Full Judgment
P.K. Tripathy, J.
1. Heard.
2. In this application under Section 482, Cr.P.C., petitioners challenge order of the Sessions Judge, Balasore in Misc. Case No. 747 of 2001 under Section 408 of the Code of Criminal Procedure, 1973 (in short 'the Code'). Admittedly, petitioners belong to the informant's group in G. R. Case No. 586 of 1998 and they are the accused in S. T. Case No. 11/23 of 2000 pending for trial in the Court of C.J.M.-cum-Assistant Sessions Judge, Bhadrak. That Sessions Case was registered on commitment of G. R. Case No. 585 of 1998 by the Court of S.D.J.M., Bhadrak. Steps taken by the petitioners for commitment of G. R. Case No. 586 of 1998 to the Court of Session as the counter case to G. R, Case No. 585 of 1998 having been turned down by learned Sessions Judge on the ground of lack of jurisdiction on the basis of the ratio in the case of Budhadev Panda v. State of Orissa and Anr., (1995) 8 OCR 104 and Pitabas Behera and Ors. v. State of Orissa, (2000) 18 OCR 174, petitioners have approached this Court.
3. Indeed, it has been held by this Court in Budhadev Panda (supra) and followed in Pitabas Behera (supra) that in the absence of any specific provision in the Code only judicial order can be passed for trial of case and counter case by the same trial Court. Thus far there is no dispute between the parties relating to the said ratio. On the other hand, basing on such principle application was moved by the petitioners under Section 408 of the Code, ft is also the ratio laid down in the said two cases that the High Court in exercise of the power under Section 407 of the Code has the jurisdiction to direct for transfer of a counter case, even if not exclusively triable by the Court of Session, to the Court of Session and such power is not there with the Sessions Judge under Section 408 of the Code.
4. Learned counsel for the petitioners argues that in view of the ratio in the case of Sudhir and Ors. v. State of Madhya Pradesh,. AIR 2001 SC 826 above ratio of this Court that it is the High Court which has only the jurisdiction to transfer the case is not correct. After perusal of the aforesaid three citations this Court finds that petitioners have confused on the ratio decided by this Court in the case of Budhadev Panda and Pitabas Behera (supra). The simple reason for the same is that when applications under Section 407 of the Code were moved in this Court and it was opposed to by the opponents, this Court examined the scope of Section 407 and laid down the principle that case and counter case should be tried by one court and therefore where such a contingency arises the High Court in exercise of the jurisdiction under Section 407 of the Code can pass order for transfer on commitment of the counter case in view of the sound judicial pronouncement that case and counter case should be tried by the same forum. On the other hand, in the case of Sudhir (supra) the Apex Court while in seisin of a similar matter has analysed the provision under Section 323 of the Code and propounded that Magistrate before whom the criminal proceeding i.e., the counter case is pending can also transfer such case to the Court of Session if it shall appear to the Magistrate at any stage of the proceeding that the case is one which ought to be tried by the Court of Session.
5. A judgment has to be appreciated and followed in the context it has been decided. In the above noted decisions of this Court no question was raised nor it was decided relating to the extent of jurisdiction of the Magistrate under Section 323 of the Code. As stated above, this Court only examined the scope and jurisdiction under Section 407 and also 482 of the Code. The ratio in the case of Sudhir (supra) does not propound that the power under Section 407 or 482 of the Code does not authorise the High Court for transfer of the counter case. Under such circumstance, this Court finds that learned Sessions Judge, Balasore is not wrong in his approach that in exercise of power under Section 408 of the Code he had no power to direct the Magistrate for commitment of G. R. Case No. 586 of 1998 to the Court of Session. Since the petitioners are conscious of the position of law under Section 323 of the Code, they could have moved before the S.D.J.M., Bhadrak for commitment of. G. R. Case No. 586 of 1990. Even now that recourse is available to them and therefore, if so advised, they may avail that forum. If any application shall be filed in that respect, learned S.D.J.M. shall do well to hear and dispose of that application in accordance with law expeditiously and as far as practicable within a period of two weeks from its filing provided such application shall be filed within three weeks from today.
6. The Criminal Misc. Case accordingly stands disposed of.