Sheetla Prasad vs The State Of U.P.Through Its ...
2017 Latest Caselaw 7454 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

  								A.F.R.
 
Court No. - 9
 
Case :- U/S 482/378/407 No. - 3376 of 2008
 
Applicant :- Sheetla Prasad
 
Opposite Party :- The State Of U.P.Through Its Secretary Home,Lucknow
 
Counsel for Applicant :- N.P. Ojha
 
Counsel for Opposite Party :- Govt.Advocate
 

 
Hon'ble Ajai Lamba,J.

1.  This petition has been filed under Section 482 CrPC in challenge to order dated 6.5.2008, passed by Addl. Sessions Judge-I/Fast Track Court No.5, Gonda in Sessions Trial No.245 of 1987 State versus Raj Narayan Shukla and others in Crime No.57/1987 under Sections 147, 148, 149, 323, 325, 302 I.P.C., P.S. Tarabganj, district Gonda, placed on record as Annexure No.1.

2.  A reference to pleadings indicates that the petitioner along with others is being prosecuted in Crime No.57 of 1987 under Sections 147, 148, 149, 323, 325, 302 I.P.C., P.S. Tarabganj, district Gonda vide Sessions Trial No.245 of 1987 titled "State versus Raj Narayan Shukla and others in the Court of Addl. Sessions Judge-I/Fast Track Court No.5, Gonda.

It further appears that the petitioner had initiated a cross case bearing Crime No.57A of 1987 under Sections 325, 323, 504, 506 I.P.C. in police station Tarabganj, district Gonda against six accused namely Arun Kumar, Devendra Nath, Radhey Shyam, Harish Chander, Kailash Nath and Haushila Prasad. The investigating officer submitted charge-sheet in the cross-case lodged by the petitioner against the accused except Arun Kumar and Devendra Nath.  The case is being tried as Sessions Trial No.227 of 1993 State versus Radhey Shyam and others. 

It further appears that after recording statements of injured witnesses in the case initiated at the instance of the petitioner [Session Trial No.227 of 1993 (supra)], an application under Section 319 CrPC was filed which was allowed by the trial Court vide order dated 17.3.2008.  Consequently, Arun Kumar and Devendra Nath were summoned as additional accused to stand trial in S.T.No.227 of 1993 (supra) under Sections 325, 323, 504, 506 I.P.C.  Arun Kumar and Devendra Nath aggrieved by the order of summoning under Section 319 CrPC filed Criminal Misc. Case No.1472 of 2008 in the High Court titled, "Arun Kumar Shukla and another versus State of U.P. and another.  The proceedings in S.T. No.227 of 1993 were stayed vide order dated 28.4.2008 (Annxure-2).  The said petitioners prayed for stay in the cross case [Sessions Trial No.245 of 1987 (supra)] which was refused by the High Court vide order, Annexure No.2.

3. Perusal of the impugned order indicates that the petitioner made an application before the trial Court for stay of further proceedings in S.T. No.245 of 1987(supra).  The application has been dismissed vide impugned order dated 6.5.2008 on the ground that the Hon'ble High Court has granted stay only in the cross case, however, stay of proceedings had been denied specifically by the High Court in the case in hand. 

It appears to be the contention of the petitioner that because it is a cross case, therefore, proceedings are required to be stayed in both the cases so that the both the trials can go on together.

4.  It appears that on 4.5.2010, none appeared on behalf of the petitioner.  Consequently, the petition was dismissed for want of prosecution.  Subsequently, an application was filed for recall of order dated 4.5.2010, vide Application No.116672 of 2013 which was allowed and the case has been restored to its original number.

5. Yet again none has appeared on behalf of the petitioner.

Be that as it may, I have gone through the impugned order and have considered the law on the issue.

6.  Law in regard to trial of cross cases has been settled by Hon'ble Supreme Court of India in Sudhir versus State of M.P. (2001)2 SCC 688.  The following has been held in Sudhir's case(supra) (relevant portion) :

"11. In fact, many High Courts have reiterated the need to follow the said practice as a necessary legal requirement for preventing conflicting decisions regarding one incident. This Court has given its approval to the said practice in Nathi Lal and others v. State of U.P. and another, 1990 Supp SCC 145. The procedure to be followed in such a situation has been succinctly delineated in the said decision and it can be extracted here:

"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 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 or arguments urged in the cross case. But both the judgments must be pronounced by the same learned Judge one after the other."

12. How to implement the said scheme in a situation where one of the two cases (relating to the same incident) is charge-sheeted or complained of, involves offence or offences 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 no escape from committing the case to the Sessions Court as provided in Section 209 of the Code. Once the said case is committed to the Sessions Court, thereafter it is governed by the provisions subsumed in Chapter XVIII of the Code. 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 Sessions, albeit none of the offences involved therein is exclusively triable by the Sessions Court. Section 323 is incorporated in the Code to meet similar cases also. That Section reads thus :

"If, in any inquiry into an offence or 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. The above section 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 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. We have already adverted to the sturdy reasons why it should be so. Hence the magistrate can exercise the special power conferred on him by virtue of Section 323 of the Code 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 though the stream channelised by the provisions contained in Chapter XVIII."

(emphasised by me)

7. From the judgment rendered by Hon'ble Supreme Court of India in Sudhir's case (supra), it becomes evident that so as to prevent conflicting decisions regarding one incident in cross cases, the trial Judge must try both the cases separately. After recording of evidence in one case is completed, the trial Judge may hear arguments but he must reserve the judgment. Thereafter, he must proceed to hear the cross case and after recording all the evidences, he must hear the arguments but reserve the judgment in that case. The same trial Judge must thereafter dispose of the matters by two separate judgments.

In deciding each of the cases, the Court can rely only on the incidents 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. That is to say that 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 in the cross case; but both the judgments must be pronounced by the same Judge one after the other.

The spirit of deciding cross cases separately would be better served if preferably different public prosecutors prosecute the cross cases.

It has also been held that where one of the two cases relating to the same incident is charge-sheeted or complained of involves offence or offences exclusively tried by a Court of Sessions, but none of the offences involved in the other case is exclusively triable by the Court of Sessions, the Magistrate before whom the former case reaches would commit the case to the Sessions Court as mandated under Section 209 CrPC. Though the next/other case cannot be committed in accordance with Section 209 of the Code, the Magistrate has the power to commit the case to the Court of Sessions while exercising jurisdiction under Section 323 CrPC. In such circumstances, it is required of the Magistrate to commit the cross case also to the Court of Sessions while exercising jurisdiction under Section 323 CrPC, because both the cases arise out of the same/common incident.

Although the commitment of the cross cases under Sections 209 and 323 CrPC might be through different channels but once they are committed, their subsequent flow/trial would be stream-channelised by the provisions contained in Chapter XVIII of the Code of Criminal Procedure.

8. This being the law and procedure for trial of cross cases, I find no infirmity in the order passed by the trial Court in not staying the proceedings in the present case.

Cross cases are to be tried separately.  Evidence(s) of one case cannot be read in the other.  Evidently, there was no stay granted by the High Court in the present case.  In the facts and circumstances of the case, I find no illegality in passing of the impugned order.

This Court trusts that the trial Court would proceed with the trial of the cross cases as per procedure detailed above.

9. In view of the above, finding no illegality in the order passed by the trial Court, I have no reason to invoke the power under Section 482 CrPC to quash the impugned order.

10. Petition is dismissed.

Let a copy of this order be forwarded to the trial Court forthwith so that proper procedure is followed and the trial in the cross cases can go on.

Order Date :- 30.11.2017

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