Madhya Pradesh High Court
Ghanshyam Soni vs Smt Rekha Kushwah on 17 May, 2025
Author: Anil Verma
Bench: Anil Verma
NEUTRAL CITATION NO. 2025:MPHC-GWL:11223
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IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ANIL VERMA
ON THE 17th OF MAY, 2025
MISC. CRIMINAL CASE No. 3811 of 2025
GHANSHYAM SONI AND OTHERS
Versus
SMT REKHA KUSHWAH AND OTHERS
Appearance:
Shri Prem Singh Bhadouria with Shri Trishant Mishra - Advocate for
the petitioner.
Shri Vijay Sundaram - PP for the respondent/State.
ORDER
1. The instant petition has been preferred under Section 528 of the
BNSS assailing the order dated 15.01.2025 passed by First Additional
Sessions Judge, Gohad District Bhind in Case No.34/2024 Criminal Revision
whereby order dated 24.09.2024 passed by Judicial Magistrate First Class,
Gohad District Bhind in case No. 142/2023 has been affirmed.
2. Brief facts of the case are that on 12.01.2023 at about 9.30 am when
complainant Rekha Kushwah was dusting her house, at that time, the present
petitioners/accused persons came there and asked about Heeralal. When the
complainant answered them that Heeralal/her husband is not at home, then
the accused persons started hurling abuse in filthy language and when the
complainant objected abusing, them the accused persons started beating her
with wooden sticks and kick and fists. Due to which the complainant
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sustained injuries. When Heeralal, Hem Singh and Ramnath came for
intervening, the accused persons threatened them of dire consequences. On
the basis of the FIR lodged by the complainant Rekha Kushwah, offence
bearing crime No. 10/2023 under Section 294, 323/34 and 506 of IPC was
registered against the petitioners and after investigation charge-sheet has
been filed.
3. Learned counsel for petitioner contended that FIR bearing Crime
No. 10/2023 was registered at PS Mhow District Bhind for the offence under
Section 294, 323/34 and 506 of IPC. Petitioner Ghanshyam Soni also lodged
an FIR against Heerlal, Ramnath and Dharmendra and on the basis of his
report offence bearing Crime No. 11/2023 under Sections 294, 323, 506, 34,
324, 325 and 326 has been registered against the opponent party which has
been committed to the Court of Sessions, Bhind. Case registered on the basis
of the Crime No. 10/2023 at PS Mhow has also been committed to Court of
Session being treated as a cross case. But, place of incident, spot map, cause
of action and time of incident was not similar in both the cases, therefore,
both the cases cannot be treated as cross cases. Therefore, both the courts
below have committed grave error in considering the both the cases as cross
cases. Hence, he prays that impugned orders passed by both the courts below
be set aside.
4 . Per contra, learned counsel for the respondent/State opposes the
prayer and prayed for its rejection by submitting that both the cases are
related to the same parties and the whole series of the act is connected
together with the same transaction, therefore, they should be tried by the
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same Court and there is no illegality and perversity in the impugned orders
passed by both the courts below.
5. Both the parties are heard and perused the FIR of both the cases.
6. From perusal of the FIRs, it appears that the parties of both the
cases are almost similar and first offence bearing crime No. 10/2023 took
place at about 9.30 am and the subsequent offence bearing crime No.
11/2023 took place at about 10.00 on the same day. Although the places of
the incidents is not similar in both the cases but both the places of incident
are adjacent to each other. It is a salutary practice that when the two criminal
cases related with the same incident, they should be tried and disposed of by
the same court by pronouncing judgements on the same date. Such two
different versions of the same incident resulting in two criminal cases are
compendiously called "case and counter-case or cross-case".
7. The Hon'ble Apex Court in the case of Sudhir and others Vs. State
of Madhya Pradesh (2001) 2 SCC 688.
12. How to implement the said scheme in a situation where one of
the two cases (relating to the same incident) is charge-sheeted or
complained of, involves offences or offence exclusively triable by
a Court of Sessions, but none of the offences involved in the other
case is exclusively triable by the Sessions Court. The magistrate
before whom the former case reaches has no escape from
committing the case to the Sessions Court as provided in Section
209 of the Code. Once the said case is committed to the Sessions
Court, thereafter it is governed by the provisions subsumed in
Chapter XVIII of the Code. Though, the next case cannot be
committed in accordance with Section 209 of the Code, the
magistrate has, nevertheless, power to commit the case to the court
of Sessions, albeit none of the offences involved therein is
exclusively triable by the Sessions Court. Section 323 is
incorporated in the Code to meet similar cases also. That section
reads thus:
"If, in any inquiry into an offence or a trial before a Magistrate,
it appears to him at any stage of the proceedings before signing
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judgment that the case is one which ought to be tried by the Court
of Session, he shall commit it to that Court under the provisions
hereinbefore contained and thereupon the provisions of chapter
XVIII shall apply to the commitment so made."
13. The above section does not make an inroad into Section
209 because the former is intended to cover cases to
which Section 209 does not apply. When a magistrate has
committed a case on account of his legislative compulsion
b y Section 209, its cross case, having no offence exclusively
triable by the Sessions Court, must appear to the magistrate as one
which ought to be tried by the same Court of Sessions. We have
already adverted to the sturdy reasons why it should be so. Hence
the magistrate can exercise the special power conferred on him by
virtue of Section 323 of the Code when he commits the cross case
also to the Court of Sessions. Commitment under Section
209 and 323 might be through two different channels, but once
they are committed their subsequent flow could only be through
the stream channelised by the provisions contained in Chapter
XVIII.
8. The Hon'ble Apex Court in the case of State of Madhya Pradesh Vs.
Mishrilal (Dead) and others (2003) 9 SCC 426 has held that " The cross-cases
should be tried by the same court irrespective of the nature of the offence
involved. The rationale behind this is to avoid the conflicting judgements
over the same incident because if cross-cases are allowed to be tried by two
courts separately, there is likelihood of conflicting judgements."
9. On the basis of the aforesaid discussion, this Court is of the
considered opinion that both the aforesaid cases appear to the counter cases
and the cross-cases. One of the offences is triable by the Sessions Court,
therefore, the second case which is even triable by the JMFC, should also be
committed to the Court of Sessions.
10. Therefore, this Court is of the considered opinion that both the
impugned orders passed by the trial court as well as the revisional court are
just and proper and do not suffer from illegality or perversity. Therefore, no
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case is made out for interference in the impugned orders.
11. Hence, this petition devoid of merit and substance, is hereby
dismissed.
(ANIL VERMA)
JUDGE
Vishal
