State v. Lalji Mishra), arising out of Case Crime No on 12 Mar 2025

Judgment

1. State and perused the record. The present application under Section 482 Cr.P.C. has been filed

2. seeking following main reliefs:- "For the facts, reasons and circumstances stated in the accompanying Affidavit, it is most respectfully prayed that this Hon'ble court may kindly be pleased to set aside the impugned order dated 15.02.2025 passed by Learned III Additional District & Sessions Judge, Bahraich in Session Trial No-188/2011 (State Versus Lalji Mishra), arising out of Case Crime No. 506/2009, under section 302, 324, 323, 504, 506 IPC, Police Station- Payagpur, District- Bahraich, by which the learned trial court rejected the application dated 13.08.2024 bearing No-B 134 filed by petitioners, as contained in Annexure No.1 to this petition. It is further prayed that this Hon'ble Court may kindly be pleased to stay the further criminal proceeding of Session Trial No-188/2011 (State Versus Lalji Mishra), arising out of Case Crime No. 506/2009, under section 302, 324, 323, 504, 506 IPC, Police Station Payagpur, District- Bahraich during pendency of the instant petition, in the interest of justice. It is further prayed that this Hon'ble Court may kindly be pleased to direct the Learned trial court to decide the S.T. No. 188/2011 (State Versus Lalji Mishra), arising out of Case Crime No. 506/2009 and Case No. 18/2018 (State Versus Radheyshyam Mishra) arising out of Case Crime No.506-A/2009 registered as Cross case, and delivered the 2 judgment on the same day by the same court in the interest of justice."

3. The applicants, namely, Lalji Mishra, Ramji Mishra and Hari Prasad by means of the instant application have assailed/impeached the order dated 15.02.2025, passed by the 3rd Additional District and Sessions Judge, Bahraich (in short "trial court") in S.T. No.188 of 2011, under Sections 302, 324, 323, 504, 506 I.P.C., at Police Station Payagpur, District Bahraich arising out of Case Crime No.506/2009.

