Om Prakash vs The State of Raj. and Others

G.L. Gupta, J.—The misc. petition is directed against the order dt. 11.3.1997 passed by the Additional Sessions Judge, Rajgarh whereby he upheld the order dt. 8.1.1997 passed by the learned Judicial Magistrate, Rajgarh rejecting the application of complainant petitioner Omprakash.

Mr. Beniwal, learned Counsel for the petitioner, points out that in respect of the occurrence which took place in the evening of 28.2.1996 both the parties lodged reportes on which F.I.R. Nos. 83/96 and 84/96 were registered, and the police filed challan in both the cases, and the learned Magistrate committed the case of F.I.R. 84/96 to the Court of Sessions. He contends that since the Cr. Case No. 257/96 filed on F.I.R. No. 83/96 is a cross case of the case committed to the Court of Sessions, the complainant''s application dt. 31.10.1996 for committing this case to the Court of Sessions ought to have been allowed. He submits that since both the cases arise out of one and the same incident, they should be tried by the same Judge.

Mr. Shah, learned Counsel for the respondent, does not dispute that both the F.I.Rs. were registered in respect of the same occurrence. He frankly concedes that both the cases filed on F.I.R. Nos. 83/96 and 84/96 are cross cases, and they should be tried by one and the same Judge.

I have gone through the facts of the F.I.R. Nos. 83/96 and 84/96. It is evident that in both the F.I.Rs. The incident which took place in village Gothyawadi on 28.2.1996 at 7.30 P.M. has been reported. The place of occurrence disclosed in both the F.I.Rs. is near the house of Kashi Ram Saran. The accused in one case are almost the witnesses in another case. It may be that in the F.I.Rs. the parties have stated the facts in different manner, yet it is obvious that both the F.I.Rs. are in respect of one and the same occurrence.

On the F.I.R. No. 84/96 a challan was filed u/s 307 IPC which has already been committed to the Court of Session. The case No. 257/96 is in respect of FIR No. 83/96, which is triable by Magistrate. However, if the two cases, which are cross cases, are tried by different courts, there is risk of giving two conflicting findings by the Courts. It is desirable that both the cases are tried by one Judge. It can be done if the criminal case No. 257/96 is also committed to the Court of Sessions.

Section 323 Cr.P.C. confers power on a Magistrate to commit a case to the Court of Sessions which it appears to him is one which ought to be tried by the Court of Session. For committing the case u/s 323 Cr.P.C. it is not necessary that the case should be exclusively triable by a Court of Sessions. Under that Section a case triable by Magistrate may also be committed to the Court of Sessions if situation so warrants.

Cr. Case No. 257/96 is a fit case which ought to have been committed to the Court of Sessions.

The learned Magistrate has committed grave error in rejecting the application of the complainant Om Prakash. The learned Additional Sessions Judge has also failed to consider the matter in right perspective. The impugned orders are liable to be set aside.

Consequently, the petition succeeds. It is directed that the learned A.C.J.M. Rajgarh shall pass appropriate order in Cr. Case No. 257/96 in the light of the observations made above.