Avtar Singh vs The State (Nct Of Delhi)
2009 Latest Caselaw 2833 Del

*          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

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

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.

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

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

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

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

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

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

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.

(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

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