Punjab-Haryana High Court
Vicky And Others vs State Of Punjab And Another on 26 September, 2024
Author: Anoop Chitkara
Bench: Anoop Chitkara
Neutral Citation No:=2024:PHHC:128132
1
CRM-M-32137-2019
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M-32137-2019
Reserved on: 04.09.2024
Pronounced on: 26.09.2024
Vicky and others ...Petitioners
Versus
State of Punjab and another ...Respondents
CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA
Present: Mr. Vipin Mahajan, Advocate
for the petitioners.
Mr. Jasjit Singh, D.A.G., Punjab.
Mr. Ashok Saini, Advocate
for respondent No.2.
****
ANOOP CHITKARA, J.
Criminal 02/10.02.2016 titled "Rohit Suri vs Surinder Kumar @ Toni and
Complaint others"
No.
1. Complaining of a violation of Section 210 CrPC, 1973, in the orders passed by the
trial Court and the Additional Sessions Judge, the complainant has come up before this
court under Section 482 of the Code of Criminal Procedure, 1973 [CrPC].
2. I have heard counsel for the parties and gone through the record, and its analysis
would lead to the following outcome.
3. S. 210 of CrPC, 1973, reads as follows:
210. Procedure to be followed when there is a complaint case
and police investigation in respect of the same offence.--(1)
When in a case instituted otherwise than on a police report
(hereinafter referred to as a complaint case), it is made to appear to
the Magistrate, during the course of the inquiry or trial held by
him, that an investigation by the police is in progress in relation to
the offence which is the subject-matter of the inquiry or trial held
by him, the Magistrate shall stay the proceedings of such inquiry or
trial and call for a report on the matter from the police officer
conducting the investigation.
(2) If a report is made by the investigating police officer under
section 173 and on such report cognizance of any offence is taken
by the Magistrate against any person who is an accused in the
complaint case, the Magistrate shall inquire into or try together the
complaint case and the case arising out of the police report as if
both the cases were instituted on a police report.
(3) If the police report does not relate to any accused in the
complaint case or if the Magistrate does not take cognizance of any
offence on the police report, he shall proceed with the inquiry or
1 of 8
Neutral Citation No:=2024:PHHC:128132
CRM-M-32137-2019
trial, which was stayed by him, in accordance with the provisions
of this Code.
4. Section 210(2) CrPC 1973 states that when a police report has been filed under
Section 173 CrPC and on such police report, the Magistrate has taken cognizance against
an accused, who is also an accused in the complaint case, then both the complaint case as
well as the police report should be tried together.
5. Section 210(3) CrPC 1973 states that, however, if the police report does not relate
to any accused in the complaint case or if the Magistrate has not taken cognizance of the
offense in the police report, then he shall proceed with the trial in the complaint case,
which he earlier stayed.
6. The spirit of Section 210 of CrPC is that when a complaint case has been
instituted based on the statement of the victim/ complainant, on whose statement an FIR
has also been registered, and the Magistrate is made aware of an investigation by the
police relating to the offense, which is the subject matter of the inquiry or trial in the
complaint case, the Magistrate shall stay such inquiry or trial and call for the police report
regarding such investigation.
7. A cumulative reading of Section 210 CrPC 1973 clarifies that if any person has
filed a complaint case regarding the same incident and offense, a police investigation is
also going on against the same accused. The Magistrate proceeding in the complaint case
must call for the police report about their investigation. If such a report points out
towards the same accused for the same offense in FIR, then the Magistrate must club the
complaint as well as the police report, and if not, then must resume the proceedings in the
complaint case.
8. The facts of the case are to be tested in the light of the above legal position.
9. The petitioner had levelled allegations against Krishan, Baldev Suri, his two
sons, and a driver, who had abused and threatened them and also had brought weapons
from their shops. Rahul hit the complainant with the Datar, and he brought his hand
forward in defence; as such, the datar hit the little finger, and after that, Rahul again
attacked him, which hit the middle finger. Subsequently, Krishan and Baldev Suri
attacked him with a baseball bat, which hit the knee of the left leg. Subsequently, Vicky
attacked them with his kirpan, and he brought forward his right arm and the kirpan hit on
the wrist of the right arm. Based on such allegations, an investigation was conducted, and
the prosecution was launched against Vicky, Suresh Kumar, Gagandeep, and Surender.
