The main legal point established in the judgment is that cases arising from different FIRs cannot be treated as cross cases if they do not relate to the same incident, and the delay in moving the application for clubbing can be considered a tactic to delay the conclusion of the trial.

ORDER :

Dinesh Kumar Singh, J.

1. The present petition has been filed impugning the order dated 28.08.2018 passed by the learned Trial Court rejecting the application for clubbing Sessions Trial No.95 of 2011 arising out of Case Crime No.114 of 2010 under Sections 147, 148, 149, 307 IPC and Section 7 Criminal Law Amendment Act, Police Station Naka Hindola, District Lucknow (State versus Rajendra Singh Dua) and complaint Case No.426 of 2011 arising out of Case Crime No.114A of 2010 under Sections 395, 397 IPC, Police Station Naka Hindola, District Lucknow (State versus Aswini Chhawla and others).

2. Earlier before approaching the Trial Court by filing the application on 24.08.2018, an application under Section 482 Cr.P.C. being Crl. Misc. Case No.4444 of 2016 was filed by the applicants with a prayer that both the cases may be treated as cross cases and, therefore, these cases are to be clubbed together. However, the aforesaid petition was dismissed as withdrawn vide order dated 05.7.2016 with liberty to the petitioners to move an application before the Trial Court that both cases i.e. case against them and so called cross case were required to be decided together.

3. Despite aforesaid order passed by this Court, no application was moved for clubbing aforementioned two cases till 24.08.2018. From the perusal of order dated 15.05.2017 passed by the learned Trial Court, it would be evident that an application was moved by the accused for summoning the prosecution witnesses to be examined as defence witnesses. Learned Sessions Judge, however, dismissed the said application on the ground that the accused conduct was only to delay the conclusion of trial. It was also noted by the learned Trial Court that till date even no application for clubbing two cases was moved by the accused despite liberty having been granted by the High Court. At the stage, when the arguments have been concluded on behalf of the prosecution and the case was fixed for argument by the defence, the application was moved for clubbing two cases on 24.08.2018.

4. The Trial Court held that the accused has not moved the application with clean hands but with only purpose to delay the conclusion of trial. It was held that Case Crime No.114A/2010 which the accused alleged to be the cross-case, the incident was of 18.02.2010 at 8:30 P.M. whereas the incident of the present trial i.e. Sessions Trial No.95 of 2011 took place on 18.02.2010 at 9:00 P.M. and, therefore, since the timings of both the incidents was different, the cases cannot be treated as cross cases. The trial Court was of the opinion that filing an application at this stage where the prosecution had concluded its arguments and the date was fixed for argument by the defence, the only conclusion would be the defence wanted to delay the conclusion of trial. The High Court had already directed the trial Court to conclude the trial within a period of two months in a petition moved by the complainant and that order was passed in the presence of the counsel for the accused and, therefore, the application was not a bonafide exercise. The accused did not approach the court with clean hands but they had filed the application as a tactic to delay the conclusion of the trial. In view of the aforesaid, the learned trial court dismissed the application vide impugned order.

5. The relevant facts in brief for the purpose of disposal of this petition are summarized as under:-

(i) On a complaint of Ashwini Chawla, respondent No.2 an FIR was registered at Case Crime No.114 of 2010 under Sections 395 and 397 IPC against 8 accused including the petitioners at 21:35 Hours on 18.02.2010 itself. It was alleged in the complaint that when the complainant, Ashwini Chawla at around 9:00 P.M. was closing down his shop and having his mobile and cash, on instigation of Rajendra Dua, the other accused namely, Pinki Dua, Monti Dua, Balbir Singh Dua, Surjeet Singh Dua, Shalu Dua, Sonu Dua, Bhanu Dua and 30-35 other persons armed with hockey, fire