Vijaykumar F. Rathod vs State Of Maharashtra
2006 Latest Caselaw 224 Bom

JUDGMENT

S.P. Kukday, J.

1. Rule. Rule made returnable forthwith with consent of parties.

2. In this revision, the petitioner has impugned the order dated 30-9-2004 passed by Sessions Judge, Jalna, rejecting the application for transfer of R.C.C. No. 494/2002 to the Court of Session for being tried along with Sessions Case No. 56/2003.

3. In nutshell, relevant facts are that on 30-8-2002 at 10.30 a.m. there was a quarrel in open plot in front of house of the petitioner in respect of digging. During the quarrel, the parties inflicted Injuries on their rivals. Therefore, two reports in respect of the same incident came to be filed. On the basis of a report filed by the petitioner, offence has been registered under Sections 324, 323, 504, 506 r/w 34 of the Indian Penal Code. After completion of investigation, charge sheet came to be filed in the Court of JMFC, Ambad being Reg. Cri. Case No. 494/ 2002. From rival party, Sanjay Uttamrao Salve filed a report in respect of the same incident. In the report in addition to the allegations in respect of assault against the petitioner, wife of Kapurchand and others, the complainant also referred to the insults given to him by referring to his caste. On the basis of this complaint, offences punishable under Sections 143, 147, 148, 149, 54, 307 and 506 of IPC came to be registereds. The charge sheet was filed in the Court of JMFC, Ambad. As the offence punishable under Section 307 of IPC is exclusively triable by the Court of Sessions this case came to be committed to the Court of Session and was numbered as Sessions Case No. 56/ 2003, which is pending in the Court of Ist Additional Sessions Judge, Jalna.

4. As the Sessions Case No. 56/2003 and Reg. Criminal Case No. 494/2002 are the counter cases, the petitioner filed Transfer Petition No. 12/2004 in the Court of Session Judge, Jalna, praying for transfer of Regular Criminal Case to the Court of Ist Additional Sessions Judge, who is trying the counter case.

5. Learned Sessions Judge by order dated 30-9-2004 rejected the transfer petition on the ground that there are two sets of witnesses in both the cases and that JMFC, who is having Jurisdiction, cannot be prevented from trying the said offence. Being aggrieved by the said order dated 30-9-2004. the petitioner has filed the present revision.

6. The facts of this case are not disputed. Sessions Case No. 56/2003 as well as Regular Criminal Case No. 494/2002 are in respect of the same incident. As the complaints were lodged by rival parties, two different charge sheets were filed. In one of the cases, allegations are regarding commission of offence which is exclusively triable by the Court of Session. Therefore, said case is committed to the Court of Session. In the counter case, none of the offences registered by police is triable by the Court of Session, thus this case is pending before the Magistrate.

7. It is now well settled that the counter cases are to be tried together to avoid a possibility of conflicting decisions being given in respect of the same incident. To substantiate his contention, learned Counsel for the petitioner has rightly relied upon the ruling of the Apex Court reported in AIR 2001 SC 826 in the matter of Sudhir and Ors. v. State of Madhya Pradesh. In para 8 of the report, it is observed by the Apex Court that:

It is a salutary practice to try and to dispose of together two criminal cases relating to the same Incident." In para 11 of the report, reference is made to the earlier ruling of the Apex Court in the matter of Nathilal v. State of U.P. reported in 1990 Supp SCC 145, in which the procedure, to be followed in such a situation, is laid down by the Apex Court. Relevant observations extracted from the said ruling are:

...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 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 cross case. But both the Judgments must be pronounced by the same learned Judge one after the other.

The point Involved in this case is, therefore, no longer res integra. Learned Sessions Judge did not take into consideration the established legal principles while deciding the transfer petition. The observations of learned Sessions Judge show that he did not wish to deprive the Magistrate from exercising his jurisdiction. However, that is not a correct approach. What is required to be considered is that there should not be two differing judgments in respect of the same controversy. To achieve this object, both the cases are required to be tried by the same Judge. As one of the cases is a Sessions case, it follows that the other case pending in the Court of JMFC will have to be transferred to the Court of Ist Additional Sessions Judge for being tried with the counter case being Sessions Case No. 56/2003, as Sessions Judge has Jurisdiction to try these cases under Section 26 of Cr. P.C. In view of the settled position, the order of Sessions Judge cannot be sustained and deserves to be quashed and set aside.

8. In the result. The Revision Petition is allowed. Rule is made absolute in terms of prayer Clause (c). It is made clear that both the cases shall be decided as per the guidelines issued by the Apex Court in the matter of Nathilal's case (supra).