. adv.,
Mrs. Jaspreet Gogia, advs.
Versus
The STATE (NCT of Delhi) ...RESPONDENT
Through: Mr. Arvind Kr. Gupta, APP for State
WITH
+ Crl.Rev.P. 414/1998
AVTAR SINGH ... PETITIONER
Through: Mr. D.C. Mathur, Sr. adv.,
Mrs. Jaspreet Gogia, advs.
Versus
KISHAN SINGH & ORS. ...RESPONDENT
Through: Mr. Arvind Kr. Gupta, APP for State
None for respondents no. 1 - 4.
CORAM:
HON'BLE MR. JUSTICE MOOL CHAND GARG
1. Whether the Reporters of local papers
may be allowed to see the judgment? Yes
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be Yes
reported in the Digest?
MOOL CHAND GARG, J.
1. This common order shall dispose of the aforesaid criminal appeal and criminal revision petition arising out of a common Crl.App. 332/1998 & Crl.Rev.P. 414/1998 Page 1 of 12 judgment/order dated 14.8.1998 passed by the Additional Sessions Judge.
2. The appeal has been filed by Avtar Singh, the appellant, against the aforesaid judgment of the Additional Sessions Judge in Sessions Case No. 88/97 in case FIR No.195/95 of Police Station Saraswati Vihar convicting him under Section 307 IPC as also against the order of sentence dated 18.8.1998, whereby he was sentenced to undergo RI for ten years with a fine of Rs.5,000/- and in default to further undergo SI for two years.
3. The revision petition has also been filed by Avtar Singh aggrieved from the consolidated judgment dated 14.8.1998 allowing the revision petition of respondent Nos. 1 to 4 i.e. (Kishan Singh, Paramjit Singh, Parvinder Singh and Bhola) filed under Section 397 Cr.P.C. against the order dated 14.8.1995 in Complaint Case No. 18/1/95 instituted by appellant/petitioner, whereby those respondents were summoned to face trial for the offences under Section 323/452/506/34 IPC. While allowing the revision petition, the learned Additional Sessions Judge also dismissed the complaint.
4. It is the case of the appellant/petitioner that the complaint and the FIR were cross cases and ought to have been decided together. However, the learned Additional Sessions Judge convicted the appellant/petitioner and allowed the revision petition of respondent Nos. 1 to 4 on the basis of evidence in the Sessions case without considering the record of the revision petition and the evidence collected by the police who submitted their report under Section Crl.App. 332/1998 & Crl.Rev.P. 414/1998 Page 2 of 12 156(3) Cr.P.C. on 25.6.1995.
5. It is submitted on behalf of the appellant/petitioner that the FIR bearing No. 195/95 which culminated in Sessions Case No.88/1997 was in fact a cross case in view of the allegation made by the petitioner in his complaint registered as Complaint Case No. 18/1/95 against respondent Nos. 1 to 4, of whom respondent no.3, Parvinder Singh is the complainant in the FIR.
6. It has been submitted that in view of the judgment of the Apex Court in the case of Nathi Lal & Ors. Vs. State of U.P. & Anr. 1990 (Supp) SCC 145 and State of M.P. Vs. Mishralal and Ors. (2003) 9 SCC 426, both these cases ought to have been tried together and thus could have been disposed of only after the revision petition would have been disposed of after examining the record of that case and not on the basis of evidence which came on record in the FIR. It has been submitted that the Additional Sessions Judge vide impugned judgment/order dated 14.08.1998 convicted the appellant in FIR No.195/95 under Section 307 IPC on the basis of the evidence so led and allowed the revision petition filed by respondent Nos. 1 to 4.
7. I have given my thoughtful consideration to the submissions made by learned senior counsel for the appellant/petitioner. I have also heard the learned APP for the State. Insofar as the private respondents are concerned, despite service they have not cared to cause appearance.
Crl.App. 332/1998 & Crl.Rev.P. 414/1998 Page 3 of 12
8. A bare perusal of the order dated 14.8.1998 goes to show that while concluding the trial in Sessions Case No.88/97 pertaining to FIR No.195/95 the trial court allowed the revision petition filed by respondent Nos. 1 to 4 against the summoning order passed by the Metropolitan Magistrate in the complaint case filed by the appellant/petitioner in respect of the same incident. The relevant observation made by the Additional Sessions Judge in this regard is reproduced hereunder:-
"In view of the above decision in this case revision petition no. 1/98 titled as Kishan Singh etc. Vs. State and Avtar Singh is allowed and the order passed by the Ld. MM Delhi summoning the respondents 1 to 4 in that case to be set asided".
