Karnataka High Court
Dr Sanjeev Kumar Hiremath vs State Of Karnataka on 13 March, 2023
Bench: Mohammad Nawaz
-1-
CRL.P No. 2459 of 2022
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF MARCH, 2023
BEFORE
THE HON'BLE MR JUSTICE MOHAMMAD NAWAZ
CRIMINAL PETITION NO. 2459 OF 2022
BETWEEN:
1. DR SANJEEV KUMAR HIREMATH
AGED ABOUT 48 YEARS
S/O A S HIREMATH
R/O NO 2, 19TH CROSS
13TH MAIN, KRISHAB GARDEN
REVENUE LAYOUT,
BANGALORE-560 098.
...PETITIONER
Digitally signed
by LAKSHMI T
(BY SRI. RAGHAVENDRA K.,ADVOCATE)
Location: High
Court of
Karnataka AND:
1. STATE OF KARNATAKA
BY STATION HOUSE OFFICER
JAYANAGAR POLICE STATION
BANGALORE-560 007.
REP BY STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
BENGALURU-560 001.
2. DR RAGHAVENDRA
S/O VIJAY KUAMR
MOJOR IN AGE
R/O NO 4, TYPE AB
DOCTORS QUARTERS
KIDWAI MEMORIAL INSTITUTE OF ONCOLOGY
HOSUR ROAD
BANGALORE-560 027.
...RESPONDENTS
-2-
CRL.P No. 2459 of 2022
(BY SRI.K.NAGESHWARAPPA, HCGP FOR R1; SRI.
SHRIKANTH BADARADINNI, ADVOCATE FOR R2)
THIS CRL.P IS FILED U/S 407 CR.PC PRAYING TO
TRANSFER THE CASE IN C.C.NO.23250/2018 PRESENTLY
PENDING ON THE FILE OF THE II A.C.M.M BENGALURU
CITY TO THE COURT OF THE LXX ADDL.CITY CIVIL AND
SESSIONS JUDGE BENGALURU CITY TO BE TRIED ALONG
WITH THE CASE IN SPL.C.C.NO.35/2018 PENDING ON THE
FILE OF THE SAID COURT FOR BEING CLUBBED AND
TRIED TOGETHER.
THIS PETITION, COMING ON FOR ADMISSION, THIS
DAY, THE COURT MADE THE FOLLOWING:
JUDGMENT
In this petition filed under section 407 of Cr.P.C.,
petitioner has prayed to transfer C.C.No.23250/2018
pending on the file of the II Additional Chief Metropolitan
Magistrate, Bengaluru City to the Court of LXX Additional
City Civil and Sessions Judge, Bengaluru City and to try
the said case along with Spl C.C.No.35/2018.
2. Petitioner is the first informant in Crime
No.200/2017 registered at Jayanagar Police Station
against one Raghavendra, in respect of an incident which
took place at about 12.30 p.m. on 10.07.2017, which
culminated in filing of charge-sheet against the said
CRL.P No. 2459 of 2022
accused for offences punishable under Section 341, 324,
504 and 506 of IPC. The offences alleged being triable by
the learned Magistrate, the said case numbered as
C.C.No.23250/2018 is pending on the file of the II
Additional Chief Metropolitan Magistrate, Bengaluru City.
3. It is not in dispute that with regard to the very
same incident which took place on 10.07.2017 a counter
complaint was lodged by the respondent herein against
the petitioner and his father, which was registered in
Crime No.201/2017 of Jayanagar Police Station. On
completion of investigation the police have filed charge-
sheet against the petitioner and his father for offences
punishable under Sections 323, 324 of IPC and Section
3(1)(r), 3(1)(s) of the SC/ST (Prevention of Atrocities)
Act,1989 (SC/ST Act, for short). Since the offences under
the SC/ST Act are triable by the Special Court, the charge-
sheet was filed before the Special Court, numbered as
Special Case No.35/018 and the same is pending before
CRL.P No. 2459 of 2022
the LXX Additional City Civil and Sessions Judge,
Bengaluru City.
4. Since both the cases arise out of a case and
counter case, the petitioner herein preferred a petition
under Section 407 of Cr.P.C. before this Court in criminal
petition No.8468/2019. It is submitted by the learned
counsel for petitioner that the said petition was withdrawn
with a liberty to the petitioner to approach the learned
Sessions Judge with an appropriate application.
Thereafter, the petitioner approached the Sessions Court
under Section 408 of Cr.P.C. in Criminal Misc
No.4647/2021. The said petition was dismissed vide
impugned order dated 19.11.2021.
5. One of the grounds for dismissal of the petition
by the learned Sessions Judge was that Section 408(1) of
Cr.P.C., only gives power to the Sessions Judge to transfer
a case pending in one criminal Court to another criminal
Court in his Sessions Division, but it does not give power
CRL.P No. 2459 of 2022
to Sessions Court to call for a case to that Court from the
Magistrate Court without formal committal.
6. It is the contention of the learned counsel for
respondent that the petitioner ought to have made an
application under Section 323 of Cr.P.C., for committal of
the case now pending before the learned Magistrate to the
Special Court. As rightly contended by the learned
counsel for the petitioner, the said provision gives power
to the learned Magistrate to commit a case when the
learned Magistrate is of the opinion that the said case is
exclusively triable by the Court of Sessions. The case
which is now pending before the learned Magistrate is
triable by himself and not by the learned Sessions Judge.
7. In the case on hand, it is not in dispute that
both the cases, one which is pending before the learned
Magistrate and one which is pending before the Special
Court arises out of a case and counter case. In such a
situation, it is useful to refer to the decision of the Hon'ble
Apex Court in the case of 'State of M.P. vs. Mishrilal and
CRL.P No. 2459 of 2022
others' reported in (2003) 9 Supreme Court Cases 426
relied upon by the learned counsel for petitioner. In the
said decision, the Apex Court has referred to a decision in
Nathi Lal vs. State of U.P. reported in 1990 Supp SCC 145,
wherein it has been held as under:
"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 the
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
CRL.P No. 2459 of 2022
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. The above settled principles of law in deciding
the case and counter case has not been disputed by the
learned counsel for respondent. In plethora of judgments
it is held that a case and a counter case have to be tried
together by the same court irrespective of the nature of
offences involved. The rationale behind this is to avoid
conflicting judgments over the same incident, as held in
the above noted decision. That being so, the prayer made
by the learned counsel for the petitioner in this petition
requires to be allowed. Hence, the following:
ORDER
The petition is allowed.
CRL.P No. 2459 of 2022
The case pending in C.C.No.23250/2018 on the file
of the Court of II Additional Chief Metropolitan Magistrate,
Bengaluru City is hereby transferred to the Court of LXX
Additional City Civil and Sessions Judge, Bengaluru City.
The learned II Additional Chief Metropolitan
Magistrate, Bengaluru City is directed to commit
C.C.No.23250/2018 pending on its file to the Court of LXX
Additional City Civil and Sessions Judge, Bengaluru City.
The learned Sessions Judge/Special Judge shall try
both the cases, in accordance with law.
SD/-
JUDGE
HB
