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2026 DAILYLAW 27240 (ORI)

Anantha @ Ananta Biswal v. State of Odisha

2026-01-30

Sanjeeb K Panigrahi

body2026
Sanjeeb K Panigrahi, J. 1. The petitioner is assailing the order dated 28.03.2024 passed by the learned S.D.J.M., Paralakhemundi, rejecting his petition dated 02.11.2023 filed in G.R. Case No.411 of 2020, whereby he sought commitment of the case records to the Court of Sessions for trial as a counter case to S.T. Case No.(S) 23 of 2021, arising out of Paralakhemundi P.S. Case No. 210 of 2020, pending before the learned Additional Sessions Judge, Gajapati. I. F ACTUAL M ATRIX OF THE C ASE 2. The brief facts of the case are as follows: i. The prosecution allegation in brief in S.T. Case Nos. (S) 23 and (S) 30 of 2021 is that on 08.09.2020, in the afternoon, while the informant, Opposite Party No. 2, and his family members were resting after taking their meals, the petitioner came and engaged in conversation with the informant in connection with a piece of land. It is alleged that thereafter the co-accused persons, namely Suresh, Trinath (since dead), Bijuli and Kumari, along with others, came in a body, entered the house and abused the informant and his family members. It is further alleged that they pushed and pulled the informant’s daughter-in-law and pressed the informant’s neck with an intention to kill him. It is also alleged that Suresh picked up a crow-bar used for tying cattle from the cow-shed and assaulted the informant’s son Santosh, causing bleeding injuries on his head and right hand, as a result of which he fell down. When the informant protested, he was also assaulted with the said crow-bar and fell down sustaining bleeding injuries. Dasarath Swain was also allegedly assaulted with the blood-stained crow-bar and sustained bleeding injuries. It is further alleged that Suresh and Trinath dragged the wearing apparels of the informant’s daughter-in-law Sakuntala, caught hold of her neck and pressed it with an intention to take her life, abused the inmates in filthy language and thereafter left the place threatening to murder them. ii. During the course of investigation, the petitioner and the other co-accused persons were arrested. iii. The injured Santosh was treated at D.H.H., Paralakhemundi, thereafter at M.K.C.G. M.C. & H., Berhampur and subsequently at Visakha Hospital, Cuttack, where he succumbed to his injuries on 10.09.2020. iv. On 05.01.2021, a preliminary charge-sheet was submitted against the petitioner and other accused persons citing nineteen witnesses and certain documents. iii. The injured Santosh was treated at D.H.H., Paralakhemundi, thereafter at M.K.C.G. M.C. & H., Berhampur and subsequently at Visakha Hospital, Cuttack, where he succumbed to his injuries on 10.09.2020. iv. On 05.01.2021, a preliminary charge-sheet was submitted against the petitioner and other accused persons citing nineteen witnesses and certain documents. After cognizance was taken, a final charge-sheet was filed on 22.02.2021 citing the same witnesses and documents. v. On 08.09.2020 at about 8:35 p.m., the petitioner, as informant, lodged a written report at Paralakhemundi Police Station, which was treated as an F.I.R. and registered as Paralakhemundi P.S. Case No. 211 of 2020 under Sections 341, 294, 323, 354-B and 506 read with Section 34 IPC. After investigation, charge-sheet dated 25.11.2020 was submitted against Opposite Party No. 2 and others. vi. The petitioner and the other co-accused persons were arrested in connection with the F.I.R. lodged against them, being Paralakhemundi P.S. Case No. 210 of 2020, and have been facing trial for the offence of murder in S.T. Case Nos. (S) 23 and (S) 30 of 2021 on the file of the learned Additional Sessions Judge, Gajapati, which is awaiting completion of further prosecution evidence. However, no trial has commenced in relation to the case instituted on the petitioner’s F.I.R. vii. In that context, on 02.11.2023, the petitioner entered appearance through counsel and filed a petition stating, inter alia, that he and others are facing trial before the learned Additional Sessions Judge, Gajapati in S.T. Case Nos. (S) 23 and (S) 30 of 2021 arising out of Paralakhemundi P.S. Case No. 210 of 2020 and that his F.I.R., registered as Paralakhemundi P.S. Case No. 211 of 2020 and pending on the file of the learned S.D.J.M., Paralakhemundi, being a counter case, ought to be committed to the Court of Sessions for contemporaneous trial. The said petition was rejected by the learned S.D.J.M., Paralakhemundi