9. The learned Senior counsel for the appellant/petitioner has contended that the impugned judgment dated 14.8.1998 passed by the Additional Sessions Judge convicting the appellant in case FIR No. 195/95 and allowing the revision petition bearing No. 1/98 is unsustainable for the following reasons:-
(i) Because the revision petition bearing No.1/98 was filed by respondent Nos. 1 to 4 against the summoning order dated 14.8.1995 in complaint case in respect of the same incident alleging commission of various offences by these respondents. In that case on the basis of the report filed under Section 156(3) Cr.P.C. the Metropolitan Magistrate concerned summoned respondent Nos. 1 to 4 vide his order dated 14.8.1995. Instead of examining the revision petition in accordance with law, the Additional Crl.App. 332/1998 & Crl.Rev.P. 414/1998 Page 4 of 12 Sessions Judge without even caring to have referred the record of the revision petition or the evidence which was available on record has simply allowed the said revision petition in the favour of respondent Nos. 1 to 4 merely because he convicted the appellant/petitioner in Sessions Case No. 88/97 arises out of FIR No.195/95. The Additional Sessions Judge has not even discussed the evidence which came on record in the complaint filed on behalf of the appellant/petitioner.
(ii) In fact the said revision petition arose out of the complaint filed by the appellant/petitioner against respondent Nos. 1 to 4 in respect of the same incident which is the genesis of the FIR in which the appellant/petitioner was sent for trial under Section 307 IPC and therefore, it was in the nature of cross-case. Thus, the Sessions Case No. 88/97 under Section 307 IPC against the appellant/petitioner as well as the complaint case registered on the basis of complaint filed by the appellant/petitioner against respondent Nos. 1 to 4 should have been decided together.
(iii) The learned senior counsel also submitted that the order passed in the Sessions Case no. 88/97 also cannot be sustained inasmuch as per the law laid down by the Apex Court in Nathi Lal's case (supra) and in the case of State of M.P. Vs. Mishralal and Ors.(supra) the cross cases Crl.App. 332/1998 & Crl.Rev.P. 414/1998 Page 5 of 12 are required to be decided by the same Judge together though by way of two separate judgments. In the present case also, the Police case filed on the basis of investigation conducted on the complaint filed by the third respondent and the complaint case filed by the appellant/petitioner, Avtar Singh, who was made an accused in FIR No. 195/95, were pertaining to the same incident and as such these were cross cases and should have been tried together.
(iv) The procedure to deal with the cross cases has been laid down by the Apex Court in State of M.P. Vs. Mishralal (supra), wherein it has been held:
6. For the sake of convenience we have devised to categorize the case under the following headings: (1) cross-cases be tried together, (2) genesis of occurrence; (3) presence of accused Ashok Kumar at the place of incident; (4) common object; (5) right of private defence; and (6) non-explanation of the injuries sustained by the accused, by the prosecution.
Cross-cases be tried together
7. Undisputedly, accused Mishrilal lodged the report to the police vide Ext. D-8 over the same incident which happened on 5-3-1987, in which he had clearly stated that the injuries were sustained by him and his son Madhusudan at the hands of the prosecution party. It is also not disputed that on the strength of the complaint lodged by Mishrilal, investigation was also carried out and challan was filed, namely, Crime Case No. 52 of 1987 under Sections 147, 148, 149 and 324 IPC against the prosecution party which is pending for disposal before the learned Judicial Magistrate, First Class. In the said challan, the prosecution party is stated to be the aggressor. This Court in Nathi Lal v. State of U.P.1 pointed out the procedure to be followed by the trial court in the event of cross-cases. It was observed thus:
"2. 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 Crl.App. 332/1998 & Crl.Rev.P. 414/1998 Page 6 of 12 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."