4. Vide the impugned order dated 15.02.2025, the trial court has rejected the application preferred by the applicants with the prayer to call for record of case arising out of Case Crime No.506- A/2009, under Sections 324, 323, 504, 506 I.P.C. and proceed thereafter in S.T. No.188/2011 (State Vs. Lalji Mishra). The order impugned dated 15.02.2025, is extracted herein below :- "दि(cid:2)नांक :-15.02.2025 प्ቔावली आ(cid:2)ेशा्ቕ(cid:24) पेश हुई। अभि(cid:31)यु्ሹ के दिव्ቛान अधि$व्ሹा को सुना गया। अभि(cid:31)यु्ሹगण की ओर से दिव्ቛान अधि$व्ሹा ्ቛारा ्ቚा्ቕ(cid:24)ना प्ቔ वास्ते दि(cid:2)ए जाने उधि2त आ(cid:2)ेश ्ቚस्तुत करते हुए क्ቕन दिकया गया है दिक उपरो्ሹ स्ቔ परी्ቌण का ्ቅॉस केस अ० सं० 50ÎÃA/2009 अंतग(cid:24)त $ारा 324,323,504,50ÎÃIPC का मुक(cid:2)मा अभि(cid:31)यु्ሹ दि(cid:2)नेश कुमार दिम्ቦा उ्ቛ(cid:24) लाल जी ्ቛारा रा$ेश्याम,बाबू, सन्तोष के दिवरु्ቍ (cid:2)ज(cid:24) कराई ्ቕी। जो बा(cid:2) दिववे2ना आरोप प्ቔ न्यायालय पर उ्ሹ $ाराओं के अंतग(cid:24)त ्ቚस्तुत दिकया गया है, जिजसका मुक(cid:2)मा अ$ीनस््ቕ मजिजस्ट्रेट महो(cid:2)य के न्यायालय पर लቚኌPबत है, मुक(cid:2)मे में सं्ሺान न्यायालय ्ቛारा लिलया जा 2ुका है, अ(cid:31)ी तक मुक(cid:2)मा स्ቔ न्यायालय पर सुपु(cid:2)(cid:24) नहीं दिकया गया है। न्याय्ቕ(cid:24) (cid:2)ोनों मुक(cid:2)में एक न्यायालय ्ቛारा दिनस्तारिरत दिकए जाने जरूरी हैं, इस संबं$ा में दिवधि$ व्यवस््ቕा (cid:31)ी है। अतः अभि(cid:31)यु्ሹ/्ቚा्ቕ\ की ओर से ्ቚा्ቕ(cid:24)ना प्ቔ ्ቚस्तुत करते हुए उपरो्ሹ मुक(cid:2)मा स्ቔ परी्ቌण सं०188/2011 अंतग(cid:24)त $ारा 302 सरकार बनाम लाल जी आदि(cid:2) की काय(cid:24)वाही तब तक के लिलए स््ቕदिगत की जाए जब तक ्ቅॉस केस का मुक(cid:2)मा स्ቔ न्यायालय सुपु(cid:2)(cid:24) होकर इस स्ቔ परी्ቌण के सा्ቕ सा्ቕ अदि^म काय(cid:24)वाही होकर मुक(cid:2)मे का दिनस्तारण एक सा्ቕ करने की या2ना की गई है। अभि(cid:31)यु्ሹगण ्ቛारा अपने ्ቚा्ቕ(cid:24)ना प्ቔ के सम्ቕ(cid:24)न में छाया्ቚधित ्ቚ्ቕम सू2ना रिरपोट(cid:24) अ०सं० 50ÎÃA/2009 (cid:2)ालि‘ल दिकया गया है। सुना एवं प्ቔावली का परिरशीलन दिकया। अभि(cid:31)यु्ሹगण ्ቛारा क्ቕन दिकया गया है दिक ्ቚस्तुत दिव2ारण का ्ቅॉस केस मजिजस्ट्रेट न्यायालय में लቚኌPबत है। स्ቔ न्यायालय में सुपू(cid:2)(cid:24) नहीं दिकया गया है। ्ቚस्तुत मामले काय(cid:24)वाही ्ቅॉस केस के मुक(cid:2)मे के सुपु(cid:2)(cid:24) होने व साቌኚय होने तक स््ቕदिगत की जाए। अभि(cid:31)यु्ሹगण के उ्ሹ क्ቕन के अनुसार ्ቚस्तुत दिव2ारण का ्ቅॉस केस मजिजस्ट्रेट न्यायालय पर दिव2ारणीय है। मौजू(cid:2)ा स्ቔ परी्ቌण में साቌኚय की सPपूण(cid:24) काय(cid:24)वाही हो 2ुकी है। स्ቔ परी्ቌण में उसी मामले में अभि(cid:31)योजन प्ቌ ्ቛारा दि(cid:2)ए गए साቌኚय के आ$ार पर दिनण(cid:24)य दिकया जाता है। स्ቔ परी्ቌण सन् 2011 से लቚኌPबत 3 है। साቌኚय की काय(cid:24)वाही पूण(cid:24) हो 2ुकी है। अनन्त काल के लिलए दिव2ारण को स््ቕदिगत दिकया जाना न्याय संगत नहीं है त्ቕा त्वरिरत दिव2ारण न्याय की मंशा है। माननीय उ्ሴ न्यायालय इलाहाबा(cid:2), बें2 ल‘नऊ ्ቛारा ्ቚा्ቕ(cid:24)ना प्ቔ अंतग(cid:24)त 483 सं० 88ÎÃ/2024 दिनस्तारिरत करते हुए ्ቚ्቞गत वा(cid:2) को दिवधि$ अनुसार शी्ቈतापूक(cid:24) दिनस्तारिरत दिकए जाने का आ(cid:2)ेश पारिरत दिकया है। उपरो्ሹ तथ्यों को (cid:2)े‘ते हुए ्ቚा्ቕ(cid:24)ना प्ቔ ‘ारिरज दिकए जाने योग्य है। आ(cid:2)ेश अभि(cid:31)यु्ሹगण ्ቛारा ्ቚस्तुत ्ቚा्ቕ(cid:24)ना प्ቔ ‘ारिरज दिकया जाता है। प्ቔावली वास्ते बयान अंतग(cid:24)त $ारा 313 सी.आर.पी.सी. दि(cid:2)नांक 27.02.2025 को पेश हो।" The prayer sought in the application dated 13.08.2024, which has 5. been rejected by the trial court vide impugned order dated 15.02.2025, being relevant, is extracted herein below :- "अतः ्ቦी मान जी से ्ቚा्ቕ(cid:24)ना है दिक उपरो्ሹ मुक(cid:2)मा स्ቔ परी्ቌण सं० 188/2011 $ारा -302 सरकार vs लालजी स््ቕदिगत की जाये जव तक ्ቅास केस का मुक(cid:2)मा स्ቔ न्यायालय सुपु(cid:2)(cid:24) होकर इस स्ቔ परी्ቌण के सा्ቕ सा्ቕ अदि^म काय(cid:24)वाही होकर मुक(cid:2)मे का दिनस्तारण एक सा्ቕ करने की कृपा की जावे। "

6. While impeaching the order dated 15.02.2025, impugned in the present application, learned counsel for the applicants has placed reliance upon the observations made by the Hon'ble Apex Court in the case of Nathi Lal and others Vs. State of U.P. and another, reported in 1990 Supp. SCC 145. The order referred is extracted herein below :- "1. Special leave granted. Heard both the sides.

