JUDGMENT
P.N. Sinha, J.
1. This revisional application under Section 401 read with Section 482 of the Code of Criminal Procedure (hereinafter called the Code) has been preferred by the petitioner assailing the order dated 17.1.04 passed by the learned Additional District and Sessions Judge, Fast Track Court No. 1 at Barasat in Sessions Trial No. 6(1) of 2004 corresponding to Sessions Case No. 31(5) of 2003 arising out of complaint case No. 982 of 1999 and thereby discharging the accused opposite parties 2 to 12 from the alleged offence under Section 304 of the Indian Penal Code (hereinafter called the IPC) and rejecting petitioners prayer to frame charge under Section 304 of IPC against the said accused persons.
2. Before entering into the merit of the case it would be fruitful to narrate the facts of the case, in short, which are as follows:
The petitioner as complainant submitted a complaint before the learned Sub-Divisional Judicial Magistrate (hereinafter called as SDJM), Barrackpore against the accused opposite parties on 26.4.93 for sending the petition of complaint to O.C., Titagarh P. S. for investigation under Section 156(3) of the Code treating the petition of complaint as FIR. It was alleged in the complaint that on 23rd April, 1993 the accused opposite parties lead by accused parties 2, 3, 4 and 8 were cutting and removing bamboos from bamboo grove of Baro Kanthalia Masjid compound when the complainant and his associates raised objection. The accused opposite parties started to assault Md. Ali, father of the complainant and the accused No. 1 made an attempt to assault Asraf Ali, the elder brother of petitioner with a sword but Asraf Ali sat down and the sword struck Abdul Gaffar @ Gopur who was standing nearby and he died at spot. Accused No. 1 thereafter assaulted Lutfar, another brother of complainant with sword which resulted severe injuries on his arm and accused No. 2 assaulted Jabbar Ali another brother of complainant with iron rod causing grievous injury on his left eye. All the injured persons were admitted at B. N. Bose Hospital at Barrackpore for treatment. In the complaint it was mentioned that on the date of occurrence at about 6.30 a.m. a diary was lodged at Titagarh Police Station by the complainant apprehending some disturbances over issue of cutting of bamboos. After the incident under the leadership of accused Nos. 1,2, 3, 4 and 8 the accused opposite parties set fire to the cow-shed of complainant and looted away household articles and gold ornaments worth of Rs. 20,000/-. Learned SDJM sent the petition of complaint to O.C., Titagarh P.S. for investigation under Section 156(3) of the Code treating the complaint as FIR and on the basis of it Titagarh P.S. Case No. 134 of 1993 was registered for investigation.
3. After completing investigation the Investigating Officer (hereinafter called the I.O.) of the case submitted final report, being final report No. 74 dated 28.2.94 in the Court of the learned SDJM, Barrackpore. After receiving the final report learned SDJM took cognizance of offence under Section 2(d) of the Code under Section 323 of the IPC. On 9th July, 1994 when the final report was submitted by the I.O. of the case and was accepted by the learned SDJM, the complainant was not heard at all. Being aggrieved by, and dissatisfied with, the order of learned SDJM dated 9.7.94 the complainant petitioner preferred a revisional application before this Court being CRR No. 2083 of 1994. By order dated 30.9.99 Justice D. P. Sarkar-J allowed the revisional application and observed that the order of the learned SDJM dated 9.7.94 was bad in law and the said order was set aside. Learned SDJM was directed to call upon the complainant and to file a naraji petition and to produce the complainant witnesses and other materials and thereafter to proceed with the case as provided under Section 200 of the Code. Thereafter considering initial deposition adduced by 13 witnesses including the complainant, doctor, police constable and on perusal of the postmortem report, G.D. Entry, injury report and the entire case record the learned Judicial Magistrate, 4th Court issued summons against all the 12 accused opposite parties under Sections 148/149/ 325/ 326/ 307/304/ 120B of the IPC. Thereafter, on 26.7.01 the accused persons filed an application praying for dismissal or alteration of the order dated 31.5.01 passed by the learned Judicial Magistrate, 4th Court and to drop the proceeding under Section 204 of the Code and the learned Judicial Magistrate, 4th Court, Barrackpore rejected their application by order dated 16.2.02.
