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Judgment
G. Rajasuria, J.—Crl. O.P (MD) No. 9548 of 2010 has been filed to call for records in C.C. No. 116 of 2010 dated 4.5.2010 pending before the learned District Munsif cum Judicial Magistrate, Vadipatti and quash the same as illegal.
Crl. O.P (MD) No. 12781 of 2010 has been filed to direct the Respondent No. 1 to serve the referral notice to the Petitioner in respect of Crime No. 50 of 2010 on the file of the Respondent No. 2 registered u/s 3(i)(x) of Scheduled Tribes (Prevention of Atrocities) Act, 1989 filed by the Petitioner and keep the proceedings in C.C. No. 116 of 2010 pending before the District Munsif Cum Judicial Magistrate, Vadipatti filed by the Respondent No. 1 in Crime No. 49 of 2010 under Sections 147, 294(b), 323, 506(i) of IPC in abeyance until both the proceedings are taken together by the Judicial Magistrate, Vadipatti.
Concisely and precisely, the relevant facts absolutely necessary for the disposal of these petitions, would run thus:
The police registered the case in Crime No. 49 of 2010 for the offence under Sections 147, 341, 323, 294(b) and 506(i) I.P.C., consequent upon the complaint lodged by one Ramesh, the Junior Officer of the Fenner Conveyer Belting Division Private Ltd., to the effect that some employees of Fenner (India) Labour Union committed rioting and also uttered filthy words. It appears that the police conducted the investigation into the matter and laid the charge sheet in C.C. No. 116 of 2010 before learned District Munsif Cum Judicial Magistrate, Vadipatti and the same is pending as the charges have not yet been framed.
Whereas the learned Government Advocate (Criminal Side) would submit that relating to the Crime No. 50 of 2010, the Deputy Superintendent of Police dropped action after serving notice to the de-facto complainant.
Crl. O.P. (MD). No. 9548 of 2010 has been filed by the accused in C.C. No. 116 of 2010 (Crime No. 49 of 2010) for getting the charge sheet quashed on the ground that the case itself is fraught with falsity and it is not worthy of being processed as per law.
Crl. O.P. (MD). No. 12781 of 2010 has been filed for the purpose of getting a direction to get served the referral notice to the Petitioner in respect of Crime No. 50 of 2010 and also to get the connected case in C.C. No. 116 of 2010 kept in abeyance till the case in Crime No. 49 of 2010 is processed finally.
Heard both sides.
The gist and kernel of the arguments as put forth on the side of the learned Counsel for the Petitioners in both the petitions would be to the effect that both the cases are inter-linked and interwoven and it cannot be viewed separately; however, the police did choose to treat them separately and went to the extent of filing the charge sheet in Crime No. 49 of 2010; and the police simply dropped the action unjustifiably without even giving the referral notice in Crime No. 50 of 2010.
Whereas the learned Counsel for the de-facto complainant in C.C. No. 116 of 2010 (Crime No. 49 of 2010) would put forth and set forth his argument which could be pithily and precisely set out thus:
The accused in C.C. No. 116 of 2010 cannot try to get the matter adjourned abnormally and ad infinitum and as though they allegedly got aggrieved by the referral of the case by the Deputy Superintendent of Police in Crime No. 50 of 2010. According to the learned Counsel for the de-facto complainant in C.C. No. 116 of 2010, the said case in Crime No. 50 of 2010 invoking the provisions of Schedule Caste and Schedule Tribe (Prevention of Atrocities) Act, is having nothing to do with the case in C.C. No. 116 of 2010 wherein the de-facto complainant is neither an accused in Crime No. 50 of 2010 nor a witness. In such a case, the Petitioner cannot try to stall the proceedings and the learned District Cum Judicial Magistrate, should be allowed to proceed with the case in C.C. No. 116 of 2010.
The fact remains that the occurrences which are the subject matters of both the crime numbers happened on one and the same day i.e., on 16.02.2010; however, there is allegedly half-an-hour gap between the time of occurrences. Moreover, in matters of this nature, the said half-an-hour difference shown between the occurrences covered under the respective two F.I. Rs, could be taken as material or immaterial, depending upon various factors and there are decided cases also in that regard. So, it is the duty of the learned Magistrate to look into those aspects thoroughly and arrive at a conclusion.
Now, the case in Crime No. 50 of 2010 is alleged to have been referred as mistake of fact.
The learned Counsel for the de-facto complainant in Crime No. 50 of 2010 would submit that no referral notice was served on his client.
Taking into consideration the relevant factors set out supra, I am of the considered view that one more opportunity should be given to the de-facto complainant, namely, T. Rajasekaran in Crime No. 50 of 2010 to file protest petition before the Magistrate concerned within a period of one week from the date of receipt of a copy of this order; whereupon the learned Magistrate is expected to take up the protest petition and consider the same cutting across limitation point. The learned Magistrate is enjoined to consider specifically inter alia the following:
(i) Whether unjustifiably the Deputy Superintendent of Police referred the case in Crime No. 50 of 2010 as mistake of fact;
(ii) while doing so, the learned Magistrate shall keep in mind the following decisions:
(a) Abhinandan Jha and Others Vs. Dinesh Mishra, .
(b) H.S. Bains, v. The State Union Territory of Chandigarh, reported in AIR 1980 Supreme Court 1883.
(c) Tula Ram and Others Vs. Kishore Singh, .
(d) Ram Lal Narang Vs. State (Delhi Administration), .
(e)Rameshbhai Pandurao Hedau v. State of Gujarat reported in (2010) 2 SCC 801.
(f) Kunga Nima Lepcha and Ors. v. State of Sikkim and Ors.
(g) Rubabbuddin Sheikh v. State of Gujarat and Ors. reported in (2010) 2 SCC 1006 : (2010) 2 SCC 878.
(iii) While considering so, the Magistrate should also see as to whether there is any nexus between C.C. No. 116 of 2010 (Crime No. 49 of 2010) and the case in Cr. No. 50 of 2010 and if he finds that both the incidents are different, then without any further loss of time, he has to proceed with the case in C.C. No. 116 of 2010. But on the other hand, if he considers that the case in C.C. No. 116 of 2010 (Crime No. 49 of 2010) and the case in Cr. No. 50 of 2010 are having close nexus, even though they did not occur as part of the same transaction, then he should refer to the following decisions:
(a) State of M.P v. Mishrilal reported in 2003 SCC 1829.
(b) Sudhir and Others etc. Vs. State of M.P. etc., .
(c) Nathilal and Ors. v. State of U.P. and Anr. reported in 1990-Supreme Court Cases (Crl) 638. An excerpt from it, would run thus:
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
(iv) On the other hand, if the Magistrate feels that both the cases are integral part of one and the same incident, then it is his duty to find out as to who is the aggressor and one case has to be dropped and the other has to be processed further. As such, it is the duty of the Magistrate without any bias or prejudice to apply his mind to the facts and circumstances involved in C.C. No. 116 of 2010 (Crime No. 49 of 2010) and the case in Crime No. 50 of 2010 and process the matters in the light of the above observations made by this Court within a period of one month from the date of receipt of a copy of this order.
In the result, both the Criminal Original Petitions are disposed of. Consequently, the connected Miscellaneous Petitions are closed.