IMPORTANT POINT
Rule of audi alteram partem requires that opportunity of hearing should be afforded before an order is passed on judicial side.

JUDGMENT

Rajeev Misra, J.—

Ref: Criminal Misc. Recall Application No. 4345 of 2017

This application under Section 482 Cr.P.C. has been filed by applicant-Jaspreet Singh Garewal (a co-accused) challenging the order dated 02.12.2016 passed by Additional Sessions Judge, Court No.1, Bareilly in Sessions Trial No.123 of 2013 (State Vs. Nirmal Singh Garewal and others) under Sections 452 and 307 I.P.C. P.S. Kotwali Bareilly, District-Bareilly arising out of Case Crime No. 2568 of 2012 under Sections 452, 307 I.P.C. P.S. Kotwali Bareilly, District-Bareilly, whereby application (Paper No. 309 Kha) filed by accused under Section 309 Cr.P.C. has been rejected.

2. It transpires from record that during pendency of S.T. No. 123 of 2013 (State Vs. Nirmal Singh Garewal and 2 others) one of the accused Nirmal Singh Garewal, the applicant herein, filed an application under Section 309 Cr.P.C. (Paper No. 309 Kha) praying therein that S.T. No. 123 of 2013 (State Vs. Nirmal Singh Garewal and others) under Sections 452 and 307 I.P.C. P.S. Kotwali Bareilly, District-Bareilly arising out of Case Crime No. 2568 of 2012 under Sections 452, 307 I.P.C. P.S. Kotwali Bareilly, District-Bareilly be tried alongwith Complaint Case No. 1716 of 2016 (Nirmal Singh Garewal Vs. Nitin Jaiswal and others) under Sections 307, 436, 392, 380, 504 and 506 I.P.C., P.S. Kotwali Bareilly, District-Bareilly, arising out of Case Crime No. 2675 of 2012 under Sections 307, 452, 427, 504, 506, 380, 426 and 392 I.P.C., P.S. Kotwali Bareilly, District-Bareilly, as both the cases are cross cases.

3. The aforesaid application was opposed by opposite party no.2 herein namely Nitin Jaiswal. Accordingly, an objection (Paper No. 323 Kha) was filed by opposite party no.2 opposing the aforesaid application.

4. The Additional Sessions Judge Court No.1, Bareilly, vide order dated 02.12.2016 rejected the aforesaid application (Paper No. 309 Kha) filed by accused-applicant Nirmal Singh Garewal. While rejecting the application (Paper No. 309 Kha), Court below has held that evidence has been recorded and trial is at the stage of Section 313 Cr.P.C. Secondly, it would not be appropriate to try Complaint Case No. 1716 of 2016 (Nirmal Singh Garewal Vs. Nitin Jaiswal and others) under Sections 307, 436, 392, 380, 504 and 506 I.P.C., arising out of Case Crime No. 2675 of 2012, under Sections 307, 452, 427, 504, 506, 380, 426 and 392 I.P.C. alongwith the present Sessions Trial as according to accused-applicant Case Crime No. 2675 of 2012 is pending consideration before the Magistrate. In the aforesaid complaint case the accused have not yet appeared, nor the concerned Magistrate has passed any such order on the basis of which, it could be said that Case Crime No. 2675 of 2012 is cross version of Case Crime No. 2568 of 2012. Moreover, the complaint case has not yet been committed to the Court of Sessions. Further, without perusal of record of Complaint Case No. 1716 of 2016 (Nirmal Singh Garewal Vs. Nitin Jaiswal and others) under Sections 307, 436, 392, 380, 504 and 506 I.P.C., it cannot be said that above mentioned complaint case is a cross case. Lastly, the record of the complaint case cannot be summoned as the Hon’ble High Court has directed for early disposal of the Sessions Trial itself and if possible on day to day basis. For ready reference order dated 23.07.2015 which has been referred to in the order dated 02.12.2016 is reproduced herein-under:

“Heard learned counsel for the applicant and the learned AGA and have been taken through the record.

By means of the present application under section 482 Cr.P.C. the applicant has invoked inherent jurisdiction of this Court with a prayer to direct the court concerned to conclude the Sessions Trial No 123 of 2013 arising out of Case Crime No. 2568 of 2012 under section 452/307 IPC, Police Station Kotwali District Bareilly pending in the court of learned Addl. District & Sessions Judge, Court No.1 Bareilly.

It is submitted by the learned cou