2026:HHC:27510 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 431 of 2012 Reserved on: 30.06.2026 Date of Decision: 08.07.2026 State of H.P. ...Appellant Versus Rajesh Rao ...Respondent _______________________________________ Coram Hon’ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 No For the Appellant/State: Mr Ajit Sharma, Deputy Advocate General. For the Respondent : Mr Ajay Kochhar, Senior Advocate, with Ms Swati Sharma, Advocate. Rakesh Kainthla, Judge The present appeal is directed against the judgment dated 20.06.2012 passed by the learned Sessions Judge, Kullu, District Kullu, (H.P) (learned Trial Court) vide which the respondent (accused before learned Trial Court) was acquitted of the commission of offences punishable under Sections 353, 504 and 506 of the Indian Penal Code (IPC). (The parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience). 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 2026:HHC:27510 2. Briefly stated, the facts giving rise to the present appeal are that the police presented a challan before the learned Chief Judicial Magistrate, Lahaul Spiti at Kullu for the commission of offences punishable under Sections 353, 504 and 506 of the IPC. It was asserted that the construction work of the Hurla-Tharas- Suchani road was allotted to Gorsy Construction Company, owned by the accused Rajesh Rao. The informant, Jagmohan Singh (PW4), was posted as an executive engineer with HPPWD. He, G.C. Gupta (PW5), Duni Chand (PW6), Mahender Singh, Shyam and Chaman were inspecting Hurla-Tharas-Suchani road on 22.07.2009 at about 01:00 p.m. The accused, Rajesh Rao, came to the spot with 5-6 persons and started quarrelling with Duni Chand. The informant tried to intervene, but the accused quarrelled with him. The accused picked up a stone lying on the spot and threatened to kill the informant. The informant made a complaint (Ext.PW2/B) to the police. The police registered an FIR (Ext.PW3/A). SI Krishan Chand (PW8) investigated the matter. He visited the spot and prepared the spot map (Ext.PW8/A). The accused produced a stone (Ext.P2) which was sealed in a parcel (Ext.P1) and was seized vide memo (Ext.PW2/A). Smt. Minu Pandit (PW1) produced the informant’s posting order (Ext.PW1/A), transfer order (Ext.PW1/B), and charge 3 2026:HHC:27510 assumption order (Ext.PW1/C). She also produced Duni Chand’s appointment order (Ext.PW1/D), transfer order (Ext.PW1/E) and posting order (Ext.PW1/F). SI Krishan Chand seized all these documents. He also seized the copy of the office order (Ext.PW7/A) regarding the award of work to the accused. He recorded the statements of witnesses as per their version. The challan was prepared and presented before the learned Chief Judicial Magistrate, Lahaul Spiti, at Kullu after the completion of the investigation. 3. Learned Chief Judicial Magistrate put the notice of accusation to the accused for the commission of offences punishable under Sections 353, 504 and 506 of the IPC, to which the accused pleaded not guilty and claimed to be tried. 4. Learned Sessions Judge, Kullu, passed an order on 07.12.2011 that the case was to be tried along with the session trial. Hence, the learned Sessions Judge tried the case. 5. The prosecution examined 8 witnesses to prove its case. Minu Pandit (PW1) produced the record. Chaman Lal (PW2) witnessed the recovery. SI Narayan Singh (PW3) signed the FIR. Jagmohan (PW4), the informant, G.C. Gupta (PW5) and Duni Chand (PW6) are the eyewitnesses. Inder Singh (PW7) produced the sanction order. Krishan Chand (PW8) investigated the matter. 4 2026:HHC:27510 6. The accused, in his statement recorded under Section 313 of the Code of Criminal Procedure (Cr.P.C), admitted that he was carrying out the construction of the Hurla-Tharas-Suchani road, and that the informant and other officials of PWD had visited the spot to inspect the construction. He denied the rest of the prosecution’s case. He stated that a false case was made against him because he had also filed a complaint against the informant party. He did not produce any evidence in his defence. 7. Learned Trial Court held that the testimonies of the prosecution witnesses contradicted each other on material aspects. The relationship between the informant party and the accused was strained. The recovery was not proved beyond a reasonable doubt. The accused had also lodged a complaint against the informant party, and the possibility of false implication could not be ruled out. Hence, the learned Trial Court acquitted the accused. 8. Being aggrieved by the judgment passed by the learned Trial Court, the State has filed the present appeal asserting that the learned Trial Court erred in acquitting the accused. The testimonies of the prosecution’s witnesses were discarded without any reason. Minor contradictions can occur with time and should not have been used to discard the prosecution’s version. It was wrongly held that 5 2026:HHC:27510 the weapon of offence was not connected to the commission of the crime. Therefore, it was prayed that the present appeal be allowed and the judgment passed by the learned Trial Court be set aside. 9. I have heard Mr Ajit Sharma, learned Deputy Advocate General for the appellant/State and Mr Ajay Kochhar, learned Senior Counsel, assisted by Ms Swati Sharma, learned counsel for the respondent/accused. 