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2001 (1) JLJ 344
(SUPREME COURT)
K.T. Thomas and R.P. Sethi, JJ.
Sudhirand others v. State of M.P.
Cr. Appeal No. 135 of 2001 against the order of M.P. High Court passed in
Criminal Revision No. 402 of 2000; Decided on 2.2.2001.
(2) Criminal Trial -- two criminal cases arising out of one and same incident -- should be tried by one and same Court -- Legislature should make provision for the same. AIR 1930 Mad. 190 approved. (1990) supp. SCC 145 relied on. Order of High Court reversed. [Paras 10, 11 & 12
(3) Criminal P.C., 1973 -- Ss. 209, 323 and Chap XVIII -- cases exclusively triable by Sessions Court are committed to that Court by Magistrate under S. 209 -- cross-case though not exclusively triable by Sessions Court is committed by Magistrate exercising powers under S. 323 -- on commitment Chapter XVIII governs both the cases.
When a Magistrate has committed a case on account of his legislative compulsion by section 209, its cross-case, having no offence, exclusively triable by the Sessions Court must appear to the Magistrate as one which ought to be tried by the same Court of Sessions. We have already adverted to the sturdy reasons as to why it should be so. Hence, the Magistrate can exercise the special power conferred on him by virtue of section 323 of the Code when he commits the cross-case also to the Court of Sessions. Commitment under sections 209 and 323 might be through two different channels, but once they are committed their subsequent flow could only be through the stream channelised by the provisions contained in Chapter XVIII. [Para 14
(4) Criminal P.C., 1973 -- Ss. 26 and 228(1) -- Sessions Judge has power to try any offence under IPC -- on commitment he has exercise discretion which case would be tried by him and which by the CJM.
A Sessions Judge has the power to try any offence under the Indian Penal Code. It is not necessary for the Sessions Court that the offence should be one exclusively triable by a Court of Sessions. This power of the Sessions Court can be discerned from a reading of section 26 of the Code. When it is realised that the Sessions Judge has the power to try any offence under the Indian Penal Code and when a case involving offence not exclusively triable by such Court is committed to the Court of Sessions; the Sessions Judge has to exercise a discretion regarding the case which he has to continue for trial in his Court and the case which he has to transfer to the Chief Judicial Magistrate, for this purpose, we have to read and understand the scope of section 228(1) in the light of the above legal position. [Para 16
(5) Criminal P.C., 1973 -- S. 228 (1)(a) -- employment of word "may" at one place and word "shall" at another place in same sub-section -- unmistakably indicates that even if the offence is not triable exclusively by Sessions Court it is not mandatory to transfer the same to CJM.
The employment of the word "may" at one place and the word "shall" at another place in the same sub-section unmistakably indicates that when the offence is not triable exclusively by the Sessions Court, it is not mandatory that he should order transfer of the case to the Chief Judicial Magistrate after framing a charge. In situations where it is advisable for him to try such offence in his Court, there is no legal obligation to transfer the case to the Chief Judicial Magistrate. One of the instances for not making the transfer is when a case and counter-case have been committed to the Sessions Court and one of those cases involves an offence exclusively triable by the Sessions Court and the other docs not involve any such offence. Order of High Court reversed. [Para 17
