http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 5

CASE NO.:

Appeal (crl.) 135 of 2001

Appeal (crl.) 136 of 2001

PETITIONER:

SUDHIR AND ORS

Vs.

RESPONDENT:

VS.

DATE OF JUDGMENT: 02/02/2001

BENCH:

K.T. Thomas & R.P. Sethi.

JUDGMENT:

THOMAS, J.@@

JJJJJJJJJJ

L...I...T.......T.......T.......T.......T.......T.......T..J

Leave granted.

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

Sessions 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 (for short the Code). This is the core issue

which has come up to the fore in these appeals.

For understanding the question better it is necessary to

have a short resume of the facts.

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 5

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.

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 IPC. 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.

The accused in the first case moved the High Court in

revision contending that no offence under Section 307 IPC is

made out against them and further contended that the court

should have included the offence under Section 307 IPC 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 IPC has not been framed in the counter case, the

petitioners do not become entitled to be discharged for the

offence under section 307 IPC, if they are otherwise liable

to be charged for the offence under that section in view of

the materials placed before the learned Judge.

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

IPC 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 IPC against the complainant and his

companions and simply because a charge under section 307 IPC

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 IPC 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.

The above two orders passed by the High Court are being

challenged now in separate appeals by special leave, and

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 5

both these appeals were heard together and they can be

disposed of together by a common judgment now.

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.

Close to its heels Jackson, J, made an exhortation to

the then legislature to provide a mechanism as a statutory

provision for trial of both cases by the same court (vide

Krishna Pannadi vs. 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 recognized 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.

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. (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.

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 & ors. vs. State of U.P. & anr. {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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 5

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.

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 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.

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 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.

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 of

Sessions he is to transfer the case for trial to the Chief

Judicial Magistrate.

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 5

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.

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 order transfer of the case to the Chief Judicial

Magistrate after framing a charge. In 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 cases

involves an offence exclusively triable by the Sessions

Court and the other does not involve any such offence.

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.

Resultantly, we allow the appeal arising out of S.L.P.

(Crl) No.4007 of 2000, and set aside the order of the High

Court as well as the order passed by the Sessions Court by

which the case was transferred to the Chief Judicial

Magistrate. We direct the Sessions Court concerned to try

and dispose of the first case and the second case in the

manner set out in Nathi Lals case (supra). In view of the

above direction, the impugned order in the appeal arising

out of S.L.P. (Crl.) No.3840 of 2000, will remain

undisturbed.