8. In the instant case, it is undisputed, that the investigating officer submitted the challan on the basis of the complaint lodged by the accused Mishrilal in respect of the same incident. It would have been just, fair and proper to decide both the cases together by the same court in view of the guidelines devised by this Court in Nathi Lal case. The cross-cases should be tried together by the same court irrespective of the nature of the offence involved. The rational behind this is to avoid the conflicting judgments over the same incident because if cross-cases are allowed to be tried by two courts separately there is likelihood of conflicting judgments. In the instant case, the investigating officer submitted the challan against both the parties. Both the complaints cannot be said to be right. Either one of them must be false. In such a situation, legal obligation is cast upon the investigating officer to make an endeavour to find out the truth and to cull out the truth from falsehood. Unfortunately, the investigating officer has failed to discharge the obligation, resulting in grave miscarriage of justice.
10. In the present case also the facts are similar inasmuch as on a complaint made by the third respondent the police registered an FIR bearing No.195/95 under Section 307 IPC against the appellant/petitioner, investigated the same and filed a challan against him which resulted in Sessions Case No. 88/97 which was decided by the Additional Sessions Judge vide judgment dated 14.8.1998, whereby the appellant/petitioner has been convicted under Section 307 IPC and for the same incident Complaint Case No.18/1/1995 was filed by the appellant/petitioner, wherein on the basis of investigation conducted on behalf of the SHO Saraswati Vihar on an order passed by the Metropolitan Magistrate under Crl.App. 332/1998 & Crl.Rev.P. 414/1998 Page 7 of 12 Section 156(3) Cr.P.C., the summoning order dated 14.8.1995 was passed against respondent Nos. 1 to 4, one of whom i.e. respondent No.3 is the FIR maker in FIR No. 195/95.
11. To further appreciate the facts, it would be relevant to take note of the complaint, subject matter of FIR No. 195/95, wherein Parvinder Singh (respondent No.3) has stated as under:-
Bayan Ajaane Palwinder Singh, S/o Kishan Singh, R/o 705A, Rishi Nagar, Raani Bagh, Shakur Basti, Delhi-34, aged 30 years bayan kiya ki main pata uprokt par rehta hoon tatha Railway me naukri karta hoon. Aaj main wa mera bhai Paramjeet Singh jo bhainso ki dairy karta hai tatha doodh bechata hai Awatar Singh, s/o Mohan Singh, R/o 548, Rishi Nagar se doodh ke Rs.2500/- lene gaye thein jab Paramjeet ne Avtaar se paise samay kareeb 5:15 PM par maange to wah ulta aage se gaali galauj karne lag gaya tatha hum ne mana kiya to apne ghar se Kirpan nikal laya tatha bola ki main tumhein paisa deta hoon. Itna kahte hi mere bhai Paramjeet Singh ke pet me talwar kirpan maari. Main Paramjeet Ko lekar foran Krishna Hospital aa gaya jahan mere bhai ka operation ho raha hai. Awtar Singh ke khilaaf kanooni karwahi ki jaaye. Sun liya thik hain"
12. It will also be appropriate to take note of the complaint dated 11.5.1995 lodged by the appellant/petitioner, subject matter of the complaint case bearing No. 18/1/1995. The relevant portion of the complaint is contracted below:-
3. That on 1.4.1995 at about 5.15 P.M. when the complainant Avtar Singh was at home the accused No.1 Kishan Singh along with his three sons namely the accused Nos. 2 to 4, came to his house at WZ-548, Rishi Nagar, Shakurbasti, Delhi and all the four miscreants were armed. They were having lathi, iron pipes while the accused No.1 Kishan Singh was already wearing Kirpan. The said accused persons called the complainant out of the house in a loud voice and as soon as the complainant came out, they all started giving him beatings with their weapons and fists. The Crl.App. 332/1998 & Crl.Rev.P. 414/1998 Page 8 of 12 complainant tried his level best to save himself from the attack and was trapped unaware. In the said process of attack, the accused No.1 Kishan Singh took out his Kirpan and attacked upon the complainant and in the process when the complainant tried to save himself by jumping quickly aside, as a result of the same, the said Kirpan hit Paramjit Singh‟s stomach who was standing behind the complainant. Thus, the said Paramjit Singh (accused No.2) received injury by the Kirpan of his own father. On receiving the injury by the said Paramjit Singh, he fled away from the spot and the remaining accused persons continued giving beatings to the complainant for a few minutes and the complainant received injuries on different parts of his body. Many persons collected at the spot, including the father and wife of the complainant, besides neighbor Mohan Singh and they intervened and saved the situation but while leaving the spot the said remaining 3 accused persons threatened that they would come again very soon with more associates and would eliminate the complainant.