by order dated 28.03.2024. viii. Being aggrieved by the order dated 28.03.2024 passed by the learned S.D.J.M., Paralakhemundi rejecting the petition dated 02.11.2023 filed in G.R. Case No. 411 of 2020 seeking commitment of the case records to the Court of Sessions for trial as a counter case to S.T. Case Nos. (S) 23 and (S) 30 of 2021, the petitioner has invoked the inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure. II. (S) 23 and (S) 30 of 2021, the petitioner has invoked the inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure. II. S UBMISSIONS O N B EHALF O F T HE P ETITIONER 3. Learned counsel for the petitioner earnestly made the following submissions in support of his contentions: i. The learned court below has mechanically rejected the petition by order dated 28.03.2024, thereby gravely prejudicing the petitioner. The impugned order is illegal and unsustainable in the eye of law. ii. Learned counsel for the petitioner submitted that by rejection of the petition, both the prosecution as well as the petitioner have been prejudiced, particularly as the Sessions trial has considerably progressed in the meantime. iii. It was further contended that the rejection of the petition has seriously prejudiced the petitioner in establishing his defence and, therefore, the impugned order warrants interference in exercise of inherent powers. It was submitted that both matters constitute a case and counter case and the law is well settled that such cases are required to be tried by the same court, one after the other. The learned S.D.J.M. committed a gross error in rejecting the petition on the purported ground that there was no specific prayer to treat G.R. Case No. 411 of 2020 as a counter case, despite clear and specific averments to that effect. It was also contended that the petition remained pending for a considerable period without any justifiable reason. iv. Learned counsel further submitted that by rejection of the petition, a fair trial and a just decision have been jeopardised and that, unless the impugned order is interfered with, the petitioner shall suffer serious prejudice both in the Sessions trial presently pending against him and in the G.R. case when it is taken up for trial. v. It was further contended that if examination of witnesses in the Sessions trial, which is counter to the petitioner’s F.I.R., is concluded in the meantime, the petitioner and other accused persons would be severely handicapped in establishing their defence. vi. v. It was further contended that if examination of witnesses in the Sessions trial, which is counter to the petitioner’s F.I.R., is concluded in the meantime, the petitioner and other accused persons would be severely handicapped in establishing their defence. vi. Learned counsel further submitted that courts are under a duty to act fairly and that the mechanical rejection of the petition dated 02.11.2023 filed in G.R. Case No. 411 of 2020 has seriously prejudiced the petitioner in establishing his defence before the Court of Sessions and has also hindered him from availing remedies available in law for having the counter case tried by the same court in accordance with settled principles. vii. It was further contended that the approach of the learned court below in rejecting the prayer for commitment of G.R. Case No. 411 of 2020 to the Court of Sessions for trial as a counter case to S.T. Case No. (S) 23 of 2021 arising out of Paralakhemundi P.S. Case No. 210 of 2020, pending before the learned Additional Sessions Judge, Gajapati, where the petitioner is facing trial for offences under Sections 294, 302, 323, 341, 354-B, 452 and 506 read with Section 34 IPC, reflects judicial impropriety and warrants interference, as the petitioner has been seriously prejudiced thereby. viii. Learned counsel further submitted that the impugned order rejecting the prayer to commit G.R. Case No. 411 of 2020 corresponding to Paralakhemundi P.S. Case No. 211 of 2020 to the Court of Sessions for trial along with S.T. Case Nos. (S) 23 and (S) 30 of 2021, to which it is a counter case as noted in column 16 of the charge-sheet, is illegal and improper and warrants interference under Section 482 of the Code of Criminal Procedure. ix. It was further submitted that the learned court below has failed to safeguard the interest of the prosecution as well and that interference of this Court is necessary. The impugned order is thus liable to be quashed in exercise of inherent powers. x. Learned counsel finally submitted that unless the impugned order is interfered with, it would