Vide order dated 02.03.2016, the charges were framed against all four accused for the
commission of an offense punishable under Section 325, 324, 323, and 506 IPC, all read
with 34 IPC.
10. Before the passing of the order of charges on 02.03.2016, respondent No.2 filed a
complaint against Vicky, the informant/victim in the FIR, and six other persons under
Section 307, 452, 420, 425, 354, 323 IPC.
11. In the said complaint, the complainant's statement (PW2) was recorded on
22.05.2017. On 29.01.2018, when the said complaint was fixed for an order on
2 of 8
Neutral Citation No:=2024:PHHC:128132
CRM-M-32137-2019
summoning the accused, the Court observed that a cross-case pertaining to the same
occurrence was pending in the Court and fixed on the same date. The Court observed that
the facts in the complaint and the State's case are related to the same occurrence. After
considering the provision of Section 210 CrPC and referring to judicial precedent, the
concerned Judicial Magistrate, although de-clubbed the complaint case with the police
case, but dismissed the complaint against ASI Saminder Singh for lack of sufficient
evidence.
12. A perusal of the order mentions that it was the same occurrence, which had
resulted in the registration of FIR and the filing of the complaint, and the offense in
question was the subject matter of the same inquiry, which was before the Judicial
Magistrate. Subsequently, an application was filed for committal of the case under
Section 307 IPC before the appropriate Court. However, vide order dated 15.02.2018, the
concerned Judicial Magistrate Ist Class did not find any evidence for the commission of
an offense under Section 307 IPC and, as such, dismissed the application for committal
the complaint case not being triable by the Sessions Court of Sessions.
13. Feeling aggrieved, the complainant filed a criminal revision petition before the
Sessions Court. Vide the impugned order dated 24.04.2019, the concerned Sessions
Judge, in a detailed and well-reasoned judgment, partly allowed the application and
observed that the cross-version of the case could not have been clubbed and that both
cases had to be tried separately.
14. Feeling aggrieved for non-clubbing, the accused filed the present petition before
this Court.
15. The short question involved in the present petition is whether the complaint case
and the police case could have been clubbed together or not. As per the Judicial
Magistrate, both the cases relate to the same occurrence. The complaint filed by
respondent No.2 was against Vicky-petitioner No.1, Suresh Kumar-petitioner No.2,
Gagandeep-petitioner No.3, and Surinder Kumar-petitioner No.4 whereas in the cross
FIR registered at the instance of Vicky, the accused were Krishan, Baldev Suri, Rohit
Suri- respondent No.2, Rahul Suri and their driver whose name was not known. As stated
in the beginning, Section 210 CrPC mandates the clubbing of FIR and criminal cases
relating to offense provided the allegations have been made by the same party, i.e., on the
allegations made by one party, a complaint is also filed, and FIR is registered. In the
present case, the petitioners registered the FIR against the respondent-complainant; thus,
the law would be that both cases should be tried together but not clubbed together.
16. In Nathi Lal v. State of Uttar Pradesh., 1990(sup) SCC 145, Hon'ble Supreme
Court holds,
[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
3 of 8
Neutral Citation No:=2024:PHHC:128132
CRM-M-32137-2019
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.
17. In Sudhir v. State of M.P., 2001(2) SCC 688, Hon'ble Supreme Court hods,
[2]. A grey area is sought to be replenished with a judicial
pronouncement. A case and counter case,
both were committed to the Court of Sessions as both cases
involve offences triable exclusively by Sessions Court. But after
hearing the preliminary arguments the Sessions Judge felt that in
one case no offence triable exclusively by a Court of Session is
involved, whereas in the other case a charge for offences including
one triable exclusively by the Sessions Court could be framed. Is it
necessary, in such a situation, that the Sessions Court should
transfer the former case to the Chief Judicial Magistrate for trial as
envisaged in section 228(1) of the Code of Criminal Procedure,
1973 (for short 'the Code'). This is the core issue which has come
up to the fore in these appeals.
[3]. For understanding the question better it is necessary to have a
short resume of the facts.