¼1½ nkafMd fopkj.k && ,d&gh ?kVuk ls lacaf/kr nks nkafMd ekeys && ,d&gh U;k;ky; }kjk ,d&lkFk fopkj.k fd;k tkuk pkfg, && nksuksa ekeyksa esa fu.kZ; ,d&gh fnu lquk;k tkuk pkfg,A 1929 enzkl ohDyh uksV~l 881 vuqeksfnrA ¿ iSjk 9 ¼2½ nkafMd fopkj.k && ,d&gh ?kVuk ls mn~Hkwr nks nkafMd ekeys && ,d&gh U;k;ky; }kjk fopkj.k fd;k tkuk pkfg, && fo/kku eaMy }kjk blds fy, mica/k cuk, tkuk pkfg,A , vkb vkj 1930 enzkl 190 vuqeksfnrA ¼1990½ lIyh- ,l lh lh 145 voyafcrA mPp U;k;ky; dk vkns‘k myVk x;kA ¿ 10] 11 ,oa 12 ¼3½ naM izfØ;k lafgrk] 1973 && /kkjk 209] 323 rFkk v/;k; 18 && ls‘ku U;k;ky }kjk vuU;r% fopkj.kh; ekeys eftLVªsV }kjk /kkjk 209 ds v/khu ml U;k;ky; ds lqiqnZ fd, tkrs gSa && izfr&ekeyk ;|fi ls‘ku U;k;ky; }kjk vuU;r% fopkj.kh; ugha gS rFkkfi eftLVªsV }kjk /kkjk 323 ds v/khu ‘kfDr;k¡ iz;qDr dj lqiqnZ fd;k tkrk gS && lqiqnZxh gksus ij nksuksa ekeys v/;k; 18 }kjk fofu;fer gksrs gSaA tc eftLVªsV us /kkjk 209 ds v/khu viuh fo/kk;h vfuok;Zrk ds dkj.k ekeyk lqiqnZ fd;k gks rc ls‘ku U;k;ky; }kjk vuU;r% fopkj.kh; vijk/k jfgr mldk izfr&ekeyk vo‘; gh eftLVªsV dks ,slk ekeyk izrhr gksxk ftldk fopkj.k mlh ls‘ku U;k;ky; }kjk fd;k tkuk pkfg,A geus igys gh bl ckjs esa Bksl dkj.kksa dk mYys[k fd;k gS fd ,slk D;ksa gksuk pkfg,A vr% izfr&ekeyk Hkh ls‘ku U;k;ky; ds lqiqnZ djrs le; eftLVªsV lafgrk dh /kkjk 323 ds vk/kkj ij mls iznÙk fo‘ks"k ‘kfDr iz;qDr dj ldrk gSA /kkjk 209 rFkk 323 ds v/khu lqiqnZxh nks fHkUu ek/;eksa ls gks ldrh gS ijarq mUgsa ,d ckj lqiqnZ dj fn;k tk, rc mudk i‘pkr~orhZ izokg] v/;k; 18 esa varfoZ"V mica/kksa }kjk iz.kkfyr izokg ds ek/;e ls gh gks ldrk gSA ¿ iSjk 14 ¼4½ naM izfØ;k lafgrk] 1973 && /kkjk 26 rFkk 228¼1½ && ls‘ku U;k;k/kh‘k dks naM lafgrk ds v/khu fdlh Hkh vijk/k dk fopkj.k djus dh ‘kfDr gS && lqiqnZ fd, tkus ij mls foosdkf/kdkj iz;qDr djuk gksrk gS fd dkSu&ls ekeys ij mlds }kjk fopkj.k fd;k tk,xk] dkSu&ls ij eq[; U;kf;d eftLVªsV }kjkA ls‘ku U;k;k/kh‘k dks Hkkjrh; naM lafgrk ds v/khu fdlh Hkh vijk/k dk fopkj.k djus dh ‘kfDr gSA ls‘ku U;k;ky; ds fy, vko‘;d ugha gS fd vijk/k ls‘ku U;k;ky; }kjk vuU;r% fopkj.kh; gksA ls‘ku U;k;ky; dh ;g ‘kfDr] lafgrk dh /kkjk 26 ds ikB ls Kkr gksrh gSA tc ;g le> fy;k tk, fd ls‘ku U;k;k/kh‘k dks Hkkjrh; naM lafgrk ds v/khu fdlh Hkh vijk/k dk fopkj.k djus dh ‘kfDr gS rFkk tc ls‘ku U;k;ky; dks ,slk ekeyk lqiqnZ fd;k tk, ftlesa ,sls U;k;ky; }kjk vuU;r% fopkj.kh; vijk/k varoZfyr ugha gks] rc ls‘ku U;k;k/kh‘k dks bl ckjs esa foosdkf/kdkj iz;qDr djuk gksrk gS fd dkSu&lk ekeyk mlds U;k;ky; esa pysxk vkSj dkSu&lk ekeyk mls eq[; U;kf;d eftLVªsV dks varfjr djuk gksxkA bl iz;kstu ds fy, gesa /kkjk 228¼1½ dh O;kfIr dks mi;qZDr fof/kd fLFkfr ds izdk‘k esa i<+uk rFkk le>uk gksxkA ¿ iSjk 16 ¼5½ naM izfØ;k lafgrk] 1973 && /kkjk 228¼1½¼d½ && ,d&gh mi/kkjk esa ,d LFkku ij ‘‘kCn ^^ldsxk** dk iz;ksx rFkk vU; LFkku ij ‘‘kCn ^^gksxk** dk && Li"Vr% minf‘kZr gksrk gS fd vijk/k vuU;r% ls‘ku U;k;ky; }kjk fopkj.kh; ugha gks rc Hkh mls eq[; U;kf;d eftLVªsV dks varfjr djuk vkKkid ugha gSA ,d&gh mi/kkjk esa ,d LFkku ij ‘‘kCn ^^vFkok** ds iz;ksx rFkk vU; LFkku ij ‘‘kCn ^^gksxk** ds iz;ksx ls Li"Vr% minf‘kZr gksrk gS fd tc vijk/k vuU;r% ls‘ku U;k;ky; }kjk fopkj.kh; ugha gks rc vkKkid ugha gS fd og vkjksi fojfpr djus ds i‘pkr~ ekeyk eq[; U;kf;d eftLVªsV dks varfjr djus dk vkns‘k djsA ,slh ifjfLFkfr;ksa esa ekeyk eq[; U;kf;d eftLVªsV dks varfjr djus dh dksbZ fof/kd ck/;rk ugha gS ftuesa ,sls vijk/k ij mlds }kjk vius U;k;ky; esa fopkj.k fd;k tkuk mfpr gksA varj.k ugha djus dk ,d mnkgj.k og gS tc dksbZ ekeyk rFkk izfr&ekeyk ls‘ku U;k;ky; ds lqiqnZ fd, x, gksa rFkk muesa ls ,d ekeys esa ,slk dksbZ vijk/k varofyZr ugha gksA mPp U;k;ky; dk vkns‘k myVk x;kA ¿ iSjk 27
Thomas, J. -- 1. Leave granted.