result in abuse of the process of court and failure of justice. xi. It was, therefore, submitted that this is a fit case for issuance of appropriate directions in exercise of inherent powers to prevent failure of justice and prejudice to the petitioner and other co-accused persons. xi. It was, therefore, submitted that this is a fit case for issuance of appropriate directions in exercise of inherent powers to prevent failure of justice and prejudice to the petitioner and other co-accused persons. III.S UBMISSIONS O N B EHALF O F T HE O PPOSITE P ARTIES 4. Learned counsel for the opposite parties earnestly made the following submissions in support of his contentions: i. It was submitted that the present case arises out of a long-standing land dispute between the parties and that the incident dated 08.09.2020 occurred during discussions relating to settlement of the said dispute, which escalated into verbal altercation, physical assault, outraging of the modesty of women and issuance of criminal threats by both sides. ii. It was submitted that during the course of investigation, the Investigating Officer visited the spot, examined witnesses, recorded their statements under Section 161 Cr.P.C., collected Medical Outdoor Tickets and verified the injuries of the injured persons with the Medical Officer, D.H.H., Paralakhemundi. It was submitted that Trinath Pradhan sustained a simple injury, Ananta Biswal and Bijuli Biswal sustained abrasion injuries and Kumar Pradhan sustained a bruise injury. iii. Learned counsel further submitted that notices under Section 41(A) Cr.P.C. were issued to all the accused persons, who complied with the same, and that preventive action under Section 107 Cr.P.C. was also initiated against both the groups. iv. It was further submitted that during the course of the incident, Santosh Swain sustained a head injury inflicted by a crow-bar and succumbed to his injuries on 10.09.2020, which led to registration of U.D. Case No. 1495 of 2020 at Mangalpada Police Station and linkage of the said U.D. case with the present F.I.R. v. Learned counsel for the opposite parties contended that the materials collected during investigation, including statements of witnesses, medical evidence and documentary records, prima facie establish the involvement of Gobinda Swain, Karunakar Swain, Dasaratha Swain, Jayanti Swain and Sakuntala Swain in commission of offences under the relevant provisions of the IPC and that Santosh Swain was shown as abated due to his death. It was submitted that upon completion of investigation, Charge-sheet No. 300 dated 25.11.2020 was submitted under Sections 341, 294, 323, 354-B and 506 read with Section 34 IPC for trial before the competent court. vi. It was submitted that upon completion of investigation, Charge-sheet No. 300 dated 25.11.2020 was submitted under Sections 341, 294, 323, 354-B and 506 read with Section 34 IPC for trial before the competent court. vi. Learned counsel further submitted that the statements of witnesses indicate that the petitioner, along with his family members and associates, went to the house of Gobinda Swain under the pretext of discussing land settlement despite long-standing disputes between the families, and that his arrival with supporters triggered the confrontation. It was submitted that the petitioner was not a neutral complainant but an active participant in the incident, having exchanged abusive words, issued threats and joined in pushing and pulling, thereby aggravating the situation. vii. It was further submitted that the Investigating Officer, after examining witnesses from both sides, found that the petitioner actively supported the group involved in Paralakhemundi P.S. Case No. 210 of 2020, while in his own case he projected himself only as a victim, and that his conduct contributed to escalation of violence, which ultimately resulted in loss of life. viii. In view of the aforesaid submissions, learned counsel for the opposite parties contended that the reliefs sought by the petitioner are devoid of merit and that the present petition is liable to be dismissed. IV. F INDINGS O F T HE LEARNED S.D.J.M., P ARALAKHEMUNDI 5. The learned S.D.J.M., Paralakhemundi, by the impugned order, rejected the petition filed by the informant seeking commitment of G.R. Case No. 411 of 2020 to the Court of Sessions. 