10. Mr Ajit Sharma, learned Deputy Advocate General for the appellant/State, submitted that the learned Trial Court erred in acquitting the accused. The minor contradictions were used to record acquittal. However, the minor contradictions are bound to come with time and should not have been used to discard the prosecution's case. The testimonies of prosecution witnesses corroborated each other. Enmity is a double-edged weapon, and it can furnish a motive for the commission of a crime as well. The proceedings conducted before the learned Sessions Judge were without jurisdiction because the learned Sessions Judge had requisitioned the case file and tried the accused. This was not permissible. The learned Sessions Judge can only take cognisance of the offences punishable under the various sections of the IPC, after the case is committed to him by the learned Magistrate. In the 6 2026:HHC:27510 present case, no case was committed to the learned Sessions Judge, and the learned Session Judge erred in trying the case. Hence, he prayed that the present appeal be allowed and the judgment passed by the learned Trial Court be set aside. 11. Mr Ajay Kochhar, learned Senior Counsel for the respondent/accused, has not disputed that the learned Sessions Judge could not have tried the case without committal by the learned Magistrate. 12. I have given a considerable thought to the submissions made at the bar and have gone through the records carefully. 13. The record maintained by the learned Trial Court does not show how the case was transferred to the Court of the learned Sessions Judge, Kullu. The order sheets show that the matter was listed for recording the statements of prosecution witnesses on 07.04.2012 vide order dated 27.10.2011. Thereafter, an order was passed on 07.12.2011 that the case file had been received from the Court of the learned Chief Judicial Magistrate Lahaul Spiti at Kullu, and the case was to be tried with the Sessions case. A letter written by the Superintendent of Chief Judicial Magistrate, Lahaul Spiti District at Kullu to the Superintendent of the District and Sessions Judge, Kullu mentions that the record was being submitted as per 7 2026:HHC:27510 the requisition received from the office of the learned Sessions Judge, which shows that the case file was requisitioned by the learned Sessions Judge. 14. There is no order of the committal of the case by the Learned Chief Judicial Magistrate to the Learned Sessions Judge. Section 193 of the Code of Criminal Procedure (Cr.P.C) reads that except as otherwise expressly provided by this Court or by any other law for the time being in force, no Court of Sessions shall take cognisance of an offence as a Court of Original Jurisdiction unless the case has been committed to it by a Magistrate under the Code. Therefore, a specific bar has been created to take cognisance by the Court of Sessions as a Court of original jurisdiction and this bar is only lifted when a case is committed to the Court of Sessions. In Queen-Empress v. Jagat Chandra Mali, 1895 ILR 22 Cal 50, the approver deviated from her statement. The learned Sessions Judge revoked the pardon, framed the charges and tried her with the accused. It was held that the learned Sessions Judge could not have tried the approver without the case being committed to the Court of Sessions. It was observed: 6. In the Court of Session, she was the first witness examined, and as she deviated from the statements made by her to the Deputy Magistrate, the Sessions Judge seems to have stopped her examination, made an order that she should be tried for 8 2026:HHC:27510 the offence in respect of which the pardon was tendered, and then and there to have transferred her from the witness-box to the dock. At the same time, her name was inserted in the charge by the Sessions Judge, and the trial proceeded as against both the accused jointly. 7. Now, it has been pointed out in several reported cases that this procedure is irregular and unfair to the accused. In the case of The Queen v. Petumber Dhoobee 1.4 W.R. Cr. 10, which was a case tried when the Criminal Procedure Code of 1861 was in force, Phear, J., commented upon the unfairness of such a proceeding and pointed out how it tended to prejudice, not only the approver himself on his trial, but also those with whom he was being jointly tried. In the case of In re Joyudee Paramanick (7 C.L.R. 66), which was a case very similar to the present, and was decided when the Code of 1872 was in force, the Court expressed the opinion that the Sessions Judge would have exercised a wiser discretion had he refrained from trying the approver along with the other accused. In Queen-Empress v. Sudra I.L.R. 14 All. 336, the same view was taken by Knox, J. In Queen-Empress v. Malua I.L.R. 14 All. 502, the accused Malua had, along with others, been committed to the Court of Sessions upon certain charges and had pleaded guilty. After two witnesses had been examined for the prosecution, the Sessions Judge tendered a pardon to Malua, who was then put into the witness-box and examined as a witness. The Judge, being of the opinion that his evidence was false, then revoked the tender of pardon and put Malua back from the witness- box into the dock and proceeded with the trial as against him and the other three accused. In regard to this procedure the High Court remarked: "Whether or not that proceeding was illegal, it is quite clear to our minds that it might most seriously prejudice the defence of a man who was taken out of the dock in the middle of a trial to give evidence upon a tender of pardon, to put him back in the dock after his evidence had been taken and to proceed to try him as if the tender had never been made. It would be most difficult for a man placed in such circumstances to deal with the evidence or to defend himself and put forward any points which might be in his favour with effect." And having a doubt as to the legality of the procedure 9 2026:HHC:27510 adopted, the Court set aside the conviction of Malua and ordered him to be retried. 