2. We think that the fair procedure to adopt in a matter like the present where there are cross cases, is to direct that the same learned Judge must try both the cross cases one after the other. After the recording of evidence in one case is completed, he must hear the arguments but he must reserve the judgment. Thereafter he must proceed to hear the cross case and after recording all the evidence he must hear the arguments but reserve the judgment in that case. The same learned Judge must thereafter dispose of the matters by two separate judgments. In deciding each of the cases, he can rely only on the evidence recorded in that particular case. The evidence recorded in the cross case cannot be looked into. Nor can the judge be influenced by whatever is argued in the cross case. Each case must be decided on the basis of the 'evidence which has been placed on record in that particular case without being influenced in any manner by the evidence or arguments urged in the cross case. But both the judgments must be pronounced by the same learned Judge one after the other.

3. We allow this appeal partly to the aforesaid extent and direct the learned Judge to proceed with the police case and the cross case Instituted by the respondent-complainant by way of a private complaint and hold the trial in both the matters in the light of the 4 directions given hereinabove. Learned Judge will accord priority to these cross cases and dispose of both the cases expeditiously."

7. Reliance has also been placed upon the judgment passed by Hon'ble Apex Court in the case of Sudhir and others Vs. State of M.P., reported in (2002) 2 SCC 688. The relevant paragraphs are quoted herein below:- "11. In fact, many High Courts have reiterated the need to follow the said practice as a necessary legal requirement for preventing conflicting decisions regarding one incident. This Court has given its approval to the said practice in Nathi Lal v. State of U.P. [1990 Supp SCC 145 : 1990 SCC (Cri) 638] The procedure to be followed in such a situation has been succinctly delineated in the said decision and it can be extracted here: (SCC pp. 145-46, para 2) “2. We think that the fair procedure to adopt in a matter like the present where there are cross-cases, is to direct that the same learned Judge must try both the cross-cases one after the other. After the recording of evidence in one case is completed, he must hear the arguments but he must reserve the judgment. Thereafter he must proceed to hear the cross-case and after recording all the evidence he must hear the arguments but reserve the judgment in that case. The same learned Judge must thereafter dispose of the matters by two separate judgments. In deciding each of the cases, he can rely only on the evidence recorded in that particular case. The evidence recorded in the cross-case cannot be looked into. Nor can the Judge be influenced by whatever is argued in the cross-case. Each case must be decided on the basis of the evidence which has been placed on record in that particular case without being influenced in any manner by the evidence or arguments urged in the cross-case. But both the judgments must be pronounced by the same learned Judge one after the other.”

12. How to implement the said scheme in a situation where one of the two cases (relating to the same incident) is charge-sheeted or complained of, involves offences or offence exclusively triable by a Court of Session, but none of the offences involved in the other case is exclusively triable by the Sessions Court. The Magistrate before whom the former case reaches has no escape from committing the case to the Sessions Court as provided in Section 209 of the Code. Once the said case is committed to the Sessions Court, thereafter it is governed by the provisions subsumed in Chapter XVIII of the Code. Though, the next case cannot be committed in accordance with Section 209 of the Code, the Magistrate has, nevertheless, power to commit the case to the Court of Session, albeit none of the offences 5 involved therein is exclusively triable by the Sessions Court. Section 323 is incorporated in the Code to meet similar cases also. That section reads thus: “323. If, in any inquiry into an offence or a trial before a Magistrate, it appears to him at any stage of the proceedings before signing judgment that the case is one which ought to be tried by the Court of Session, he shall commit it to that court under the provisions hereinbefore contained and thereupon the provisions of Chapter XVIII shall apply to the commitment so made.”

13. The above section does not make an inroad into Section 209 because the former is intended to cover cases to which Section 209 does not apply. 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 Session. We have already adverted to the sturdy reasons 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 Session. 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.

