ORDER
M.P. Chinnappa, J.
1. The Learned Counsel for the petitioners has vehemently argued that the learned magistrate has committed an error in committing the case to the Court of Sessions on the ground that both the cases will have to be tried by the Court of Sessions as they are a case and a counter case even if the case in question is not exclusively triable by the Sessions Judge. He further emphasised that only if both the cases are triable exclusively by the Court of Sessions, the Magistrate can commit the case to the Court of Sessions and not otherwise. He further submitted that the witnesses have no locus standi to make an application to the Court to commit the case to the Court of Sessions.
2. Repelling this argument, the learned advocate for the 1st & 2nd respondents submitted that it is a settled law that if there is a case and a counter case, both the cases will have to be tried by the same Court, lest it would lead to confusion and also inconsistent Judgments. He further submitted that notwithstanding the fact that one case is triable by the Court of Magistrate, still it has to be committed to the Court of Sessions as the other case which is exclusively triable by the Court of Sessions, will have to hold trial in both the cases to avoid conflicting judgments. He further submitted that though the application was made by the applicants before the Court to commit the case, the Court after considering the merits and demerits of the case, passed the order committing the case to the Court of Sessions. That would in no way cause prejudice to the accused persons.
3. The learned S.P.P. also submitted in support of the argument of the Learned Counsel for respondents 1 & 2 that the Court of Sessions will have to dispose of both the cases simultaneously though conducting different trials. He also submitted that there is no irregularity or illegality in the order being passed by the Learned magistrate. Therefore, the petition may be dismissed.
4. The brief facts of the case there is no dispute are that Kota Police filed a charge sheet in Cr. Nos. 110 & 111/93. The offences alleged in Cr.No. 111/93 are exclusively triable by the Court of Sessions. Therefore, the said case was committed to the Dist. & Sessions Judge, O.K. Mangalore, which is pending in S.C. 45/94. Whereas, Cr.No. 110/93 was not exclusively triable by the Court of Sessions as the offences alleged against those accused persons are under Sections 143, 147, 148, 447, 324, 326 r/w Section 149 of the IPC. These two crime numbers came to be registered in respect of a solitary incident that occurred on 20,10.93 at 9.00 A.M. at Chemthadi of Belur Village alleging that in both the cases, the accused persons were members of unlawful assembly the common object of which was to commit the murder of C.W. 2 Aitha Poojary and in that connection both the parties have committed various offences. As stated above, where the case which was exclusively triable by the Court of Sessions was committed under Section 209 by the Magistrate, and that case is pending in SC 45/98. Respondents 1 & 2 herein made an application under Section 209 Cr.P.C. to commit the case to the Court of Sessions on the ground that both the cases will have to be tried by the same Court viz. the Court of Sessions, Mangalore. The learned Magistrate after hearing both the parties allowed that application and ordered to commit the case to the Court of Sessions. This order is questioned in this petition.
5. To substantiate his argument, the learned Counsel for the petitioners has placed reliance on a decision reported in UMMADI PULLA REDDI AND ORS., AIR 1956 AP 17 In that case, there was a case and a counter case before the Court. The Magistrate has committed both the cases to the Court of Sessions for trial and the Magistrate framed charges against A-2, 3, 5 & 7 under Section 323 IPC. committing the said accused to the Sessions Court on the ground that case was treated as a counter case in PCR 2/54. The accused will have to take their trial on the charges framed against them before the Court of Sessions, sitting at Ananthapur, Therefore, the petition was filed for quashing the said order committing the case to the Court of Sessions. The High Court held that it is an illegal order.
6. Following the decisions of the Full Bench of the Madras High Court in 1933 Mad. WN 550 and also the decision rendered by the Full Bench of the same 'Court reported in : AIR1933Mad367 and also in 1934 Mad. WN 272 the Madras High Court has held that in cases exclusively triable by Sessions Court, the Magistrate shall commit the accused to Sessions. Even in regard to an offence covered by Section 254, a Magistrate has power to commit an accused to Sessions. At the same time, the power to commit is an exception to the general rule that if an offence is triable by a Magistrate he shall do so. Therefore, he must exercise his discretion to commit the accused to Sessions in such a case judicially and not capriciously, Therefore, under Section 347 Cr.P.C. a Magistrate has power to commit an accused to sessions though he is competent to try the case and also adequately punish the accused. It is further held that committing a case which the Magistrate is competent to try and in which he can adequately punish the accused on the ground that the counter case against the accused has been committed to sessions is irregular.