6. The learned court noted that the petitioner had lodged the F.I.R. in Paralakhemundi P.S. Case No. 211 of 2020 on 08.09.2020 for offences under Sections 341, 294, 323, 354-B and 506 read with Section 34 IPC and that charge-sheet was submitted on 25.11.2020, whereafter cognizance was taken and charges were framed. It was observed that out of seven charge- sheeted witnesses, two witnesses had already been examined and that the case had been pending for nearly three years. 7. The learned court further observed that no earlier petition had been filed seeking to treat the said case as a counter case to S.T. Case Nos. (S) 23 and (S) 30 of 2021 pending before the learned Additional Sessions Judge, Gajapati. 7. The learned court further observed that no earlier petition had been filed seeking to treat the said case as a counter case to S.T. Case Nos. (S) 23 and (S) 30 of 2021 pending before the learned Additional Sessions Judge, Gajapati. It was held that all the offences in the present case were triable by the Magistrate and that there was no specific prayer to treat the case as a counter case arising out of the same occurrence. On such reasoning, the learned S.D.J.M. held the petition to be devoid of merit and rejected the same. V. C OURT ’ S R EASONING AND A NALYSIS 8. Heard learned counsel for the parties and perused the material available on record. 9. The issue that arises for consideration in the present petition is whether the learned S.D.J.M., Paralakhemundi was justified in rejecting the petitioner’s prayer for commitment of G.R. Case No. 411 of 2020 to the Court of Sessions for trial as a counter case to S.T. Case Nos. (S) 23 and (S) 30 of 2021 and whether such rejection is sustainable in law. 10. The position relating to the trial of a case and counter case is well settled. Where two criminal cases arise out of the same occurrence and involve the same parties, both cases are required to be tried by the same court, one after the other, so as to avoid conflicting judgments and to ensure a fair and complete appreciation of both versions of the incident. 11. In Nathi Lal v. State of U.P. , 1 1990 Supp SCC 145 . , the Supreme Court laid down that in cases of cross-cases, the same Judge should try both cases one after the other, reserve judgment in each, and thereafter pronounce separate judgments, while ensuring that evidence in one case is not relied upon in the other. The Court observed as follows: "2. 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. 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.” 12. In State of M.P v.Mishrilal (2003) 9 SCC 426 , the Supreme Court reiterated that cross-cases arising out of the same incident should be tried by the same court irrespective of the nature of offences involved, as trying them separately is likely to result in conflicting judgments. The relevant observation is replicated hereinunder: “8. …It would have been just, fair and proper to decide both the cases together by the same court in view of the guidelines devised by this Court in Nathi Lal case [ 1990 Supp SCC 145 : 1990 SCC (Cri) 638] . The cross-cases should be tried together by the same court irrespective of the nature of the offence involved. The rational behind this is to avoid the conflicting judgments over the same incident because if cross-cases are allowed to be tried by two courts separately there is likelihood of conflicting judgments. In the instant case, the investigating officer submitted the challan against both the parties. Both the complaints cannot be said to be right. Either one of them must be false. In the instant case, the investigating officer submitted the challan against both the parties. Both the complaints cannot be said to be right. Either one of them must be false. In such a situation, legal obligation is cast upon the investigating officer to make an endeavour to find out the truth and to cull out the truth from falsehood. Unfortunately, the investigating officer has failed to discharge the obligation, resulting in grave miscarriage of justice.” 13. In Sudhir v. State of M.P. (2001) 2 SCC 688 , the Supreme Court was considering a situation where a case and counter case arising out of the same incident had both been committed to the Court of Sessions, though upon consideration under Section 227 of the Code, the Sessions Court found that only one of the cases involved an offence exclusively triable by the Court of Sessions, while the other did not. The core issue before the Court was whether, in such a situation, the Sessions Court was bound under Section 228(1)(a) of the Code of Criminal Procedure to transfer the latter case to the Chief Judicial Magistrate. The Supreme Court held that the expression “may” used in Section 228(1)(a) signifies that such transfer is discretionary and not