Gurdev Singh and ors. vs Punjab State and anr.

S.S. Dewan, J.

This revision petition is directed against the order of the Additional Sessions Judge, Rup Nagar. dated February 19, 1982, setting aside the order of discharge, dated August 25, 1981, passed by. the Judicial Magistrate Ist Class, Rup Nagar, in case No. 91/1861981 under Ss. 323/324/504/34, Indian Penal Code.

The material facts necessary for our purpose lie in a narrow compass. Hakikat Singh accusedpetitioner is said to have a well joint with the husband''s brother and husband of Surjit Kaur complainantrespondent in village Mudian which has a passage through the fields. It is said that on May 14, 1980, brother of the husband of the complainant along with Ujagar Singh and Raghbir Singh were present at the well. It was found that Hakikat Singh had blocked the said passage by stacking toori. Dharam Singh requested Hakikat Singh to remove the obstruction from the passage but the latter along with his companions started rebuking him, which led to an altercation between them. It is alleged that the accused (now Petitioners) who were armed with weapons like salangs and soti, assulted Dharam Singh with their respective weapons. After this incident, the parties left for their village and near the village the accused again attacked Dharam Singh and Surjit Kaur complainant. This incident was witnessed by Mohinder Singh and Parkash Singh. The complainant had admitted that Dharam Singh also gave some injuries to the accused party in selfdefence After going through the preliminary evidence of the complainant, the accused were summoned by the Magistrate to face trial for the aforesaid offences and the complainant was directed to lead evidence for framing the charge against the accused. It is pertinent to mention here that the accused party had lodged a report at the police station against the complainant party and the latter was accordingly, challaned and sent up for trial. The trial Magistrate after perusing the evidence examined by the complainant party and bearing the parties'' counsel found that the accused party had caused injuries to the complainantparty in self defence and discharged the accused. Feeling aggrieved, Smt. Surjit Kaur, respondent went up in revision. The learned Additional Sessions Judge relying on a Single Bench decision of this Court in Ajmer Singh v. Thakar Singh and another, C.L.R. (P&H) 503, set aside the order of the trial Magistrate dated August 25, 1981, holding that the Magistrate should have decided both the challan case and the cross complaint together at the same time to avoid conflicting judgment and accordingly remanded the case to the trial Magistrate with the direction that he shall decide the complaint case and the challan case together at one and the same time. Feeling dissatisfied, Hakikat Singh and other have now come up in revision.

The learned counsel for the petitioners has contended that the learned Additional Sessions Judge has gravely erred in setting aside the order of discharge passed by the Judicial Magistrate Ist Class, Rup Nagar. On the other hand. the learned counsel for the complainant respondent has urged that when there are two cases arising out of the same transaction and the one version is the cross version of the other the two cases should be tried together by the trial Court at the same time and in support of his contention he has relied on a decision in Ajmer Singh''s case (supra). After hearing the parties'' counsel I am of the considered view that there is substance in the contention raised by the learned counsel for the petitioners. It is the bounden duty of the Court to scrutinize the evidence on the record and to apply its judicial mind if it is a fit case for framing the charge against the accused or not. In Century Spinning and Manufacturing Co. Ltd. v. The State of Maharashtra, A.I.R. 1972 S.C. 545, it has been observed by the Supreme Court as under :

"It cannot be said that the Court at the stage of framing the charges has not to apply its judicial mind for considering whether or not there is a ground for presuming the commission of the offence by the accused. The order framing the charges does substantially affect the person''s liberty and it cannot be said that the Court must automatically frame the charge merely because the prosecuting authorities by relying on the documents referred to in section 173 consider it proper to institute the case. The responsibility of framing the charges is that of the Court and it has to judicially consider the question of doing so. Without fully adverting to the material on the record it must not blindly adopt the decision of the prosecution."

It is settled law that the jurisdiction of the Court on the revisional side to interfere in the orders of acquittal or discharge is very limited. The case can only be sent back for retrial if there is a manifest illegality in the order and there is grave miscarriage of Justice. But neither of these grounds exists in this case. In Ajmer Singh''s case, (supra), there were cross cases between the same parties and both the cases were pending trial in one Court and in that situation, a direction was sought to be issued to the trial Court that the case instituted on a police report and the other crosscase instituted on a private complaint be decided simultaneously. In the present case, the trial Magistrate had tried the case instituted on a private complaint and after holding that no prima facie case was made out, discharged the accused. The facts in Ajmer Singh''s case, (supra), are clearly distinguishable and the ratio thereof is not applicable to the facts and circumstances of the present case. The general rule no doubt is that the cross cases should ordinarily be tried by the trial Court simultaneously but this is a rule of convenience and cannot be universally adhered to. Apart from this, even if, the trial Magistrate had committed the irregularity by deciding the complaint case first, it has no effect of vitiating the trial of that case. In this view I am fortified by a Division Bench decision of Rajasthan High Court in Banwari Lal v. Ram Partap, 1979 Rajasthan Criminal Cases 391. Mr. Ujagar Singh, learned counsel for the complainantrespondent could not cite any authority before me to show that the order of discharge based on proper and thorough appreciation of evidence and supported by good reasons can be set aside and a retrial be ordered merely because the complaint case was not tried with the challan case and the order of discharge was passed before the conclusion of the trial of the challan case. However, I think it proper to make it clear that the findings of the trial Court given out in the complaint case shall not adversely affect the merits of the challan case.

The result, therefore, is that this revision petition must succeed and allowing the same I set aside the order of the Additional Sessions Judge and restore that of the Judicial Magistrate Ist Class, Rup Nagar, discharging the petitioners.