[4]. An encounter took place on the night of 18.2.1996, at a
particular place near Bhitar Bazar, Sagar, Madhya Pradesh, in
which firearms and other weapons were used and persons were
injured. The details of the incident are not relevant and hence
skipped. Two rival versions reached the police station regarding
the above incident and two First Information Reports were
registered upon those rival versions by the officer-in-charge of the
police station. FIR No. 92 of 1996 was registered against 24
persons arrayed in it as accused (for convenience this can be
referred to as 'the first case') and FIR No. 93 of 1996 was
registered against six persons (this can be referred to as 'the second
case' for convenience). Both cases were investigated together by
the police and ultimately challans were laid in both cases alleging
offences under Section 307 read with Section 149 besides some
other offences of the Indian Penal Code in both the cases. The
Magistrate before whom the challans were filed completed the
inquiry proceedings and committed both cases to the Sessions
Court for trial. Thus far the two cases flocked together side by side.
[5]. In the Sessions Court the first case was taken up under Section
227 of the Code and the Court framed charge against the accused
for offences under Section 307 read with Sections 149, 147 and
427 Indian Penal Code. When the preliminary arguments in the
second case were heard under Section 227 of the Code the
Sessions Judge found that no offence triable exclusively by a Court
of Sessions need be included in the charge and hence he framed a
charge as envisaged in Section 228(1)(a) of the Code for the
offence under Section 324 read with Section 149 and certain other
counts of the Indian Penal Code. Thereafter he transferred the
second case for trial to the Chief Judicial Magistrate as provided in
Section 228(1) of the Code.
4 of 8
Neutral Citation No:=2024:PHHC:128132
CRM-M-32137-2019
[6]. The accused in the first case moved the High Court in revision
contending that no offence under Section 307 Indian Penal Code is
made out against them and further contended that the Court should
have included the offence under Section 307 Indian Penal Code
also in the charge framed in the second case. A Single Judge of the
High Court dismissed the revision petition by order dated
30.6.2000, in which the learned Judge observed, inter alia, thus :
"The charge in each criminal case is framed on the basis of
materials available in the records of that particular case. Merely
because the charge for offence under Section 307 Indian Penal
Code has not been framed in the counter case, the petitioners do
not become entitled to be discharged for the offence under Section
307 Indian Penal Code, if they are otherwise liable to be charged
for the offence under that section in view of the materials placed
before the learned Judge."
[7]. In the meanwhile, the State of Madhya Pradesh moved the
High Court in revision challenging the order by which the Sessions
Court declined to frame charge under Section 307 Indian Penal
Code as against the accused in the second case. The said revision
petition was separately dealt with by the High Court and the same
learned Single Judge dismissed the said revision on the same day
by a separate order. He made the following reasoning :
"The facts in the counter case warranted the framing of charge
under Section 307 Indian Penal Code against the complainant and
his companions and simply because a charge under Section 307
Indian Penal Code has been framed against the complainant and
his companions, they cannot claim, on ground of parity, that such
charge should also be framed against the respondents, especially
when the materials placed in the present case do not warrant
framing of charge under Section 307 Indian Penal Code against the
respondents. It is the settled law that charge is to be framed on the
basis of material available in that particular case and the Judge or
Magistrate should not be influenced by any other consideration.
Under the circumstances, the impugned order needs no interference
by this Court on the ground of parity as contended by the learned
counsel for the petitioner and the complainant."
[8]. The above two orders passed by the High Court are being
challenged now in separate appeals by special leave, and both these
appeals were heard together and they can be disposed of together
by a common judgment now.
[9]. It is a salutary practice, when two criminal cases relate to the
same incident, they are tried and disposed of by the same Court by
pronouncing judgments on the same day. Such two different
versions of the same incident resulting in two criminal cases are
compendiously called "case and counter case" by some High
Courts and "cross cases" by some other High Courts. Way back in
nineteen hundred and twenties a Division Bench of the Madras
High Court (Waller and Cornish, JJ.) made a suggestion (In Re
Goriparthi Krishtamma, 1929 Madras Weekly Notes 881) that "a
case and counter case arising out of the same affair should always,
if practicable, be tried by the same Court, and each party would
represent themselves as having been the innocent victims of the
aggression of the other."
[10]. Close to its heels Jackson, J., made an exhortation to the then
legislature to provide a mechanism as a statutory provision for trial
5 of 8
Neutral Citation No:=2024:PHHC:128132
CRM-M-32137-2019
of both cases by the same Court (vide Krishna Pannadi v. Emperor,
AIR 1930 Madras 190). The learned Judge said thus :
"There is no clear law as regards the procedure in counter cases, a
defect which the legislature ought to remedy. It is a generally
recognised rule that such cases should be tried in quick succession
by the same Judge, who should not pronounce judgment till the
hearing of both cases is finished."
