Jeevan Singh vs State of M.P.

D.K. Paliwal, J.—This petition has been filed u/s 482 of Cr.P.C. for quashing the order passed in Criminal Revision No.12/12 on 15.3.12 by Additional Sessions Judge/Special Judge, Guna, whereby the order dated 30.11.11 passed by the JMFC, Guna, in Criminal Case No.1643/11 dismissing the application filed by the petitioner u/s 323 of Cr.P.C. has been affirmed.

The facts in brief are that complainant Bhaiyalal lodged an FIR that he alongwith his family members was in his house. The petitioners armed Lathi, Lohangi and Farsa came and started abusing. When it was objected, Pappi gave a Farsa blow on the head of the complainant. The petitioners also gave beating to Malkhan, Veerendra and Teerath Singh. During the incident, the petitioners also received some injuries and FIR was lodged by petitioner-Gyansingh on the same day, upon which Crime No.96/11 under Sections 323, 394, 506B/34 of IPC has been registered against complainant Bhaiyalal and three others. After investigation, the police has filed the charge-sheet. In the Court below, the petitioners moved an application u/s 323 of Cr.P.C. praying that both the cases are outcome of same incident and date of incident and place of incident are same, hence, both the cases be tried by the same Court, therefore, prayed for committing the case u/s 323 of Cr.P.C. Learned trial Court after going through the record, dismissed the application, against which, the petitioners preferred a criminal revision which has also been dismissed holding that place of incident and the complainant are different in both the cases, hence, the order passed by learned JMFC does not require any interference. Aggrieved with this, petitioners have filed this petition.

Learned counsel for the petitioners submits that learned Courts below have ignored the fact that if the incident is of same date and is the outcome of same incident, then both the cases should be tried by the same Court. The learned Court below further committed an error in holding that that some witnesses and complainant of both the cases are different and both the incidents are not the outcome of same incident ignoring the fact that in both the FIRs date of incident and time of incident and place of incident are same. Hence, it is prayed that order passed by both the Courts below be set aside and learned JMFC be directed to transfer Criminal Case No.1643/11 to be tried by ASJ alongwith S.T.No.286/11.

The learned Public Prosecutor appearing for the State has submitted that learned Court below have not committed any illegality in passing the order as both the incidents are entirely different, therefore, prayed for dismissal of the petition.

I have perused the FIR of both the crime numbers and Challan Papers.

On perusal of FIR of Crime No.95/11 registered at police Station, Bajrangarh, it appears that report has been lodged by Bhaiyalal alleging that on 16.6.11 at about 8.30 a.m. Jeevan, Pappi, Moolchand and Laxmansingh armed with Lathi, Lohangi and Farsa came and started abusing. When they objected, Pappi gave a Farsa blow on the head of the complainant. When Malkhan came to save, then Jeevan gave a Lathi blow. They also gave beating to Veerendra Yadav and Teerath Singh. As per the FIR of Crime No.96/11 registered at police Station Bajrangarh, it appears that report has been lodged by Gyansingh alleging that on 16.6.11 at about 8.30 am when the complainant alongwith his brother reached Khandhar of their house situated adjacent to the house of Bhaiyalal, then Bhaiyalal, Veerendra Yadav, Teerath Singh and Malkahn abused them and Bhaiyalal gave a Farsa blow on the head of the complainant. When Jeevan Singh came to save, then Veerendra and Shivraj gave Lathi blow to the complainant and Teerath and Malkhan gave beating by means of kicks and fists to Jeevan Singh.

Thus, the date, place and time of both the incidents are almost same. Some of witnesses in FIR at Crime No.95/11 are accused in Crime No.96/11 and some of the witnesses of Crime No.96/11 are accused in crime No.95/11. The Hon''ble Apex Court in the matter of Sudhir and Others etc. Vs. State of M.P. etc., has observed as under :

"The practical reasons for adopting a procedure that such cross-cases shall be tried by the same Court, can be summarized thus: (1) 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 the instant case, as noticed above had the learned Courts below closely examined both the FIRs and the facts of the cases and the law governing the cases, the position would have been different. However, both the learned Courts below have not considered the facts and circumstances of both the cases. Considering the factual aspects, it would be appropriate to direct the trial Magistrate to commit the case pending before him to the Court of Session for being tried alongwith S.T.No.286/11.

Consequently, this petition is allowed. The impugned orders are set aside. The learned JMFC is directed to commit criminal case No.1643/11 arising out of Crime No.95/11 of police Station, Bajrangarh, to the Court of Session to be tried alongwith S.T.No.286/11.