Binayak Mishra and Another vs State and Another

S.C. Mohapatra, J.—This is an application u/s 482 Criminal Procedure Code.

Petitioners are accused facing their trial in the Court of the Assistant Sessions Judge, Bolangir in Sessions Case No78/1-6 of 1985.86. On 29-9-1986, an application was filed for adjournment of the trial till commitment of I. C. C. No. 66 of 1985 in the. Court of the Sub-Divisional Judicial Magistrate. Bolangir, claiming the same to be a counter case to the prosecution in the sessions case. Learned Assistant Sessions Judge called for the records of 1. C. C. No. 66 of 1985 for determination whether the same is a counter case. On 25-10-1986, the learned Assistant Sessions Judge perused the record of the complaint case and held:

... It appears from the complaint-filed by Binayak Misra (accused in this case), that Bhagaban Bagarty who is injured in the S.C. Case No. 78-1 of 85-86 and Bharat Bagarty, informant in the Sessions case assaulted the accused persons on 30-5-1985 at about the same time of the occurrence. On perusal of the records of both the cases, it is found that the I. C. C. Case is counter to the said S.C. No. 78-1 of 85-86. Hence the petition for adjournment till commitment of the counter case I. C. C. Case No. 66 of 1985 disposal of that case by the S. D. J. M. Bolangir since the same is still at the stage of enquiry, is allowed.

On such of the subsequent dates trial was adjourned awaiting commitment of the counter - case. On 21-12-1987 a report was called for from the Court of Sub-Divisional Judicial Magistrate. The relevant portion of the order reads as follows:

.... This is a long pending case for non-commitment of the counter case from the Court of S. D. J. M. Balangir. Inform the S. D. J. M. to intimate this Court by 25-1-1988 the stage in which the case is posted and if the committal proceeding cannot be completed by that date, he should intimate this Court for necessary action at this end.

The case was adjourned for several dates thereafter awaiting the intimation from the Court of the Sub-Divisional Judicial Magistrate. Lastly, on 16-4-1988, learned Sessions Judge adjourned the case to 21-4-1988 awaiting intimation for further-orders. On 21-4-1988 before receipt of any intimation the case was posted for trial to 6-6-1988 and 7-6-1988 which is the grievance of the Petitioner in this application.

At the ti me of considering the question of entertaining the petition, I directed issue of notice and to call for the records of the sessions case. I directed that the witnesses may be examined but the judgment shall not be delivered till 21-6-1988 directing the matter to be listed on 20-6-1988 for admission. The informant was intimated in the notice that the application would be finally disposed of at the stage of admission.

In course of hearing, Mr. P. K. Misra, the learned Counsel for the Petitioners submitted that the accused persons had approached this Court to quash the cognisance taken in the complaint case in Criminal Revision No. 218 of 1988. On perusal of the record in Criminal Revision No. 218 of 1988 I find from the certified copy of the order dated 27-2-1988 in the complaint case, that the learned Sub-Divisional Magistrate has taken cognizance for offence under Sections 148/324/326/435/149., Indian Penal Code, and has directed issue of process against the opposite party No. 2 the informant in the sessions trial and Ors. . In course of hearing, learned Counsel for the Petitioners in Criminal Revision was permitted to withdraw the revision. Thus, at present there is no difficulty, in commitment of the complaint case.

Supreme Court in a case reported in Akhlaq '' Islaq and Ors. v. The State of Uttar Pradesh 1962 Mys. L. J. 134. Observed:

... Wherever, as in the present case the parties are prosecuted for attack on each other in the same occurrence and there are counter cases with counter versions both trials should be held separately but, one after the other, by the same Judge who should not pronounce judgments till after both cases are heard and finished....

Decisions reported in Krishna Pannadi Vs. Emperor, , AIR 1936 356 (Lahore) and Banappa Kallappa Ajawan and Ors. v. Emperor AIR 1944 Born. 146, have been approved by the Supreme Court''. A Division Bench of this Court has held in the decision reported in Kalandi Behera and Others Vs. The State,

.... In 1962 Mys. L. J. 134. their Lordships of the Supreme Court negatived this view. They observed that wherever the parties are prosecuted for attack on each other in the same .occurrence and there are counter cases and versions, both trials should be held separately but one after the other, by the same Judge who should not pronounce judgments till after both cases are beard and finished and the same would apply to appeal also....

In Gandi Sahu and Ors. v. State of Orissa and Ors. 41 (l975) C.L.T. 607, referring to the decision of the Supreme Court and of this Court the power u/s 407 (1) (c). Criminal Procedure Code was exercised and in the interest of justice and for convenience of parties the prosecution pending before, the Sub-Divisional Judicial Magistrate was directed to be committed to the Court of session for being duly tried by the same Judge one after the other in accordance with law. This is the consistent view of this Court. See Maheswar Lenka and Ors. v. The State 1978 C.L.R. 321, Mohammad Ayub v. State and four Ors. 1979 C.L.R. 358, Khageswar '' Dasa Das and Ors. v. Gandharba Das and Ors. 1983 C.L.R. 6 and Nishakar Panigrahi v. Kulamani Dixit and Ors. 1984 C.L.R. 172: 1984 C. L.T. 544.

In view of the aforesaid acts and law the learned Assistant Sessions Judge rightly waited for the commitment of the complaint case and while fixing the dates for recording evidence by order dated 21-4-1988. he ought to have given reasons for deciding to depart from the earlier decision. The order dated 21-4-1988 cannot be sustained which is vacated.

From the orders, I find that on 6-6-1988 and 7-6-1988 the learned Assistant Sessions Judge was absent on casual leave though he summoned witnesses. It is to be administratively examined if the absence on casual leave on a date when witnesses in a Sessions trial have been summoned was proper. Unless the absence was beyond avoidance, the leisurely dealing with trial of sessions cases cannot be supported since public policy is expeditious trial. It is however, found in this case except one witness present on 7-6-1988, the witnesses summoned did not turn-up though summons were served.

In the result, the application is allowed. The Sub-Divisional Judicial Magistrate, Bolangir is directed to commit I. C. C. Case No. 66 of 1985 and on commitment, the case is transferred to the Court of Assistant Sessions Judge, Bolangir before whom Sessions Case No. 78-1/6 of 1985-86 is pending trial. Both the cases are directed to be tried one after the other and after completion of trial of both the cases, separate judgments are to be delivered in both the cases in accordance with law. Send back the lower Court records immediately.