Tripura High Court

Shri Asim Das vs The State Of Tripura on 5 March, 2021

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                     HIGH COURT OF TRIPURA
                           AGARTALA
                        Crl.Rev.P.No.4 of 2021

Shri Asim Das
S/o. Late Matilal Das, Resident of Nandannagar, S.D.O Chowmuhani,
Debnathpara, P.S. New Capital Complex, District- West Tripura
                                               ....................Petitioner(s)

                                 Versus

1.The State of Tripura
Represented by Ld. Public Prosecutor,
Hon'ble High Court of Tripura, Agartala.
                                               ..................Respondent(s)

For the Petitioner(s) : Mr. J.Bhattacharjee, Adv.

For the Respondent(s)            : Mr. Ratan Datta, PP
Whether fit for reporting        : No.


                              BEFORE

         HON'BLE MR. JUSTICE S.G.CHATTOPADHYAY

                       Judgment & Order(Oral)

05.03.2021

[1]          By this criminal revision, petitioner has challenged orders

dated 06.10.2016 and 15.01.2021 passed by the Addl. Sessions Judge

(Court No.2), West Tripura Agartala in case No.S.T(T-1) 51 of 2016

whereby the learned Addl. Sessions Judge rejected the prayer of the

petitioner for analogous trial of the case and counter case arising out of

the same incident.

[2] The incident allegedly occurred on 06.05.2014 at around 7

O'clock in the morning in the house of Shri Ashim Das at

Nandannagar, SDO Chowmuhani, Agartala, out of which 02 FIRs were

lodged on the same day with the Officer-in-Charge of New Capital

Complex (NCC) Police Station. The first FIR was lodged by Shyamal

Some Bhowmik of Noagaon, Krishnanagar at 12.45 P.M alleging, inter

alia, that at about 7.30 a.m on the day when his elder brother and

younger sister entered the house of Ashim Das in their neighbourhood

in search of their elder sister Smt. Sikha Deb, the accused persons

attacked them with deadly weapons as a result of which his brother and

sister received fatal injuries and both of them were shifted to GBP

Hospital from where they were referred to ILS Hospitals for better

treatment.

[3] Based on this information, NCC P.S. case No. 43 of 2014

under Sections 326 and 341of the Indian Penal Code(IPC in short) was

registered. After investigation, charge-sheet was submitted against the

accused persons under Sections 323, 326, 506 and 307 read with

Section 341 IPC and the case was later committed to the Court of

Sessions which culminated into trial in case No. ST 51 of 2016 in the

court of the Addl. Sessions Judge, (Court No.2) at Agartala in West

Tripura.

[4] The second FIR arose out of the same incident which was

filed by one of the accused first case. She (name withheld to hide her

identity) alleged in her FIR that Amal Some Bhowmik (injured of the

first case) trespassed into her house at about 7 A.M on 06.05.2014 and

outraged her modesty by disrobing her. In order to save her life, she

gave several blows to said Amal Shome Bhowmik with a 'dao'.

Thereafter, injured Amal Some Bhowmik fled away from her house.

Based on her FIR East Agartala Woman P.S. case no.30 of 2014 under

Sections 448 and 304B IPC was registered and after investigation

charge sheet was submitted against the accused persons which

culminated into trial as PRC(WP)515 of 2021 in the court of the

Judicial Magistrate of the First Class(Court No.6) at Agartala.

[5] After the sessions case was put to trial in the court of the

Addl. Sessions judge(Court No.2), the petitioner moved an application

in the court of the Addl. Sessions Judge for trying both the cases

together in the court of the Addl. Sessions Judge. The learned Addl.

Sessions Judge by his order dated 06.10.2016 declined to allow the

petition on the ground that case No.PRC 515 of 2014 was tryable by

the Judicial Magistrate whereas the other case i.e. ST 51 of 2016 was

exclusively tryable by the court of Sessions and therefore, the two cases

could not be tried together. Relevant extract of the said order dated

06.10.2016 of the learned Addl. Sessions Judge is as under:

"Accused persons namely Ashim Das and Sujata Das on bail are present.

Ld. Addl. PP Mr. B. Debbarma is also present.

It appears from the case record that as per order of his court dated 23.09.16 the case record bearing no. PRC 515/14 has been transmitted to this court from the court of Ld. JM First Class Court No. 4 Agartala.

Heard Ld. Counsel of both sides.

Ld. Advocate Mr. K. Indu appearing for the accused petitioner of PRC 515/14 has submitted that the instant case PRC is instituted on the basis of a compliant of Sujata Das against Amal Shom Bhowmik and after investigation IO submitted chargesheet against accused Amal Shom Bhowmik u/s 448/354 (b) of IPC which is exclusively triable by the court of Ld. JM First Class Court NO.4.

Moreover, both the cases cannot be taken together as one is the Sessions Trial case and another is triable by magistrate.

Ld. Addl PP Mr. B. Debbarma is present.

Considering the submission of Ld. Counsel Mr. K.Indu.

