Case Note & Summary
The petitioner, Dr. Sanjeev Kumar Hiremath, was the first informant in Crime No.200/2017 registered at Jayanagar Police Station against respondent Dr. Raghavendra for offences under Sections 341, 324, 504, and 506 of the Indian Penal Code, 1860, arising from an incident on 10.07.2017. After investigation, a charge-sheet was filed and the case was numbered as C.C.No.23250/2018 before the II Additional Chief Metropolitan Magistrate, Bengaluru, as the offences were triable by a Magistrate. A counter complaint by the respondent against the petitioner and his father for the same incident led to Crime No.201/2017, with a charge-sheet for offences under Sections 323 and 324 IPC and Sections 3(1)(r) and 3(1)(s) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. This counter case was numbered as Spl C.C.No.35/2018 and was pending before the LXX Additional City Civil and Sessions Judge (Special Court), Bengaluru. Seeking to avoid conflicting judgments, the petitioner filed an application under Section 408 of the Code of Criminal Procedure, 1973, before the Sessions Court, which was dismissed on 19.11.2021 on the ground that a Sessions Judge could not call for a case from a Magistrate without formal committal. The petitioner then moved the High Court under Section 407 Cr.P.C. The respondent contended that the petitioner should have applied under Section 323 Cr.P.C. for committal. The court observed that Section 323 Cr.P.C. empowers a Magistrate to commit a case only when it is exclusively triable by the Court of Sessions, which did not apply here. Relying on the Supreme Court decisions in State of M.P. v. Mishrilal (2003) 9 SCC 426 and Nathi Lal v. State of U.P. 1990 Supp SCC 145, the court reiterated the settled principle that cross-cases must be tried by the same judge to prevent inconsistent verdicts. The High Court held that the transfer was permissible under Section 407 Cr.P.C. and allowed the petition, directing the transfer of C.C.No.23250/2018 from the Magistrate to the Special Court and ordering the Magistrate to commit the case so that both cases could be tried together in accordance with law.
Headnote
A) Criminal Procedure - Joint Trial of Case and Counter Case - Principle for Fair Trial - Code of Criminal Procedure, 1973, Sections 407, 408 - The Supreme Court in State of M.P. v. Mishrilal and Nathi Lal v. State of U.P. held that in cross-cases arising from the same incident, both must be tried by the same judge to prevent conflicting judgments, even if the cases involve different offences and are triable by different courts; evidence in each case must be considered independently and judgments pronounced one after the other (Paras 7-8).
B) Criminal Procedure - Transfer of Cases - Power under Section 407 Cr.P.C. - Code of Criminal Procedure, 1973, Section 407 - Where a case is pending before a Magistrate for offences triable by him and a counter case is pending before a Special Court for offences under the SC/ST Act, the High Court can transfer the Magistrate's case to the Special Court under Section 407 Cr.P.C. to enable joint trial and avoid conflicting judgments; the Magistrate is directed to commit the case to the Special Court (Paras 6, 8, and Order).
C) Criminal Procedure - Committal - Section 323 Cr.P.C. Not Applicable - Code of Criminal Procedure, 1973, Section 323 - Section 323 Cr.P.C. does not apply to a situation where the Magistrate's case is not exclusively triable by the Court of Sessions; therefore, an application under Section 323 would not be the proper remedy for joint trial (Para 6).
Issue of Consideration
Whether a case pending before a Magistrate for offences triable by him can be transferred to a Special Court for joint trial with a counter case involving offences under the SC/ST Act, to avoid conflicting judgments.
Final Decision
Petition allowed. C.C.No.23250/2018 pending before II Additional Chief Metropolitan Magistrate transferred to LXX Additional City Civil and Sessions Judge, Bengaluru City. Magistrate directed to commit the case to the Sessions Court. Both cases to be tried together in accordance with law.
Law Points
- case and counter case must be tried by the same court to avoid conflicting judgments
- evidence in each case to be considered separately
- Section 407 Cr.P.C. can be used to transfer a case pending before Magistrate to Special Court for joint trial
- Section 323 Cr.P.C. not applicable when Magistrate's case is triable by him
Case Details
2023 LawText (KAR) (03) 48
Criminal Petition No. 2459 of 2022
Raghavendra K. for petitioner; K. Nageshwarappa, HCGP for R1; Shrikant Badaradinni for R2
Dr. Sanjeev Kumar Hiremath
State of Karnataka & Dr. Raghavendra
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Nature of Litigation
Criminal petition for transfer of a case from one court to another for joint trial.
Remedy Sought
Petitioner (first informant) sought transfer of C.C.No.23250/2018 from II Additional Chief Metropolitan Magistrate to LXX Additional City Civil and Sessions Judge to be tried together with Spl C.C.No.35/2018.
Filing Reason
To ensure both case and counter case arising from the same incident are tried by the same court to avoid conflicting judgments.
Previous Decisions
Earlier petition under Section 407 Cr.P.C. (Crl.P. 8468/2019) withdrawn with liberty; then application under Section 408 Cr.P.C. before Sessions Court dismissed on 19.11.2021 on ground that Sessions Judge cannot call a case from Magistrate without formal committal.
Issues
Whether the High Court can transfer a case pending before a Magistrate for offences triable by him to a Special Court for joint trial with a counter case involving offences under the SC/ST Act under Section 407 Cr.P.C.
Whether Section 323 Cr.P.C. is the proper remedy for committal in such circumstances.
Submissions/Arguments
Petitioner contended both cases arise from same incident and should be tried together to avoid conflicting judgments; relied on Supreme Court decisions in State of M.P. v. Mishrilal and Nathi Lal v. State of U.P.
Respondent argued petitioner should have moved under Section 323 Cr.P.C. for committal instead of seeking transfer.
Ratio Decidendi
In cases arising from the same incident involving cross-complaints, both the case and counter case must be tried by the same court to avoid conflicting judgments, even if the cases involve different offences and are triable by different courts. The High Court under Section 407 Cr.P.C. has the power to transfer a case pending before a Magistrate to a Special Court for the purpose of joint trial. Section 323 Cr.P.C. is not the appropriate remedy when the offence before the Magistrate is not exclusively triable by the Court of Sessions.
Judgment Excerpts
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 the 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.'
In plethora of judgments it is held that a case and a counter case have to be tried together by the same court irrespective of the nature of offences involved. The rationale behind this is to avoid conflicting judgments over the same incident.
Procedural History
On 10.07.2017, an incident led to two cross FIRs: Crime No.200/2017 by petitioner against respondent 2, and Crime No.201/2017 by respondent 2 against petitioner and his father. Charge-sheets resulted in C.C.No.23250/2018 before the Magistrate for IPC offences, and Spl C.C.No.35/2018 before the Special Court for IPC and SC/ST Act offences. Petitioner earlier filed Crl.P. No.8468/2019 under Section 407 before High Court, withdrawn with liberty. Petitioner then filed Criminal Misc No.4647/2021 under Section 408 before Sessions Court, dismissed on 19.11.2021. Present Criminal Petition No.2459/2022 filed under Section 407 Cr.P.C. before High Court. On 13.03.2023, High Court allowed the petition and directed transfer and committal.
Acts & Sections
- Indian Penal Code, 1860: 341, 324, 504, 506, 323
- Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989: 3(1)(r), 3(1)(s)
- Code of Criminal Procedure, 1973: 407, 408, 323