8. In the case of Queen-Empress v. Rama Tevan I.L.R. 15 Mad. 352, the facts were very similar to those in the present case. Two approvers had been sent up to the Sessions Court as witnesses. The Judge revoked their pardon and proceeded at once to try them along with the other accused. The High Court held that the approvers not having been committed for trial, the action of the Judge was ultra vires. The Court, therefore, set aside the conviction of the approvers and directed a fresh trial of the other accused on the ground that they had been prejudiced by the action of the Judge. As regards the approvers the Court said: "By Section 349, 3 Act X of 1872, a Sessions Judge was empowered to commit or direct the commitment of any person who, having accepted an offer of pardon, did not conform to the conditions under which the pardon was tendered, but the present Code contains no such provisions, and in Section 339 it is merely laid down that such a person may be tried for the offence in respect of which the pardon was tendered; but Section 193 provides that no Court of Session shall take cognizance of any offence as a Court of Original Jurisdiction, unless the accused has been committed to it by a Magistrate duly empowered." And, farther on, the Court say: "Even supposing that the Sessions Judge had had power to try the two approvers, we concur with the learned Judges of the Calcutta Court- The Queen v. Petumber Dhoobee 14 W.R. Cr. 10 and The Queen v. Bipro Dans 19 W.R. Cr. 43: that it is unfair to put an approver, whose conditional pardon has been cancelled, on trial along with the other prisoners, in the course of whose trial such approver has given evidence, and that the proper course is to defer taking action against the approver until the conclusion of the trial then proceeding." See also the case of Rama Varma Baja v. The Queen I.L.R. 3 Mad. 351. 9. For the reasons given in the two cases last cited, we are of the opinion that the course pursued by the Sessions Judge in this case was not merely irregular, but that the trial of the appellant Udoy Tara was altogether illegal. Section 1934 of the Code now in force runs as follows: "Except as otherwise 10 2026:HHC:27510 expressly provided by this Code, or by any other law for the time being in force, no Court of Session shall take cognisance of any offence as a Court of Original Jurisdiction unless the accused has been committed to it by a Magistrate duly empowered in that behalf." We are not aware of any provision either in the Code itself or in any other law now in force, and Mr. Leith has been unable to refer us to any such provision, which would authorise the Sessions Judge in this case to, take cognizance of the offence of murder and to try Udoy Tara for that offence without a commitment duly made by a competent Magistrate That being so, we must set aside the conviction of Udoy Tara on the ground that the Sessions Judge had no jurisdiction to charge and try her for the offence of murder. In the view we take of the matter, it is almost unnecessary to add that she was unfairly prejudiced by the course which the Sessions Judge followed in suddenly putting her on her trial without notice, without any preliminary enquiry and without an opportunity being allowed her to retain legal advice or to adduce evidence in her defence. 15. In Emperor v. Maula Khan, 1907 SCC OnLine All 45, the learned Sessions Judge committed the accused to his own Court, tried and convicted him. Allahabad High Court held that it was impermissible to do so because Section 193 of the Cr.P.C prevents the Court of Sessions from taking cognisance and trying the case as a Court of original jurisdiction. It was observed: “….The learned Sessions Judge, however, committed the accused to his own Court, tried and convicted him, and sentenced him to four years' rigorous imprisonment. This procedure of the learned Judge is clearly erroneous. Section 193 of the Code of Criminal Procedure provides that “except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Session shall take cognisance of any offence as a Court of original jurisdiction unless the accused has been committed to it by a Magistrate 11 2026:HHC:27510 duly empowered in that behalf.” The only section which expressly authorises a Court of Session to commit an accused person to itself is section 477. Section 480 empowers a Court of Session to take cognisance of the offence mentioned in the section without a commitment being made to it by the Magistrate. Except these two sections, there is no other section in the Code which empowers a Court of Session to take cognisance of an offence as a Court of original jurisdiction unless a commitment has been made by a competent Magistrate. The learned Sessions Judge refers to clause (6) of sub-section (1) of section 423 of the Code of Criminal Procedure as an authority for the procedure adopted by him in this case. Under that clause, a Court of Appeal may order the accused person to be “committed for trial.” It is clear that what the section means is that the Court of Appeal can direct a Magistrate