14. Now we have to deal with the powers of the Sessions Court in the light of Section 228 of the Code which says that when the Sessions Court, after hearing under Section 227, is of the opinion that none of the offences presumed to have been committed by an accused is triable by a Court of Session he is to transfer the case for trial to the Chief Judicial Magistrate.

15. In this context, we may point out that a Sessions Judge has the power to try any offence under the Penal Code, 1860. It is not necessary for the Sessions Court that the offence should be one exclusively triable by a Court of Session. 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 Penal Code, 1860 and when a case involving offence not exclusively triable by such court is committed to the Court of Session, 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 6 Section 228(1) in the light of the above legal position. The sub- section is extracted below: “228. (1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which — (a) is not exclusively triable by the Court of Session, he may, frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate, and thereupon the Chief Judicial Magistrate shall try the offence in accordance with the procedure for the trial of warrant cases instituted on a police report; (b) is exclusively triable by the court, he shall frame in writing a charge against the accused.” (emphasis supplied)

16. 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 a 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 does not involve any such offence.

17. In the present case, the Sessions Judge ought not to have transferred the second case to the Chief Judicial Magistrate as he did, but he himself should have tried it in the manner indicated in Nathi Lal [1990 Supp SCC 145 : 1990 SCC (Cri) 638] . To facilitate such a procedure to be adopted we have to set aside the order passed by the Sessions Judge in the second case. We do so.

18. Resultantly, we allow the appeal arising out of SLP (Crl.) No. 4007 of 2000, and set aside the order of the High Court as well as the order passed by the Sessions Court by which the case was transferred to the Chief Judicial Magistrate. We direct the Sessions Court concerned to try and dispose of the first case and the second case in the manner set out in Nathi Lal case [1990 Supp SCC 145 : 1990 SCC (Cri) 638] . In view of the above direction, the impugned order in the appeal arising out of SLP (Crl.) No. 3840 of 2000, will remain undisturbed." 7

8. Based upon the observations made by Hon'ble Apex Court in the case of Nathi Lal and others Vs. State of U.P. and another and Sudhir and others Vs. State of M.P. (supra), learned counsel for the applicants submitted that the impugned order is liable to be set aside and the trial court be directed to decide both the cases i.e. S.T. No. 188/2011 (State Vs. Lalji Mishra) arising out of Case Crime No. 506 of 2009 and Case No.18/2018 (State Versus Radheyshyam Mishra), arising out of Case Crime No.506-A/2009 as observed by Hon'ble Apex Court.

9. Learned A.G.A. has opposed the present application by submitting that at this stage of the proceedings, it appears that the applicants have moved the application with oblique motive to delay the conclusion of Session Trial No-188/2011 (State Versus Lalji Mishra), arising out of Case Crime No. 506/2009, under sections 302, 324, 323, 504, 506 IPC, Police Station- Payagpur, District- Bahraich, which is at the stage of recording of the statement under Section 313 Cr.P.C. (now repealed) akin to Section 351 of BNSS, 2023. I have considered the submissions of learned counsel for the

10. parties and perused the material placed on record.

11. Upon due consideration of the submissions of learned counsel for the parties, this Court finds that the impugned order does not require any interference. It is for the following reasons :- (i) the informant of the F.I.R. No.506/2009, namely Babu sustained injuries and subsequently he succumbed to injuries sustained, indicated the name of the applicants in the F.I.R. and according to this F.I.R. the injury of Kudal was sustained by the informant Babu, who succumbed to injuries sustained by him in the incident. (ii) The trial of Case Crime No.506-A/2009 has yet not started. (iii) As per the observations of the Hon'ble Apex Court the evidence recorded in the cross case can not be looked into. (iv) In the Session Trial No.188 of 2011 (State Vs. Lalji Mishra), arising out of Case Crime No.506 of 2009, all the witnesses of prosecution have been examined and this case is at the stage of recording of statement of the accused persons in terms of Sections 313 Cr.P.C. 8 (vi) The application has been moved just to delay the conclusion of the Session Trial No.188 of 2011. (vii) The trial has been expedited by this Court vide order dated 16.12.2024 passed in A-483 No.886/2024 (Radhey Shyam Vs. State of U.P. and others). In view of the above facts and reasons, the instant application is

12. hereby dismissed.

13. Cost is made easy. Order Date :- 12.3.2025 ML/- MUNNA LAL High Court of Judicature at Allahabad, Lucknow Bench