7. He also placed reliance on a decision reported in KAMALASHANKAR B. DAVE v. STATE AND ANR., 1963 (1) Cr. L.J. 525 wherein the Gujarat High Court also had occasion to deal with Section 347 and held that merely because the case which the Magistrate is competent to try and which he can adequately punish is connected with other cases which are exclusively triable by the Court of Sessions, is no ground for committing the former case to the Court of Sessions, unless of course the connection between the cases is of such a character as to embarrass or prejudice the accused in which event it can be legitimately said that the case is one which ought to be tried by the Court of Sessions. The ground that the other cases which are committed to the Court of Sessions are interrelated with the case and that most of the evidence, oral and documentary, would be common in all the cases is not a valid ground for saying that the case is one which ought to be tried by the Court of Session and the Magistrate is not entitled to make an order of committal on such a ground under Section 347.
8. In ARJUN SINGH v. GANGOTRI SINGH AND ORS., : AIR1956Pat530 it is held that the rule that counter-cases should ordinarily be tried by one and the same Court is not a rule which is or can conveniently be, universally adhered to. As an instance it is stated that the allegations made by one party made out a case which is exclusively triable by a Court of Session. The allegations made in the counter-case make out a case which is triable by a Magistrate. It will be quite inconvenient if the latter case be transferred to the Sessions Court to be tried along with the former. It is further held that the rule is one of convenience and provisions of the Cr.P.C. cannot be ignored in order to give effect to it. In all these cases, the various High Courts have discussed the scope and ambit of Section 347 Cr.P.C. which is corresponding to new Section 323 of the Cr.P.C., 1973.
9. However, repelling this argument, the learned Counsel for respondents 1 & 2 has drawn my attention to the commentary of Criminal Procedure Code, 1973, of Section 323 by D.D. Basu at pages 804 and 805 II Edition which deals with Section 323 under the sub-heading 'Ought to be tried' which reads:
'1. As has been stated earlier, this expression enables commitment to a Court of Session of a case even where it is not exclusively triable by the Court of Session.
2. The ambit of the word 'ought' is left to the determination of the Magistrate who was holding the inquiry or trial, but the following indications as to cases where the Magistrate should commit under this section may be discerned:
(i) Where the Magistrate forms the opinion that it would not be within his powers to award adequate punishment, even though he had jurisdiction to try.
If however, Section 325 be applicable to the facts of the case, and the adequate punishment would not exceed 7 years, the magistrate should submit the case to the Chief Judicial Magistrate, instead of committing the case of the Court of Session under Section 323 (see, further, under Section 325, post)
(ii) Where, though the magistrate is in a position to award adequate sentence, but a statutory prohibition comes in, preventing the Magistrate from trying the case, e.g., 306 (5)(a)(i), under which where cognizance is taken by the Chief Judicial Magistrate and he has tendered pardon and examined an approver under Section 306(4), it is obligatory upon the Chief Judicial Magistrate to commit the case for trial to the Court of Session, even though the offence is not exclusively triable by a Court of Session.
(iii) The gravity of the charge. In such a case, the application of the accused himself may be a relevant factor.
(iv) The public importance of the case or the likely effect of the decision in the case on the public mind.
(v) Where a complicated question of law is involved.
(vi) Where some connected matter is already before the Court of Session.'
10. In 1993 All. L.J. 78 it is held that Magistrate can commit cross-case to Sessions Court even if it was exclusively triable by him. It is held by the Division Bench of the Bombay High Court following the ruling in BANAPPA KALLAPPA v. EMPEROR, 1944 AIR Bom 146 as follows:
'that when two cases arise on the basis of cross-complaints based upon the same incident, it is desirable in the interest of justice that both cases are heard one after the other by the same presiding Judge and judgments are delivered after the completion of hearing in both cases. This will avoid the possible contingency of conflicting findings being given. Each case must be decided on the evidence led on the record of that case and the Presiding Judge shall not use evidence in one case as evidence in the other.
If one of the two cases is exclusively triable by the Court of Session the Magistrate has no right to try that case, and the Court of Session can try a case relating to any offence under the Penal Code as provided in Section 26 of the Code. In these circumstances, the Magistrate must direct that the cross case arising out of the same incident requires to be tried by the same Court in view of the principle laid down by the case law of the Bombay High Court and the compliance with that principles is possible if the other case, which is triable by him, is also committed to the Court of Session for trial along with the case already committed.
Held, that the Magistrate ought to have accepted the request of the complainant and ought to have transferred case No. 980/P of 1974 also to the Court of Session, Greater Bombay. Since he failed to exercise the option which was available to. him, the Magistrate was directed to commit case No. 980/P of 1974 to the Court of Session, and the Court of Session was further directed to try the newly committed case in quick succession after the case committed earlier by the same presiding Judge who would deliver judgments thereafter in both cases.'