4. The accused opposite parties preferred a revisional application in this Court being CRR No. 944 of 2002 challenging the order dated 16.2.02 passed by the learned Judicial Magistrate, 4th Court, Barrackpore. After hearing the parties Justice Debi Prasad Sengupta-J by order dated 29.4.02 disposed of the revisional application giving liberty to the accused opposite parties to agitate all the points before the Court below at appropriate stage and also observed that the points agitated in the present revisional application cannot be decided by this Court at this stage and the same can only be decided by the Trial Court after recording evidence. This Court also directed the learned Court below to expedite the trial.
5. In the Trial Court the accused opposite parties filed an application under Section 227 of the Code before the learned Additional District and Sessions Judge, Fast Track Court No. 1 praying for discharge and the complaint petitioner also filed written objection against the said prayer. The learned Judge by order dated 17.1.04 allowed the prayer of the accused opposite parties and discharged them from the offence under Section 304 of the IPC and framed charge against the accused opposite parties only under Sections 147, 148, 324/149, 326/149 and 307/149 read with Section 120B of the IPC. On same date the learned Judge framed charge against 23 accused persons including the complainant petitioner in Sessions Trial No. 5(1) of 2004 corresponding to Sessions Case No. 18(8) of 2000 under Sections 147, 148, 302/149, 304/ 149 and 120B of the IPC. Being aggrieved by, and dissatisfied with, the order dated 17.1.04 the complainant petitioner of Sessions Trial No. 6(1) of 2004 has again moved this Court in this revisional application.
6. Mr. Sekhar Basu, learned Senior Advocate appearing for the petitioner contended that relating to death of one Abdul Gaffar two FIR were lodged, one by the present petitioner and the other at the instance of the accused opposite parties. Observation of the learned Judge that there cannot be two murder cases for the murder of the self-same person i.e. Gafur AH is bad in law and is against the decision of Justice D. P. Sengupta-J passed in CRR No. 944 of 2002. While considering materials of one case the learned Judge cannot look into the materials of the other case, that is, counter case. The learned Judge has to continue himself within the limits or peripheries of the particular case which is under his consideration at the time of consideration of charge and he is to consider the statement of witnesses, the injury reports, post-mortem reports and other materials connected with that particular case and he cannot peruse papers of the other case or counter case. It was the clear observation of this Court in CRR No. 944 of 2002 which was preferred by the present accused petitioners challenging the order dated 16.2.02 passed by the learned Judicial Magistrate, 4th Court rejecting their prayer for modifying the order dated 31.5.01 and to drop proceeding against them, that the points agitated in the revisional application cannot be decided by this Court at this stage and the same can only be decided by the Trial Court after recording evidence. He contended that after observation of this Court that this point can be decided at the time of trial and after recording evidence, the learned Judge was not empowered to discharge the accused persons from the charge under Section 304 of IPC at the stage of Section 227 of the Code.
7. He further contended that in view of the direction of this Court passed in earlier Criminal Revision No. 2083 of 94 the learned Judicial Magistrate, 4th Court after examining 13 witnesses and perusing post-mortem report, G.D. Entry, injury report and other papers issued summons against the accused opposite parties in different sections including the section under Section 304 of IPC. After commitment of the case and in view of the observation of this Court in CRR No. 944 of 2002, the learned Additional Sessions Judge was not empowered at the stage under Section 227 of the Code to drop charge under Section 304 of the IPC against the accused opposite parties. There were statement of 13 witnesses and other papers and, therefore, the learned Judge at the stage of framing charge cannot assess evidence and he has to see whether there was prima facie case under Section 304 of the Code or not. At the time of issuing process learned Magistrate found prima facie materials of Section 304 of IPC against the present petitioners and observation of this Court in CRR No. 944 of 2002 is clear that the points raised by the accused opposite parties can be decided only in trial after recording evidence.
