Hasim Mian vs Sunder Paswan and Others

M.P. Verma, J.—This petition in revision is directed against an order of a Munsif-Magistrate dated the 12th November, lt;68, by which he dismissed the prayer of the petitioner to commit the ease before him to the Court of Session to be tried along with the sessions case of the opposite party.

The short facts are, that the petitioner filed a petition of complaint before (he Sub, divisional Officer, Sahara, alleging that, in the morning of the 24th May, 1966, opposite-party No. 1 Sundar Paswan was getting Mungmaize and paddy crops of the petitioner grazed by two heads of bullocks. Nabijan, the uncle of the petitioner, protested and drove the bullocks towards the pound. Upon this, Sundae Paawaa called hit) men and they began to assault Nabijan with lathis. Nabijan waa examined at the Mehsi hospital on the next day. It ia alleged that the complaint was filed along with the receipts granted by the pound-keeper aa well as the medical certificate granted by the civil Assistant Surgeon. Tha learned Sub.divisional Officer took cognizance and traaaferred the caaa to the file of Shri B. P. Verma, Munsif-Magistrate first class.

There appeacs to be a counter.cftpe of this version. Opposite party No. 1 lodged a first information report before the police alleging that, on the 24th May, 1966, at about 8 a. m., the petitioner and others of his party came upon the land, The case of the opposite party was that they had taken the land in settlement from the State of Bihar and had erected a residential hut over it; they were living in the hut and were cultivating the land. The petitioner was claiming the land by virtue of settlement from the ex-landlord. The petitioner and others, after coming to the land, asserted their right. Opposite party No. 1 was working in the field, along with his cousin. The party of the petitioners assaulted him and fire to the hut which was burnt to ashes. This case was also transferred to the sama Munsif-Magistrate, who committed the accused in that ease to the Court of Session.

A petition was filed on behalf of the patitioner before the Munsif-Magistrate that as both the cases were in the nature of counter. cases, both of them should be committed to the Court of Session. The learned Munsif-Magistrate rejected this petition. There was a revision before the Sessions Judge, who, though holding that both the cases were counter to each other, declined to make a reference to this Court recommending that this case should also be committed to the Court of Session, on the ground of delay. As against this order, the present revision has been tiled.

Mr, Brajeshwar Mallik, learned Counsel for the petitioner, has urged that real justice to the parties would not be done unless the whole picture of the occurrence is present before the Court. If two Courts try the cases separately, then they will not have the whole picture before them. The version of the counter-case should be examined by the same Judge and then he would be able to do justice to both the parties. The complaint ease in the one is the defence ease in the other. In support of his argument, fa. 9 has referred to two cases, namely, Abdul Samad Nagu Vs. Ab. Pehman Khanday and Another, and Thota Ramakrishnayya and Others Vs. The State, which was followed in the case of Netra Parida Vs. The State and Others, .

In the case of Thota Ratnkrishnayya there is an elaborate discussion concerning the matter in hand. That case was really an appeal after conviction by the Sessions Judge. Even then, the following observations were made :

The trial of this case is in violation of the injunction of this High Court and other High Courts in a series of decisions and the principle of which is as follows. Where there is a fight between two rival factions which gives rise to the complaint and chunter-complaint it is a generally recognised rule that both the cases should be tried by the same Judges in quick succession.

In such cases the first case should be heard and the judgment should be reserved. Then the second ease should be taken up and;then the judgment should be reserved. The trial Judge will then consider the whole case and come to a definite conclusion and should pronounce the judgment in both the cases on the same date, if practicable. In the instant case, there is no doubt that there ace injuries on both sides.. The time and the place of occurrence are also the same. So it is better if both the cases are tried by the same Judge.

The only objection which can be taken to this procedure being adopted is that the petitioner has made inordinate delay in agitating this matter in the criminal case. Before the learned Munsif-Magistrate all the ten witnesses have been examined and the accused hava entered upon their defence. Now much is not left to be done in this criminal case. The hearing in the Sessions case has not as yet begun. The real question to be seen is Whether this delay should defeat the ends of justice. It may be that the opposite party would be put to some harassment, but that harassment is not appreciable. The ten witnesses may be examined in two or three days only in the Sessions Court. So, the harassment, if any, may be for three clays only.

On behalf of the opposite party, my attention has been drawn to the ease of Arjun Singh Vs. Gangotri Singh and Others, , which was decided by a Single Judge of the Court. The learned Judge observe that the rule that counter cases should ordinarily be tried by on a and the same Court is not a rule which is or can conveniently be universally adhered to. The rule u one of convenience and provisions of the Criminal P.C., cannot be ignored in order to give effect ho it. The ease before the learned Single Judge was a case which was triable by a Special Judge appointed under Act 40 of 1802. Furthermore, in that casa there was no question of an occurrence which was admitted by both the parties to have taken place. There was nothing to show that the two cases could be properly described as counter-cases, So this observation does not stand in my way in the view which I am going to take. There cannot be any rule which can be made universally applicable.

Taking all these facts and circumstances into consideration, I think, for the ends of justice, it is desirable that both the cases should be tried by the same Judge, namely, the Sessions Judge. The learned munsif-Magistrate would consider the evidence so far recorded by him as an enquiry under Chapter XVIII of the Criminal P.C. After treating this evidence as a commitment enquiry, if he finds that no prima facie case appeals to have been made out against the accused, he may dis-charge them. But if, on the other hand, he is of opinion that a prima facie case has been made out, he would commit the case foe trial to the Court of Session.

In the result, this application succeeds and is allowed as indicated above.