11.Their Lordships of the Supreme Court in KEWAL KRISHNA v. SURAJ BHAN, : 1980CriLJ1271 have held:
'Where two cases exclusively triable by the Court of Session, one instituted on a police report under Section 173, Cr.RC. and the other initiated on a criminal complaint, arise out of the same transaction, if the two cases are tried by two different courts, there is a risk by two Courts coming to conflicting findings. To obviate such a risk, it is ordinarily desirable that the two cases should be tried separately but by the same Court. AIR 1944 Bom. 14; 1937 Mad WN 998 and AIR 1923 Cal 644, Rel. on.'
So from this it is clear that it is not a hard and fast rule that a case and a counter case should be tried by the same Court. But to avoid conflicting decisions, it is desirable that both the cases be tried by the same Court.
12. In this case as stated above, the offences alleged against the petitioners are punishable under Sections 143, 147, 148, 447, 324, 326 r/w Section 149 IPC which admittedly can be tried by the Court of the Magistrate. It is also an undisputed fact that both the cases arise from a same incident and investigation was conducted by the same investigating officer of the police station. Both the charge sheets were lodged before the same Court. As far as Section 323 corresponding to old Section 347, the Magistrate can commit the case which is exclusively triable by him only after enquiry or trial wherein he comes to the conclusion that the offence committed by the accused, the accused deserves to be convicted for more punishment than which he could impose on the accused persons either to the Judicial Magistrate or to the Sessions Court as the case may be. If not, he is empowered to impose the punishment as provided under the IPC for the respective offences.
13. It is not a case wherein the Court has come to the conclusion after holding enquiry or trial that the case will have to be committed to the Court of Sessions on that ground. But he came to the conclusion that the case which was committed and the case pending before him are treated as a case and counter case and it is desirable that both the cases be tried by the Court of Sessions and therefore, while acting under Section 209 r/w Section 347 commit the same and not when the offences alleged against them should be tried exclusively by the Court of Sessions or that the accused deserve more punishment than what he can impose. According to Section 209 Cr.P.C. the Magistrate can commit the case to the Court of Sessions when the offence is exclusively triable by it. This is the difference between Sections 209 & 437 Cr.P.C.,
14. But the general principle is that the case and a counter case should be tried by the same Judge consecutively and pronounce the Judgment simultaneously so as to avoid conflicting Judgments. In view of this principle, it is always desirable that the case and counter case be tried by the same Court.
15. The case which is exclusively triable by the Court of Sessions, the Magistrate cannot try both the cases. Therefore, the one which is exclusively triable by the Court of Sessions ought to be committed under Section 209 and therefore, it follows that the case which could be tried by the Magistrate Court should also be committed to the Sessions Court which has the power to try both the cases in view of Section 26 of the Cr.P.C. Therefore, it cannot be said that the Magistrate has erred in committing the case on hand to the Court of Sessions. More particularly because he has taken into consideration the purpose and object of trying both the cases together by the same Court as indicated above. Therefore, the contention of the Learned Counsel for the petitioners that the magistrate ought not to have committed the case on hand to the Court of Sessions when the offences could be tried by him, cannot be accepted.
16. The Learned Counsel for the petitioners further contended that the Magistrate ought not to have committed the case by entertaining the application filed by respondents 1 & 2. The respondents have no locus standi to make such application. On the other hand, the Magistrate could suo motu commit the case or on the application of the prosecution. This argument is not without force and the learned magistrate also has answered this point. The application filed by the respondents 1 & 2 can only be treated as the one that the case was committed to the Court of Sessions brining to the notice of the Court that it is a question of a case and counter case and the matter has to be tried by the Court of Sessions. That itself would not make the order illegal as the learned magistrate has exercised his discretion by his detailed order and he has also rightly covered this point in his order. Under those circumstances, the question of locus standi as far as brining to the notice of the Court certain existing facts would not arise or the order cannot be treated as illegal. The Magistrate has given cogent and convincing reasons as to why the case has to be committed.
17. In addition to that, the offence for which these petitioners will have to face trial also is under Section 326 IPC voluntarily causing grievous hurt by dangerous weapons or means which is punishable with imprisonment for life or with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine. Whether the petitioners have committed the offences or not is a question of fact to be tried by the Trial Court. But the fact remains that a major offence also is alleged against these petitioners.
18. The Learned Counsel for the petitioners further argued that if for the convenience of the parties the case if committed to Sessions, the valuable right of the accused persons to prefer an appeal to the Sessions Court in the event that the trial were to and in convicting an accused person, would be lost. This argument cannot be held to be a valid ground. The right of appeal will always be available to the accused persons by approaching the High Court, even if they are convicted by the Court of Sessions. They might be deprived of one step but that itself cannot be a ground to hold that prejudice would be caused to the accused persons.
For the foregoing reasons, I hold that the order passed by the learned Magistrate which is impugned in this petition does not call for interference. Accordingly the petition is dismissed.