It is further relevant to mention here that during the aforesaid altercation someone from the locality informed to the Police at Phone No.100 to the effect that one person was being beaten by four persons and accordingly the P.C.R. van came there and after seeing the spot when they were just questioning the complainant and other persons at the spot, the police of PP Saraswati Vihar came and they said that the said area does not fall within their jurisdiction and accordingly the police of P.P. Rani Bagh came there and the police persons consisted one ASI Baldev Singh and one Constable and the said Baldev Singh was narrated the incident by the complainant and the other persons present at the spot and also took into possession two iron pipes, lathi, chappals and one „Pagri‟ belonging to the accused persons which they had left at the spot while fleeing from the spot. However, two constables from the Police Post Rani Bagh took the complainant to Din Dayal Upadhyay Hospital, Hari Nagar, Delhi where he was medically examined and he was plastered on the left leg and Crl.App. 332/1998 & Crl.Rev.P. 414/1998 Page 9 of 12 dressing was also done on the right arm and he was brought back to Police Post Rani Bagh and was then taken to P.S. Saraswati Vihar and there he was falsely involved and arrested in case FIR No. 195 of 1995 u/s 307 IPC.
It is also relevant to mention here that the complainant as well as the accused persons namely Kishan Singh and Palvinder Singh are also working in the Diesel Shed, Northern Railway, Shakur Basti, Delhi and there on petty matters, an altercation took place between the complainant and the said Kishan Singh and the said accused Kishan Singh gave the threat to the complainant that he would see the complainant at his residence in the same evening as to how he dared not to obey his instructions in the office. Hence the above-said attack was made by the accused persons upon the complainant as explained above.
4. That about the above-said murderous attack, criminal trespass and criminal intimidation of the accused persons, the father of the complainant sent a report dated 3.4.1995 to the Incharge of Police Post Rani Bagh, Delhi, the copy of which is also attached herewith.
13. In view of the aforesaid, I have no hesitation to hold that the impugned judgment dated 14.8.1998 delivered by the Additional Sessions Judge convicting the appellant/petitioner under Section 307 IPC in Sessions Case No.88/97 and allowing revision petition 1/98 cannot be sustained. As such, I set aside the judgment dated 14.8.1998 and allow the appeal as well as the revision petition with the following directions to the Additional Sessions Judge to whom the case will be marked by the learned District Judge (Rohini):-
(i) The parties to appear before the learned District Judge (Rohini) on 27.08.2009.
Crl.App. 332/1998 & Crl.Rev.P. 414/1998 Page 10 of 12
(ii) The Additional Sessions Judge will decide the Revision petition bearing No.1/98 filed by respondent Nos. 1 to 4 against the summoning order dated 14.8.1995 in Complaint Case No.18/1/95 after hearing the arguments from both the sides and after taking into consideration the record of the complaint case. In case the Additional Sessions Judge does not find favour with the summoning order taking into consideration the record of that case, the trial court may pass appropriate orders and may deliver judgment in Sessions Case No. 88/97. However, if the court of Additional Sessions Judge finds that the summoning order is required to be maintained, then the said court itself will try that case further as a complaint case and will record the evidence of the complainant and his witnesses and thereafter, if charges are made out against respondent nos.1 to 4, will try them in connection with the said complaint and thereafter, will record the statement of respondent Nos. under Section 313 Cr.P.C. and will also give them an opportunity to defence evidence, if any, and will then hear arguments in the said case and then reserve its decision.
(iii) It is thereafter the Additional Sessions Judge will pronounce separate judgments in both the cases.
(iv) It is made clear that while deciding the revision Crl.App. 332/1998 & Crl.Rev.P. 414/1998 Page 11 of 12 petition the Trial Court shall not influence by the evidence which has been recorded in the Police case and vice-versa.
14. TCR, if any, be sent back forthwith along with a copy of this judgment.
MOOL CHAND GARG, J.
JULY 27, 2009 ag/dc Crl.App. 332/1998 & Crl.Rev.P. 414/1998 Page 12 of 12