I have perused both the case record on perusal of the same I do not find any ground to try both the cases together which is not permissible as per law. Accordingly the case record be again send back to the court of ld. JM, First class for trial according to law."

[6] The petitioner re-agitated the matter during the trial of the

sessions case in the court of the leaned addl. Sessions judge (Court

No.4), Agartala. By order dated 15.01.2021, the learned Addl. Sessions

Judge held that though he was aware that case and counter case must be

tried together by the same judge to avoid conflicting decisions, he was

of the view that since he could not sit on revision to revise the order

passed by his predecessor, he was unable to act contrary to the said

order dated 06.10.2016. Having recorded such finding the learned

Addl. Sessions Judge further rejected the application for analogous

hearing of the two cases. The excerpt of his order is as under:

"....Record reveals that similar application was filed earlier by the accused persons on 19.09.2016. Accordingly, my predecessor in office has called for the record of PRC (WP) 515 of 2014 and on perusal of the record vide order dated 06.10.2016 he opined as under:

"I have perused both the case record on perusal of the same I do not find any ground to try both the cases together which is not permissible as per law. Accordingly, the case record be again send back to the court of learned JM 1st Class for trial according to law."

We do not have any hesitation to say that the case counter case must be tried together by the same judge so as to avoid conflicting decisions .However, right or wrong the matter in question has already been decided by us vide order dated 06.10.2016 and as such we are not in a position to revise the order so passed earlier. In view of the above, the application dated 10.07.2020 stands rejected"

[7] Heard Mr. J.Bhattacharjee, learned counsel appearing for

the petitioner who submits that the law enunciated by the Apex Court is

that when two criminal cases relate to the same incident, both the cases

have to be tried and disposed of by the same court by pronouncing

judgments on the same day. It is argued by learned counsel that the

learned Addl. Sessions Judge rejected the successive applications filed

by the petitioner and declined to try the case and counter case together

which is contrary to the settled proposition of law. Having relied on the

decision of this High Court in Marani Nama vs. Dilip Datta and Ors.

reported in 2015 2 TLR 810, Mr.Bhattacharjee learned counsel urges

this court to issue direction to the court of Learned Addl. Sessions

Judge for trying both the cases together to avoid conflicting decision in

the cases.

[8] Mr.Ratan Datta, learned PP on the other hand vehemently

opposes the submission of Mr.J.Bhattacharjee, learned counsel of the

petitioner and argues that the trial of sessions case is almost complete

whereas the trial of the other case in the court of JMFC(Court No.6) is

at the initial stage and as such a direction to try both the cases together

will obviously cause delay in the disposal of the sessions case.

[9] In Nathi Lal vs State of UP reported in 1990 Supp SCC

145, the Apex Court has succinctly held that the case and counter case

should be tried by the same judge one after the other and both the

judgments must be pronounced by the same Judge one after the other.

Observation of the Apex Court in this regard is as under:

"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"

[10] The same law was reiterated by the Apex Court in Sudhir

and Ors. vs. State of MP reported in (2001) 2 SCC 688 in which the

Apex Court held as under:

"8. 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."

[11] In the said judgment the Apex Court further held as under:

"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:

"323.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 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 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 through the stream channelised by the provisions contained in Chapter XVIII.

14. 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 the opinion that none of the offences presumed to have been committed by an accused is triable by a Court of Sessions he is to transfer the case for trial to the Chief Judicial Magistrate.

15. 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....."

[12] This High Court in Marani Nama vs. Dilip Datta(supra)

referred to the decision of the Apex Court in the case of Nathi Lal and

Ors. (supra) and Sudhir vs. State of MP(supra)and held as under:

"[5] In Sudhir vs. State of M.P., the apex court has approved the practice to be followed in such a case as enunciated in Nathi Lal vs. State of U.P : 1990 Supp SCC 145. In Nathi Lal vs. State of U.P, it has been enunciated that where there are cross cases, those cases must be tried by the same Judge 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 evidences he must hear the arguments but reserve the judgment in that case. The same Judge must thereafter dispose of the matters by two separate judgments. What has been further held in Nathi Lal vs. State of U.P : 1990 Supp SCC 145 is that in deciding each of the cases, the trial Judge can only rely 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 placed on record in the particular case, without being influenced in any manner by the evidence or arguments placed in the cross case but both the judgment must be pronounced by the same learned Judge one after the other in the same day."

[13] Undisputedly the case and the counter case are arising out

of the same incident which occurred on the same day at the same place

and at the same time between the same parties. Therefore, in view of

the law enunciated by the Apex Court in the judgments cited supra and

the decisions of this High Court in the case of Marani Nama(supra)

both the cases should be tried together by the Addl. Sessions Judge,

Court No.2. It appears from the LC record that the sessions case has

been pending at the argument stage. Case No. PRC(WP) 515 of 2014

has been pending in the court of Judicial Magistrate of the First class,

(Court No.6), Agartala at the stage of recording of evidence.

[14] The learned Judicial Magistrate of the First Class (Court

No.6) is therefore, directed to send the record of PRC(WP)515 of 2015