8. It is true that relating to incident of murder of Gafur Ali two separate cases have been started by two different persons and allegations made by them are different. In such a situation Court has a duty to consider circumstances of the two different cases separately and to proceed with the trial of the two cases separately one after another and thereafter to come to a finding which of the cases is true or which of the allegations made in the complaints or FIRs are true. In support of his contention Mr. Basu referred to the decision reported in the case of Balbir v. State of Haryana, . In the said decision of the Supreme Court there were two different cases relating to murder of same person. The Supreme Court made it clear that where in connection with murder of one person two different, cases were put before Sessions Court, one pursuant to police investigation and the other pursuant to private complaint accusing two different persons as perpetrators of the crime and it was held that the offence alleged in the two cases cannot be said to have been committed in the course of same transaction and hence the same Sessions Judge should try the two cases separately one after the other and judgments should be pronounced separately. The Supreme Court also indicated that if more than one Public Prosecutor is available the two cases should be prosecuted by two different Public Prosecutors. In the instant case the said principle is applicable as relating to murder of Abdul Gafur two different cases are pending in the Court of the learned Judge; one started on the basis of police investigation and the other started on the basis of naraji petition or complaint filed by the present petitioner. Accordingly, the order of the learned Judge should be set aside and charge under Section 304 IPC also should be framed against the accused opposite parties and two different Public Prosecutors should be engaged to conduct the two different sessions cases.
9. Learned Advocate appearing for the accused opposite parties contended that the High Court in a revision cannot curtail the powers embodied in the statute. Provisions of Sections 227 and 228 of the Code are clear and while making observation in a revision the High Court cannot curtail the statutory powers under Sections 227 and 228 of the Code which can be considered by the learned Judge at the time of consideration of charge. High Court cannot direct under which provisions there should be framing of charge. Initiation of private complaint one after another is bad, and if it is allowed it would open flood gate to start private complaints to conceal truth.
10. He contended that on the basis of investigation and chargesheet submitted by police, Sessions Case No. 5(1) of 2004 corresponding to Sessions Case No. 18(8) of 2002 is already pending in the Sessions Court in which the petitioner and his associates are accused persons. There are evidence of eyewitnesses to reveal that the present complainant petitioner and his associates are the main culprits who murdered Gafur Ali. Now in order to shift the responsibility of murder of Gafur Ali, the complainant filed a false case and prayed for sending it to O.C., Titagarh P.S. for investigation under Section 156(3) of the Code. After committing investigation the police submitted final report. But thereafter on the basis of naraji petition filed by the petitioner learned Magistrate examined witnesses and took cognizance of offence. There was no statement of doctor, police officer, post-mortem report etc. before the learned Magistrate to take cognizance. For murder of same person namely, Gafur AH there cannot be two different charges. Case Diary of Titagarh P.S. Case No. 129 dated 23.4.93 will reveal everything as to who are the real culprits. In order to hide or conceal their sin the complainant has lodged a false complaint in order to misguide the Court. In support of his contention he cited the decision of the Supreme Court in the case of Niranjan Singh Karam Singh Punjabi, Advocate v. Jitendra Bhimraj Bijja and Ors., reported in 1990 Cr. LJ 1869 and contended that in the said decision the Supreme Court made it clear that at the time of framing charge it is the duty of the Court to evaluate materials and documents on record and thereafter to come to a finding whether facts emerging therefrom taken at their face value disclose ingredients of alleged offence or not. As there was no element of Section 304 of IPC and as there cannot be two murder charges for murder of same person, the learned Judge acted rightly by not framing charge under Section 304 of IPC against the accused opposite parties.
11. Learned Advocate appearing for the State contended that the decision cited by the learned Advocate for the petitioner in Balbir Singh’s case (supra) is on a different factual matter and it is not applicable in the instant case. He contended that paragraph 9 of the reported decision is important. He further contended that there cannot be two murder charges for the murder of same person. Of course, he admitted that, it is the duty of the Court to consider materials of each case separately and while considering materials of one case the learned Judge cannot look into materials of other case.
12. After carefully considering the submissions of the learned Advocates of the parties and perusing the revisional application and the materials as well as the annexures and papers filed by the parties I find that relating to incident of murder of one Abdul Gaffar Ali, son of Niyat Ali two separate cases have been started. One case was started on the basis of police report i.e. Titagarh P.S. Case No. 129 dated 23.4.93 and it has ended in submission of chargesheet against 23 accused persons in which present petitioner is one of the accused persons and relating to it Sessions Trial No. 5(1) of 2004 corresponding to Sessions Case No. 18(8) of 2002 is pending in the Court of learned Additional Sessions Judge, Fast Track Court No. 1, Barasat and in the said case charge ‘ under Sections 147, 148, 302/149, 304/149 and 120B of the IPC have been framed against the accused persons. The present petitioner as complainant filed a complaint on 26.4.93 before the learned SDJM, Barrackpore for sending the petition of complaint to O.C., Titagarh P.S. for investigation under Section 156(3) of the Code and on the basis of it Titagarh P.S. Case No. 134 dated 28.4.93 was started. But in the Titagarh P.S. Case No. 134 dated 28.4.93 the I. 0. after completing investigation submitted final report and mentioned that only elements of Section 323 of IPC have been revealed. It appears that the learned SDJM by order dated 9.7.94 took cognizance of offence on the basis of the said final report treating it as a complaint under Section 2(d) of the Code.