[11]. We are unable to understand why the legislature is still
parrying to incorporate such a salubrious practice as a statutory
requirement in the Code. The practical reasons for adopting a
procedure that such cross cases shall be tried by the same Court,
can be summarised thus : (1) It staves off the danger of an accused
being convicted before his whole case is before the Court; (2) It
deters conflicting judgments being delivered upon similar facts;
and (3) In reality the case and the counter case are, to all intents
and purposes, different or conflicting versions of one incident.
[12]. In fact, many High Courts have reiterated the need to follow
the said practice as a necessary legal requirement for preventing
conflicting decisions regarding one incident. This Court has given
its approval to the said practice in Nathi Lal and others v. State of
U.P. and another, 1990 Supp SCC 145. The procedure to be
followed in such a situation has been succinctly delineated in the
said decision and it can be extracted here:
"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 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."
[13]. 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 offence or offences 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 :
6 of 8
Neutral Citation No:=2024:PHHC:128132
CRM-M-32137-2019
"If, in any inquiry into an offence or trial before a Magistrate, it
appears to him at any stage of the proceedings before signing
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."
[14]. 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 by 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 Sections 209 and 323 might be
through two different channels, but once they are committed their
subsequent flow could only be though the stream channelised by
the provisions contained in Chapter XVIII.
[15]. Now we have to deal with the powers of the Sessions Court in
the light of Section 228 of the Code which says that when the
Sessions Court, after hearing under Section 227, is of opinion that
none of the offences presumed to have been committed by an
accused is triable by a Court Sessions he is to transfer the case for
trial to the Chief Judicial Magistrate.
[16]. In this context, we may point out that a Sessions Judge has
the power to try any offence under the Indian Penal Code. It is not
necessary for the Sessions Court that the offence should be one
exclusively triable by a Court of Sessions. This power of the
Sessions Court can be discerned from a reading of Section 26 of
the Code. When it is realised that the Sessions Judge has the power
to try any offence under the Indian Penal Code and when a case
involving offence not exclusively triable by such Court is
committed to the Court of Sessions, the Sessions Judge has to
exercise a discretion regarding the case which he has to continue
for trial in his Court and the case which he has to transfer to the
Chief Judicial Magistrate. For this purpose we have to read and
understand the scope of Section 228(1) in the light of the above
legal position. The sub-section is extracted below:
"If, after such consideration and hearing as aforesaid, the Judge is
of opinion that there is ground for presuming that the accused has
committed an offence which :
(a) is not exclusively triable by the Court of session, he may, frame
a charge against the accused and, by order, transfer the case for
trial to the Chief Judicial Magistrate, and thereupon the Chief
Judicial Magistrate shall try the offence in accordance with the
procedure for the trial of warrant-cases instituted on a police
report;
(b) is exclusively triable by the Court, he shall frame in writing a
charge against the accused."
[17]. The employment of the word "may" at one place and the
word "shall" at another place in the same sub-section unmistakably
indicates that when the offence is not triable, exclusively by the
Sessions Court it is not mandatory that he should transfer of the
case to the Chief Judicial Magistrate after framing a charge. In
7 of 8
Neutral Citation No:=2024:PHHC:128132
CRM-M-32137-2019
situations where it is advisable for him to try such offence in his
Court there is no legal obligation to transfer the case to the Chief
Judicial Magistrate. One of the instances for not making the
transfer is when a case and counter case have been committed to
the Sessions Court and one of those case involves an offence
exclusively triable by the Sessions Court and the other does not
involve any such offence.
[18]. In the present case, the Sessions Judge ought not have
transferred the second case to the Chief
Judicial Magistrate as he did, but he himself should have tried it in
the manner indicated in Nathi Lal (supra). To facilitate such a
procedure to be adopted we have to set aside the order passed by
the Sessions Judge in the second case. We do so.
18. Given the above, there is no illegality in the impugned order.
19. Petition dismissed. All pending applications, if any, stand disposed of.
(ANOOP CHITKARA)
JUDGE
26.09.2024
anju rani
Whether speaking/reasoned: Yes
Whether reportable: No.
8 of 8
