S.C. Agarwal, J. - (1.) THIS revision under Section 397/401 Cr.P.C. is directed against the order dated 14.1.2010 passed by Addl. Sessions Judge, Court No. 12, Muzaffar Nagar in S.T. No. 1255 of 2009, State v. Rajendra and others, under Section 323, 324, 506 IPC, P.S. Mansoorpur, District- Muzaffar Nagar, later registered at Criminal Case No. 1155/9 of 2010 in the Court of C.J.M. Muzaffar Nagar, whereby trial was transferred to the Court of C.J.M. Muzaffar Nagar in accordance with Section 228 (1) (a) Cr.P.C.
(2.) THE facts are that on 13.11.2004 at 12.05 p.m., an FIR was lodged by opposite party No. 2-Rajendra Kumar against Seetu @ Praveen, Buddhu @Ashok, Pramod and Ramesh, under Section 302 IPC, P.S. Mansoorpur, District Muzaffar- Nagar, which was registered at crime No. 222 of 2004. It was alleged in the FIR that on 12.11.2004 at 9.45 p.m., Himanshu (deceased) was firing crackers in front of house of Rajendra Kumar. Accused Seetu @ Praveen took Himanshu to his house. After sometime Rajendra heard shrieks of Himanshu. Rajendra accompanied by Raj Kumar and Vivek reached the house of Pramod and saw that Buddhu had caught hold of Himanshu and Seetu stabbed him with a gupti. Himanshu was immediately taken to the hospital where he was declared dead. Subsequently, an application under Section 156 (3) Cr.P.C. was filed on 24.11.2004 by the revisionist Sunil Kumar @ Ninna against Rajendra Kumar- opposite party No. 2, Neetu, Prabhat and Vivek before C.J.M. Muzaffar Nagar stating therein that on 12.11.2004 (there is over writing in the date) at about 10 p.m., his brother Praveen @ Seetu was firing crackers in front of his house, accused Rajendra Kumar, Neetu, Prabhat and Vivek came there, armed with lathi and dandas. Vivek was armed with a country made pistol. All of them made an assault on Praveen @ Seetu. On exhortation of Rajendra Kumar, Vivek fired at Praveen @ Seetu. When revisionist tried to save his brother, he was also fired at by Vivek. The revisionist took his brother to police station and the police personnel got Praveen @ Seetu medically examined. In the meantime, accused persons also reached the police station and the FIR of the revisionist was not lodged. On the basis of application under Section 156(3) Cr.P.C, crime No. 222A of 2004 was registered under Sections 323, 307,506 IPC on 1.9.2005 but charge-sheet was filed under Sections 323, 324, 506 IPC. The case under Section 302 IPC arising out crime No. 222 of 2004 as well as case arising out of crime No. 222A of 2004, under Sections 323, 324, 504 were committed to the Court of sessions treating them to be cross cases and both the cases were transferred to the Court of Addl. Sessions Judge, Court No. 12, Muzaffar Nagar where they were registered as ST. No. 484 of 2006, State v. Buddhu @ Ashok and others, under Section 302 IPC and S.T. No. 1255 of 2009, State v. Rajendra Kumar and others, under Sections 323, 324, 506 IPC.
(3.) IN S.T. No. 1255 of 2009, an application was moved on behalf of Rajendra Kumar and others (accused) that this case was not a cross case of S.T. No. 484 of 2006 under Section 302 IPC and therefore the case be transferred to C.J.M. Muzaffar Nagar in accordance with provision of Section 228 (1) (a) Cr.P.C. The application was opposed by complainant. After hearing learned counsel for both the parties, learned Addl. Sessions Judge came to the conclusion that this case was not the cross case of S.T. No. 484 of 2006. The place of incident, date of incident as well as the time of incident in both the cases were different. Therefore S.T. No. 1255 of 2009 was sent back to the Magistrate for trial as it was not the case exclusively triable by the Court of session. Feeling aggrieved, the complainant has filed this revision. Heard Sri Rajeev Sosodia, learned counsel for the revisionist, Sri R.N. Rai, learned counsel for the opposite party No. 2 as well as learned AGA appearing on behalf of the State. Learned counsel for the revisionist submitted that right from the very beginning both the cases were treated as cross cases by the Court. The bail to the accused persons were also granted on the ground of both the cases being cross cases. It was further submitted that learned Addl. Sessions Judge was wrong in coming to the conclusion that incident in both the cases took place on different dates, time and places. It was contended that the date of incident in both the cases is 12.11.2004 whereas in the case under Section 302 IPC, time of incident was 9.45 p.m. whereas in the case arising out of crime No. 222A of 2004, the time of incident was 10 p.m. The contention is that both the cases being cross cases, should be heard and decided by the same Court simultaneously and therefore impugned order is not sustainable in law.;