13. It was the allegation of the present petitioner that when the final report was submitted and the learned Magistrate by order dated 9.7.94 accepted the final report no notice was served upon him and he was not given opportunity of hearing. Accordingly, the petitioner moved this Court in Criminal Revision No. 2083/94 and this Court by order dated 30.3.99 in the said CRR No. 2083/94 set aside the order of the learned SDJM and directed the learned SDJM to allow the petitioner complainant to file a naraji petition against the final report and to proceed with the provisions of Section 200 of the Code. Thereafter, the matter was transferred to the Court of the learned Judicial Magistrate, 4th Court, Barrackpore and the learned Judicial Magistrate after examining or taking initial deposition of 13 witnesses including the complainant and his witnesses, doctor, police constable and perusing the G.D. Entry, post-mortem report and injury report opined that prima facie case under Sections 148/149/325/326/307/ 304/120B of IPC have been made out against the accused opposite parties and accordingly he issued summons against all the 12 persons. It appears that the accused persons challenging the order dated 31.5.01 passed by the learned Judicial Magistrate, 4th Court filed an application before the learned Magistrate for alteration of the said order and to drop the proceeding against them under Section 204 of the Code but, the learned Magistrate by order dated 16.2.02 rejected the petition of the accused opposite party.
14. Accused opposite parties being aggrieved by, and dissatisfied with, the order dated 16.2.02 moved this Court in Criminal Revision No. 944 of 2002 and Justice D. P. Sengupta-J by order dated 29.4.02 while disposing of CRR No. 944 of 2002 observed that the learned Magistrate after being satisfied regarding strong prima facie case against the accused petitioners issued process and that order cannot be interfered with in the revision. It was observed by this Court that the points agitated in the present revisional application cannot be decided by this Court at this stage and the same can only be decided by the Trial Court after recording evidence. This Court allowed liberty to the accused opposite parties to agitate all the points at appropriate stage. Thereafter, during the stage of framing charge under Section 227 of the Code the accused petitioners filed an application for discharging them and the present petitioner also filed the written objection against the said petition. It is evident that the learned Additional Sessions Judge by order dated 17.1.04 partially allowed the prayer of the accused opposite parties and did not frame charge against them under Section 304 of IPC by making observation that there cannot be two murder cases for the murder of self-same person and he framed charge against the present accused opposite parties only under Sections 147, 148, 324/149, 325/149, 326/149, 307/149 and 120B of IPC. Challenging the said order the complainant petitioner has moved this Court in the instant revisional application.
15. After perusing the certified copy of the impugned order dated 17.1.04 passed by the learned Judge I am of opinion that the observation of the learned Additional Sessions Judge that there cannot be two murder cases for the murder of the self-same person i.e., Gafur Ali and in view of this there cannot be framing of any charge under Section 304 of IPC against the present accused opposite parties as death of Gafur Ali is being enquired into by this Court in Titagarh P.S. Case No. 129 dated 23.4.93 in which charge has been framed under Section 302 of IPC, is not in accordance with law and erroneous. It is true that in the case of Niranjan Singh Karam Singh Punjabi (supra) the Supreme Court observed that-
“At the Sections 227 and 228 stage i.e. the stage of framing charge the Court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The Court may for this limited purpose sift the evidence as it cannot be expected even at the initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case.”
At the same time the Supreme Court in Balbir v. State of Haryana (supra) and in Nathilal v. State of U.P., reported in 1990 SCC (Cri) 638 and Sudhir v. State of M.P., , has observed that case and counter case should be disposed of by the same Court and judgments should be pronounced on same day.
