2005 ALL MR (Cri) 1611
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(NAGPUR BENCH)
S.T. KHARCHE, J.
Giridhar S/O. Vishwanath Pise Vs. State Of Maharashtra & Ors.
Criminal Revision Application No.40 of 2005
11th March, 2005
Petitioner Counsel: Mr. RAJENDRA DAGA
Respondent Counsel: Mr. D. B. YENGAL,Mr. G. G. BADE
Criminal P.C. (1973), S.4 - Trial of offences - Cross or counter cases - Shall be tried by same Court. 2001 SCC (Cri) 387 - Followed. (Para 4)
Sudhir Vs. State of M.P., 2001 SCC (Cri) 387 [Para 4]
2. Mr. Daga, learned counsel, for the applicant contended that offence bearing Crime No.138 of 2003 punishable under Sections 147, 148, 308, 323 and 324 read with Section 149 of Indian Penal Code has been registered at Police Station, Warora which is arising out of the incident which occurred on 27-8-2003 at about 18-00 hours at Waghnakh. He contended that a cross case bearing Crime No.139 of 2003 for the offence punishable under Section 323 read with Section 149 of Indian Penal Code has also been registered, which is also arising out of the said incident which occurred on 27-8-2003 at about 18-00 hours at Waghnakh. The latter crime has been registered on the basis of the complaint of the applicant. Mr. Daga, learned counsel, further contended that since there are counter or cross cases, it is desirable that both the criminal cases should be disposed of by the same Court and the judgments should be pronounced on the same day. He further contended that the impugned order passed by the learned Sessions Judge is erroneous who rejected the prayer for clubbing of both the cases, i.e. S. T. No.3 of 2004 (State Vs. Ganesh) and Summary Criminal Case No.151 of 2003 (State Vs. Sanjay Chimurkar) and it has resulted into miscarriage of justice and the said order is liable to be set aside and the revision may kindly be allowed.
3. The learned counsel for respondents No.2 to 7 contended that the respondents No.2 to 7 are the accused in Summary Cri. Case No.151 of 2003 pending before the J.M.F.C., Warora, and if they are convicted they would lose their one right of appeal before the Sessions Judge. He contended that in such circumstances it cannot be said that the impugned order has resulted into miscarriage of justice and, therefore, the revision may kindly be dismissed.
4. This Court has given thoughtful consideration to the contentions canvassed by the learned counsel for the parties. It is not in dispute that two counter cases are pending in the Court. Sessions Trial No.3 of 2004 (Crime No.138/03) is pending in the Sessions Court, whereas Summary Criminal Case No.151/03 (Crime No.139/03) is pending before J.M.F.C., Warora. The learned Sessions Judge rejected the prayer of the applicant/accused for transfer of the aforesaid summary criminal case from the Court of J.M.F.C., Warora to the Court of Sessions on the ground that in both the cases the accused are different and the offences are distinct in both the cases. Such order cannot be sustained in view of the observations of the Supreme Court in Sudhir Vs. State of M.P. - 2001 SCC (Cri) 387, wherein it has been held in para 10 of the judgment that "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 : (i) It staves off the danger of an accused being convicted before his whole case is before the court, (ii) It deters conflicting judgments being delivered upon similar facts, and (iii) In reality the case and the counter-case are, to all intents and purposes, different or conflicting versions of one incident."
5. The aforesaid law laid down by the Supreme Court is squarely applicable to the present case and it is obvious that the impugned order passed by the learned Sessions Judge has resulted into miscarriage of justice and, therefore, this Court is required to interfere into the said order by giving directions that both the cases, i.e. S.T. No.3 of 2004 and Summary Criminal Case No.151 of 2003 shall be tried by the same Court, i.e. Ad hoc Additional Sessions Judge. Consequently, this Court directs that Summary Criminal Case No.151 of 2003 shall stand transferred from the Court of J.M.F.C., Warora to the Court of Ad hoc Additional Sessions Judge, Chandrapur for disposal in accordance with law. Needless to mention that the Ad hoc Additional Sessions Judge shall hear and decide both the cases simultaneously on merits in accordance with law and deliver the judgment on the same day. With these observations, this revision is allowed accordingly.