Jyoti Pitliya vs The State Of Madhya Pradesh
2022 Latest Caselaw 960 MP

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                                                       M.Cr.C. No. 15585/2021



HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE
    (SINGLE BENCH : HON. Mr. JUSTICE VIVEK RUSIA)

                       M.Cr.C. No. 15585 of 2021
Jyoti Pitliya W/o. Abhay Pitliya,
Aged 39 years, Occ. Household,
R/o. Bichlavaas Ramdeo Ji Ki Ghati,
Ratlam, District Ratlam.                      PETITIONER.

                                    Versus
   1.      State of M.P. Through P.S. Manak Chowk, Ratlam, District
           Ratlam.
   2.      Goverdhanlal Chowhan S/o. Kasturchand,
           Aged 63 years, Occ. Business, R/o. 126, Naharpura, Ratlam.
   3.      Manju Chouhan W/o. Goverdhanlal,
           Aged 59 years, Occ. Household,
           R/o. 126, Naharpura, Ratlam.
   4.      Vimal Chouhan S/o. Goverdhanlal,
           Aged 27 years, Occ. Nil,
           R/o. 126, Naharpura, Ratlam.
   5.      Harish Chouhan S/o. Goverdhanlal,
           Aged 42 years, Occ. Auto Garage
           R/o. 126, Naharpura, Ratlam.
                                              RESPONDENTS.

Date: 20.01.2022 :
        Shri Sanjay Sharma, learned counsel for the petitioner.
        Ms. Archana Maheshwari, learned Panel Advocate for
        respondent/State.
        Shri Ram Krishna Shastri, learned counsel for respondents No.2
        to 5.
        Heard the learned counsel for the parties.
                                ORDER

The petitioner has filed the present petition u/s. 482 of the Cr.P.C. being aggrieved by the order dated 9.3.2021 passed by Sessions Judge, Ratlam in M.J.Cr. No.120/2021 whereby the application filed u/s. 408(2) of the Cr.P.C. seeking to transfer the proceedings of the Criminal Case No. 802/2019 registered at Crime No.139/2019 u/s. 323, 294/34 from the Court Judicial Magistrate, First Class, Ratlam to the Court of 5th Addl. Sessions Judge, Ratlam, has been rejected.

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M.Cr.C. No. 15585/2021

The facts of the case, in short, are as under :

1. Respondent No.5 - Harish has lodged the FIR on 25.3.2019 at 22.31 hours at Police Station Manak Chowk, Ratlam alleging that he resides at 126, Naharpura, Ratlam and runs an Auto Garage. His shop and the house are at the same place. Abhay Pitliya is the owner of his neighbouring house which is under construction. On 25.3.2019 at 6.00 pm. his father Govardhan was standing outside the house and at that time, Abhay Pitliya came there and started quarrelling in respect of parking the vehicles in front of his house. He has started abusing Goverdhan by filthy language and with an intention to kill him, he stabbed twice by means of a knife on the stomach and hands due to which he fell down. He tried to save his father and also tried to catch Abhay Pitliya but with an intention to kill him also he stabbed him by means of the knife on the right side of the chest due to which bleeding started and he also fell. His brother Pramod came there to save both of them, but Abhay Pitliya has also assaulted him with a knife and he also fell down. His relative Sunil Rathore came there to intervene, then Abhay Pitliya fled away from the spot. The local residents have witnessed the incident. The police have registered the FIR u/s. 307 and 294 of the IPC against Abhay Pitliya i.e. husband of this applicant. The police visited the spot and at 22.50 hours, prepared the spot map, which is reproduced below :

In the aforesaid spot map, the place of incident is marked as 'X' in a

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circle in front of the house of the complainant and the house marked as 'B' is of Abhay Pitliya. In the FIR also the place of incident is mentioned as "in front of the house of the complainant" situated at Naharpura, Ratlam.

2. The applicant who is the Wife of Abhay Pitliya also lodged the FIR which is registered at Crime No.139/2019 at Police Station Manak Chowk, Ratlam on 26.3.2019 at 1.36 hours. The above information was received at the Police Station 00.55 hours. She lodged the FIR against the present respondents - Govardhanlal, Harish, Vimal, Manju Chouhan that her husband went to see the construction of his house at Naharpura where a dispute occurred on the issue of the parking of the vehicles. The respondent - Govardhanlal came with an iron rod and others with the stick and assaulted her husband. He has suffered an injury on the head. He was taken to the hospital. She was called to the hospital where her husband narrated the entire incident. In this FIR, the place of incident is stated as "Gambhir Cycle Wale Ke Paas, Naharpura, Ratlam" and the distance is mentioned as 4 Km. away from the Police Station. Now the Criminal Case No. 802/2019 is pending against the respondents.

3. Since the offence u/s. 307 of IPC is triable by Sessions Court, therefore, the trial of Crime No.137/2019 has been committed to the Sessions Court which is pending as S.T. No.87/2019 in the Court of 5 th Addl. Sessions Judge, Ratlam. As the offence u/s. 323, 294/34 is triable by Magistrate, therefore, the trial is pending before the Judicial Magistrate, First Class, Ratlam as the Criminal Case No. 802/2019.

4. The present applicant has filed an application u/s. 408(2) of the Cr.P.C. before the learned Sessions Judge seeking transfer of proceedings of Trial No. (Crime No.139/2019) to the Court of 5 th Addl. Sessions Judge, Ratlam for trying together with ST No.87/2019 (Crime No.137/2019). The aforesaid application was opposed by the respondents who are accused in the said trial. Vide order dated 9.3.2021, learned Sessions Judge has dismissed the application on the

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ground that in both the cases, the date of the incident is different; time is different; place of incident is different; the distance of the placeof crime from the Police Station is different, therefore, both the cases cannot be treated as counter/cross-case of each other, hence cannot be tried together. Hence, the present petition u/s. 482 of the Cr.P.C. before this Court.