16. In Balbir v. State of Hrayana the facts of the reported case was almost identical to the facts of the present case. In the reported case there was two divergent cases relating to death of same person. The Supreme Court observed that-
“In the present Case the police version and the private complainant’s version are diametrically divergent without anything in common except that the murdered person was the same. In such cases the appropriate procedure to be followed by a Sessions Judge should be the same as followed in the present case, i.e., the two trials were separately conducted one after the other by the same Court before the same Judge and the judgments in both the cases were separately pronounced on the same day. No doubt the Sessions Judge should take care that he would confine his judgment in one case only to the evidence adduced in that particular case. We may add, if more than one Public Prosecutor are available at same station it is advisable that the Public Prosecutor who prosecuted one case should avoid prosecuting the other case.”
In the present incident the police version and the private complainant’s version i.e. petitioner’s version are divergent except the common fact that the person who was murdered namely Gafur Ali was the same. Therefore, in the instant case the learned Judge should try both the cases separately and he cannot look into evidence and other materials of the other case. The learned Judge must limit or confine himself within peripheries of each particular case and cannot be influenced by looking into materials of other case while deciding a particular case and it is not desirable that one Public Prosecutor who is prosecuting one sessions case should also prosecute the other sessions case.
17. Regarding case and counter case the observation of Supreme Court in Nathilal’s case (supra) is clear as the Supreme Court made it clear that-
“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.”
18. It is clear from the order of the learned Judicial Magistrate, 4th Court, Barrackpore dated 31.5.01 that after taking initial deposition of 13 witnesses including the complainant, doctor, the police constable and perusing G.D. Entry, post-mortem report and other injury reports and perusing entire case record carefully the learned Magistrate found strong prima facie against the present accused opposite parties under Sections 148, 149, 325, 326, 307, 304 and 120B of IPC. This Court in Criminal Revision No. 944 of 2002 while disposing of the revisional application made it clear that the points agitated in the present revisional application cannot be decided by this Court at this stage and the same can only be decided by the Trial Court after recording evidence. I lay emphasis on the words “can only be decided by the Trial Court after recording evidence” and it would indicate that what were the points to be considered by the learned Additional Sessions Judge at the time of consideration of charge. This Court also declined to interfere with the order of the learned Magistrate issuing summons against the petitioners accused persons under Sections 148/ 149/ 315/ 326/307/304/120B of IPC.
19. The learned Judge misdirected himself by observing that there cannot be two murder cases for the murder of same person and by observing that for death of Gafur Ali the matter is being enquired into in this Court in Titagarh P.S. Case No. 129 dated 23.4.93 and charge has been framed under Section 302 of the IPC. When the matter was already under consideration of this Court in CRR No. 944 of 2002 where this Court did not interfere into the order of the learned Magistrate taking cognizance of offence under Sections 148/149/ 325/ 326/ 307/ 304/ 120B of IPC and issue of summons against 12 accused persons and observing that, “The points agitated in the present revisional application cannot be decided by the Court at this stage and the same can only be decided by the Trial Court after recording evidence”, the learned Judge was completely in error in his approach and failed to exercise his jurisdiction properly. He also made error by looking into the papers of Titagarh P. S. Case No. 129 dated 23.4.93 at the time of consideration of charge of the present case. He had no authority to look into the papers of Titagarh P. S. Case No. 129 dated 23.4.93 at the time of consideration of papers of this case and he had to confine himself into the papers and documents of each case separately. In the instant case the proper course to be followed as has been laid down by the Supreme Court in Balbir v. State of Haryana (supra).
20. The order of this Court was sufficiently clear and indicated that the point can only be decided in the trial after recording evidence. Accordingly, the order passed by the learned Additional Sessions Judge dated 17.1.04 dropping the charge under Section 304 of IPC against the present accused persons is bad in law and is set aside. Learned Additional Sessions Judge, Fast Track Court No. 1, Barasat is directed to proceed in accordance with law in view of the observations made above in the body of the order and thereafter to proceed with the trial of both the cases separately as indicated above and he is directed to expedite the trial. During trial the learned Judge shall consider the cases separately on the basis of evidence and materials of each particular case and will give his verdict which version in the aforesaid two cases is true; whether in the case the police submitted the chargesheet or in the present case instituted on complaint submitted by the petitioner. The learned Judge must also consider that separate Public Prosecutors are appointed to conduct trial of the said two cases.
21. In view of the aforesaid discussion the revisional application succeeds and is allowed and is disposed of in terms of the order as indicated above.
22. Criminal Section is directed to supply a copy of this order to learned Additional Sessions Judge, Fast Track Court No. 1, Barasat for information and necessary action.
23. Urgent xerox certified copy be given to the parties, if applied for, expeditiously.