2. A grey area is sought to be replenished with a judicial pronouncement. A case and counter case, both were committed to the Court of Sessions as both cases involve offences triable exclusively by Sessions Court. But after hearing the preliminary arguments, the Sessions Judge felt that in one case no offence triable exclusively by a Court of Sessions is involved, whereas in the other case a charge for offences including one triable exclusively by the Sessions Court could be framed. Is it necessary, in such a, situation, that the Sessions Court should transfer the former case to the Chief Judicial Magistrate for trial as envisaged in section 228(1) of the Code of Criminal Procedure (for short 'the Code')? This is the core issue which has come up to the fore in these appeals.
3. For understanding the question better, it is necessary to have a short resume of the facts.
4. An encounter took place on the night of 18.2.1996, at a particular place near Bhitar Bazar, Sagar, Madhya Pradesh, in which firearms and other weapons were used and persons were injured. The details of the incident are not relevant and hence skipped. Two rival versions reached the police station regarding the above incident and two First Information Reports were registered upon those rival versions by the Officer-in-Charge of the police station. FIR No. 92 of 1996 was registered against 24 persons arrayed in it as accused (for convenience this can be referred to as 'the first case') and FIR No. 93 of 1996 was registered against six persons (this can be referred to as 'the second case' for convenience). Both cases were investigated together by the police and ultimately challans were laid in both cases alleging offences under section 307 read with section 149 besides some other offences of the Indian Penal Code in both the cases. The Magistrate before whom the challans were filed completed the inquiry proceedings and committed both cases to the Sessions Court for trial. Thus far the two cases flocked together side by side.
5. In the Sessions Court, the first case was taken up under section 227 of the Code and the Court framed charge against the accused for offences under section 307 read with sections 149, 147 and 427, IPC. When the preliminary arguments in the second case were heard under section 227 of the Code, the Sessions Judge found that no offence triable exclusively by a Court of Sessions need be included in the charge and hence he framed a charge as envisaged in section 228 (1)(a) of the Code for the offence under section 324 read with section 149 and certain other counts of the Indian Penal Code. Thereafter he transferred the second case for trial to the Chief Judicial Magistrate as provided in section 228(1) of the Code.
6. The accused in the first case moved the High Court in revision contending that no offence under section 307, IPC is made out against them and further contended that the Court should have included the offence under section 307, IPC also in the charge framed in the second case. A Single Judge of the High Court dismissed the revision petition by order dated 30.6.2000, in which the learned Judge observed, inler alia, thus:
"The charge in each criminal case is framed on the basis of materials available in the records of the particular case. Merely because the charge for offence under section 307, IPC has not been framed in the counter case, the petitioners do not become entitled to be discharged for the offence under section 307, IPC, if they are otherwise liable to be charged for the offence under that section in view of the materials placed before the learned Judge."
7. In the meanwhile, the State of Madhya Pradesh moved the High Court in revision challenging the order by which the Sessions Court declined to frame charge under section 307, IPC as against the accused in the second case. The said revision petition was separately dealt with by the High Court and the same learned Single Judge dismissed th
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