competent to make a commitment to commit the accused to the Court of Session for trial, and the learned Judge is in error in thinking that he has the power to make a commitment to his own Court. Section 423 must be read with section 193, and reading the two sections together, it is manifest that, except in the cases in which a Court of Session is expressly empowered to take cognisance of an offence as a Court of original jurisdiction, it has no power to do so unless a commitment has been made by a Magistrate duly empowered in that behalf. As in this case, the accused was not committed to the Court of Session by a Magistrate, the learned Judge in trying the accused acted without jurisdiction. The conviction of the accused by him is therefore illegal and must be set aside. This was held by the Calcutta High Court in Queen-Empress v. Jagat Chandra Mali (I.L.R. 22 Calc. 50).” 16. In Jagdish Prasad Gupta v. State of Rajasthan, 1995 Supp (3) SCC 386, the High Court transferred the case to an Additional Session Judge from the Court of the Magistrate. The Hon'ble Supreme Court set aside the order and held that it was impermissible for the High Court to transfer a case pending before 12 2026:HHC:27510 the Magistrate to the Court of Sessions and for the Court of Sessions to try it as a Court of original jurisdiction. It was observed: 5. That apart, having examined the provisions of the Essential Commodities Act, we are satisfied that the Special Court constituted under Section 12-A of the Act is to be presided over by a Single Judge who is qualified for appointment as a High Court Judge or he has, for a period of not less than one year, been a Sessions Judge or an Additional Sessions Judge. In the instant case, admittedly, the Special Court is presided over by an additional Sessions Judge and as provided under Section 193 of the Code of Criminal Procedure, the Court of Session cannot take cognisance of any offence directly except as expressly provided by the Code of Criminal Procedure or by any other law for the time being in force. The section further lays down that no Court of Session shall take cognisance of any offence as a Court of Original Jurisdiction unless the case has been committed to it by a Magistrate under the Code. That being the legal position, the Additional Sessions Judge who is presiding over the Special Court cannot get jurisdiction by a mere transfer of a case by the High Court. We may also point out that the High Court has not referred to any of these provisions before ordering such a transfer. In the result, the impugned order is set aside, and all the cases which are transferred by virtue of the impugned order dated 30-7-1993 are sent back to the Judicial Magistrate for CBI cases, Jaipur, for being tried and disposed of in accordance with law. 17. It was submitted that a cross-case was pending before the learned Sessions Judge, and the learned Sessions Judge was justified in trying the two cases together. This submission will not help the prosecution. It was laid down by the Hon’ble Supreme Court in Sudhir v. State of M.P., (2001) 2 SCC 688, when one case arising out of the same incident is triable by the Court of Sessions and the other 13 2026:HHC:27510 by the Court of Magistrate, the magistrate should commit the case to the Court of Sessions to enable it to try the case. It was observed: “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 offences 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, the power to commit the case to the Court of Session, albeit none of the offences involved therein is exclusively triable by the Sessions Court. Section 323 is incorporated in the Code to meet similar cases. 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 14 2026:HHC:27510 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 an offence not exclusively triable by such court is committed to the Court of Session, the Sessions Judge has to exercise 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 Section 228(1) in 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 the 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) 15 2026:HHC:27510 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 an 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. Therefore, as per the judgment of the Hon'ble Supreme Court, the case is to be committed by the Magistrate to the Court of Sessions, and thereafter the learned Sessions Judge can try the cross cases together. It is not permissible for the Court of Sessions to withdraw the case pending before the learned Magistrate and thereafter try the same as a Court of original jurisdiction because of the bar contained in Section 193 of CrPC. 19. Therefore, the objection that learned Sessions Judge erred in withdrawing the case has to be accepted as correct, and the proceedings conducted by the learned Sessions Judge are non-est and without jurisdiction. Consequently, the judgment passed by the 16 2026:HHC:27510 learned Sessions Judge is ordered to be set aside, and the matter is remitted to the Court of Learned Chief Judicial Magistrate, Lahaul Spiti at Kullu, who shall try the same as per the law. 20. The parties through their respective counsel are directed to appear before the Court of Learned Chief Judicial Magistrate, Lahaul Spiti at Kullu on 10.08.2026. The case file be sent forthwith to reach the Court of the learned Chief Judicial Magistrate, Lahaul Spiti at Kullu well before the date fixed. (Rakesh Kainthla) Judge 8th July, 2026 (Nikita)