mandatory. The Court further held that where a case and counter case arising out of the same occurrence are before the Sessions Court and one of them involves an offence exclusively triable by it, the Sessions Court is not obliged to transfer the other case and may itself try both cases in the manner indicated in Nathi Lal (supra) . The Supreme Court also explained that a Magistrate is empowered under Section 323 of the Code of Criminal Procedure to commit a counter case to the Court of Sessions, even if it does not involve any offence exclusively triable by that Court, where it appears that the case ought to be tried by the Court of Sessions along with the connected case. 14. In the present case, it is not in dispute that Paralakhemundi P.S. Case No. 210 of 2020 and Paralakhemundi P.S. Case No. 211 of 2020 arose out of the same incident dated 08.09.2020, involving the same parties and the same subject matter. One of the cases has culminated in S.T. Case Nos. 14. In the present case, it is not in dispute that Paralakhemundi P.S. Case No. 210 of 2020 and Paralakhemundi P.S. Case No. 211 of 2020 arose out of the same incident dated 08.09.2020, involving the same parties and the same subject matter. One of the cases has culminated in S.T. Case Nos. (S) 23 and (S) 30 of 2021, wherein the petitioner and others are facing trial before the Court of Sessions for offences including Section 302 IPC. The case instituted on the petitioner’s F.I.R., giving rise to G.R. Case No. 411 of 2020, is pending before the learned S.D.J.M., Paralakhemundi and trial therein has not commenced. 15. The learned Magistrate rejected the petitioner’s prayer primarily on the grounds that the case had been pending for a considerable period, that some witnesses had already been examined, that the offences in the G.R. case are triable by the Magistrate and that there was no specific prayer to treat the said case as a counter case. 16. This Court is unable to accept the aforesaid reasoning. Mere pendency of the case or progress of trial cannot defeat the settled principles governing the trial of a case and counter case. 17. Similarly, the fact that the offences involved in G.R. Case No. 411 of 2020 are otherwise triable by a Magistrate is not decisive once it is found that the connected case is exclusively triable by the Court of Sessions. The jurisdiction of the Sessions Court to try the counter case flows from the necessity of a harmonious trial of both versions arising out of the same occurrence. 18. As regards the absence of a specific prayer, the materials on record clearly disclose that the petitioner had asserted that the two cases arose out of the same incident and constituted a case and counter case. The Investigating Officer has also noted the existence of a counter case in the charge-sheet. In such circumstances, rejection of the petition on a hyper-technical ground relating to the form of the prayer, without addressing the substance of the claim, cannot be sustained. 19. Permitting one version of the incident to proceed before the Court of Sessions while the counter version remains pending before the Magistrate has the potential of causing procedural imbalance and serious prejudice to the parties. 19. Permitting one version of the incident to proceed before the Court of Sessions while the counter version remains pending before the Magistrate has the potential of causing procedural imbalance and serious prejudice to the parties. The principle of trying a case and counter case by the same court is intended precisely to prevent such a situation. VI. C ONCLUSION 20. In view of the aforesaid discussion, this Court is of the considered opinion that the learned S.D.J.M., Paralakhemundi failed to apply the settled legal principles governing the trial of a case and counter case and that the impugned order dated 28.03.2024 rejecting the petitioner’s prayer for commitment of G.R. Case No. 411 of 2020 cannot be sustained in law. 21. Consequently, the present petition is allowed and the impugned order dated 28.03.2024 passed by the learned S.D.J.M., Paralakhemundi is hereby set aside. 22. G.R. Case No. 411 of 2020 is directed to be committed to the Court of Sessions for trial in accordance with law along with S.T. Case Nos. (S) 23 and (S) 30 of 2021, to be tried by the same court, one after the other. 23. It is made clear that the Court of Sessions shall regulate the manner and sequence of trial in accordance with law and shall independently appreciate the evidence in each case. 24. Interim order, if any, passed earlier stands vacated.