Allahabad High Court
Arun Kumar Upadhyay & Another vs State Of U.P. & Another on 11 January, 2021
Bench: Alok Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 29
Case :- U/S 482/378/407 No. - 2463 of 2020
Applicant :- Arun Kumar Upadhyay & Another
Opposite Party :- State Of U.P. & Another
Counsel for Applicant :- Km. Vishwa Mohini,Vimal Kumar
Counsel for Opposite Party :- G.A.
Hon'ble Alok Mathur,J.
1. Heard Km. Vishwa Mohini, learned counsel for the applicants as well as learned A.G.A. for the State.
2. By means of the present petition, the petitioners have challenged the charge sheet No.239621 dated 23.4.2016 filed in N.C.R. No.101/2015 under Sections-323/504/506 IPC in Re; State of U.P. Vs. Arun Kumar Upadhyaya and another, pending as Case No.10772/2019 in the court of Additional Civil Judge (J.D.) Room No.22, Pratapgarh along with summoning order dated 17.4.2017.
3. It has been submitted by learned counsel for the applicants that the incident took place on 15.5.2015 wherein it was alleged that opposite party No.2 along with his brother Lal Bahadur Upadyaya and two unknown persons came to to the orchard and started plucking mangoes from the mango orchard of the applicant. On the objection being raised by applicant No.2 there was violence and fight between both the parties in which injuries were sustained by both the sides. With regard to the incident dated 15.5.2015 the applicants had lodged N.C.R. No.97 of 2015. Consequently opposite party No.2 also lodged N.C.R. No.101/2015 in respect of the same incident though the matter was shown to be of 23.5.2015. As per the allegations made in the N.C.R. dated 23.5.2015 it was alleged that on 15.5.2015 at about 4 p.m. the applicants along with one Anand Upadhyay abused opposite party No.2 and questioned him as to how they were plucking the mangoes from the orchard of the applicants though in the said orchard opposite party No.2 is a co-sharer. The applicant along with others beaten him with fists and he was injured.
4. The applicant has drawn the attention of this Court towards the statement of Shiv Bahadur Upadhyay recorded by the police during the investigation according to which only one incident had occurred i.e. on 15.5.2015 and not on 23.5.2015. It has been submitted by the applicants that cognizance has been taken by the Magistrate in both the matters and trial in both the case is being conducted by the same court but the same has not been clubbed together.
5. It has been submitted by learned counsel for the applicants that ends of justice would be met in case both the trials are clubbed together and tried together. In support of his submissions various judgments of Apex Court have been referred to, especially the case of State of M.P. Vs. Mishrilal (dead) & Ors., 2003 (9) SCC 426 where in in paragraphs 7 and 8 it has been held as under:-
"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 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."
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 Nathilal's case (supra). 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 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 the falsehood. Unfortunately, the investigating officer has failed to discharge the obligation, resulting in grave miscarriage of justice."
6. In the present case, a perusal of both the first information reports as annexed by the applicant would reveal that parties in both the cases are the same and taking into account the statements recorded during the investigation of Shiv Bahadur Upadhayay reveals that occurrence is also of the same date.
7. In light of the above, the observations of Supreme Court in the said case of State of M.P. Vs. Mishilal (dead) and others (supra) are clearly attracted and, therefore, in such circumstances trial court should conduct both the trials together.
8. In light of the above, the application is disposed of with direction to the lower court to club case No.10772 of 2019 filed in N.C.R. No.101/2015 lodged by police station Aaspur Devsara, District Pratapgarh along with NCR No.97 of 2015 and be proceeded together with the charge sheet No.239621 dated 23.4.2016.
9. It is expected that the trial in both the matters shall be expedited.
Order Date :- 11.1.2021 (Alok Mathur, J.)
RKM.