5. Shri Sanjay Sharma, learned counsel for the applicant, submits that after filing the present petition, the injured - Govardhan has been examined in ST No.87/2019 as P.W.3 and in his cross-examination, he has admitted that the accused Abhay Pitliya is his neighbour and the incident took place in front of his house. He has also admitted that the distance of Police Station Manak Chowk, Ratlam from his house is the same as from the house of the accused. In Para 9 of his examination, he has admitted that in respect of the same incident, the wife of the accused - Jyoti has made a complaint against him and his two sons. Learned counsel for the applicant further submits that by mistake the distance has wrongly been mentioned as 4 Kms. in the FIR registered at Crime No.139/2019, whereas the spot map prepared by the Investigating Officer as well as in the map prepared by the Tehsildar, the place of incident and the time is the same, therefore, in view of the law laid down by the Apex Court in the case of Nathilal & others V/s. State of U.P. & another : 1990 (Supp) SCC 145, both the trials are liable to be tried together.

6. On the other hand, Shri Ramkrishna Shastri, learned counsel appearing for respondents No.2 to 5 opposes the aforesaid by submitting that in both the FIRs the date and timing of the incident are different. The place of occurrence is also different, therefore, both the cases cannot be treated as cross or counter cases to each other, hence both the trials are pending before the competent court and the same are not liable to be clubbed together.

Learned Govt. Advocate has argued in support of the impugned order.

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Harish S/o. Govardhan has lodged the FIR contending that Abhay Pitliya's house is in his neighbourhood since a vehicle was parked in front of his house and due to which he hasstarted quarrelling with his father and near about at 6.00 pm. he assaulted his father by means of a knife. He assaulted him and his brother also by means of a knife. The said incident took place at 18.00 hours and the FIR was lodged on 25.3.2019 at 22.31 hours. The place of incident is mentioned as "in front of the house of the complainant, Naharpura Ratlam". The map prepared by the Investigating Officer and the Tehsildar also reveals that both the houses of Goverdhan and Abhay Pitliya are neighbouring houses and the incident took place in front of their house. The wife of Abhay Pitliya has also lodged the FIR registered at Crime No. 139/2019 stating that her husband went to see the construction of his house situated in Naharpura, Ratlam and the dispute arose with Goverdhan and his two sons in respect of parking of the vehicle and they assaulted her husband by means of iron rod and stick. The place of the incident is mentioned as "Gambhir Cycle wale Ke Paas, Naharpura Ratlam". In the map prepared in Crime No.139/2019, Gambhir Cycle shop is shown next to the house of Abhay Pitliya and the neighbouring shop is mentioned as "Harish Auto Deal". The map prepared in Crime No.139/2019 is reproduced below :

At the request of Investigating Officer, the Tehsildar also prepared the spot map, which is reproduced below :

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M.Cr.C. No. 15585/2021

From the contents of both the FIRs, it is apparent that both the crime said to have taken place in front of the house of Abhay Pitliya and Goverdhan at Naharpura . Since the wife of Abhay Pitliya - Jyoti was not on the spot at the time of the incident, therefore, she was not knowing the exact timing hence probably she has mentioned the time of crime at 18.30 hours in the FIR, but the information received in the Police Station in the midnight of 25.3.2019 i.e. 00.55 hours of 26.3.2019. It is clear from the aforesaid that both the incidents said to have taken place at the same time, at the same place on an issue of parking. Hence, the law laid down by the Apex Court in the case of State of M.P. V/s. Mishrilal (Dead) & others (Cr. Appeal No.489 of 1996 decided on 2.4.2003) applies to the present case. The relevant part of the aforesaid judgment is reproduced below :

"CROSS CASES BE TRIED TOGETHER Undisputedly, accused Mishrilal lodged the report to the police vide Ex.D-8 over the same incident happened on 5.3.1987, in which he had clearly stated the injuries were sustained by him and his son Madhusudan at the hands of prosecution party. It is also not disputed that on the strength of the complaint lodged by Mishriulal, investigation was also carried out and challan was filed namely crime case no.52/87 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 an aggressor. This Court in Nathilal Vs. State of U.P. 1990 (Supp.) SCC 145, pointed out the procedure to be followed by the Trial Court in

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the event of cross cases. It was observed thus:-

"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."

In view of the above, this M.Cr.C. filed u/s. 482 of Cr.P.C. is allowed and the learned Sessions Judge is directed to pass an appropriate order for transferring the Criminal Case No. 802/2019 to the Court of 5th Addl. Sessions Judge, Ratlam where the ST No.87/2019 is pending. Both the cases shall be tried together as per the procedure enumerated in the case of Nathilal (supra).

With the aforesaid, this M.Cr.C. stands allowed.

( VIVEK RUSIA ) JUDGE Alok/-

ALOK Digitally signed by ALOK GARGAV DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH INDORE, ou=JUDICIAL, postalCode=452001, st=Madhya Pradesh, 2.5.4.20=eae18b7018e4245a54c74948bb27999d7e052526864065 b20b27a5804a3e1fea,

GARGAV pseudonym=7CDEDE27CC58A5C0E24DE6046DC50DE017D631F3, serialNumber=9995A79B765CF420033A1CBAAFF5461F718D618B A2FDCA70E412F27FFE6E8CB0, cn=ALOK GARGAV Date: 2022.01.24 17:10:04 +05'30'