( 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 Session on the ground that both the cases will have to be tried by the Court of Session 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 Session, the Magistrate can commit the case to the Court of Session 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 Session.

( 2 ) REPELLING this argument, the learned advocatefor the 1st and 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 Session as the other case which is exclusively triable by the Court of Session, 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 case, passed the order committing the case to the Court Session. 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 and 2 that the Court of Session 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 and 111/93. The offences alleged in Cr. No. 111/93 are exclusively triable by the Court of Session. Therefore, the said case was committed to the Dist. and Sessions Judge, D. K. Mangalore, which is pending in S. C. 45/94. Whereas, Cr. No. 110/93 was not exclusively triable by the Court of Session as the offences allege against those accused persons are under Ss. 143, 147, 148, 447, 324, 326 r/w S. 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 Session was committed under S. 209 by the Magistrate, and that case is pending in SC 45/98. Respondents 1 and 2 herein made an application under S. 209 Cr. P. C. to commit the case to the Court of Session on the ground that both the cases will have to be tried by the same Court viz. the Court of Session, Mangalore. The learned Magistrate after hearing both the parties allowed that application and ordered to commit the case to the Court of Session. 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 AIR 1956 AP 17 : (1956 Cri LJ 24) Ummadi Pulla Reddi. 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 Session for trial and the Magistrate framed charges against A-2, 3, 5 and 7 under S. 323 IPC, committing the said accused to the Sessions Court on the ground that that case was treated as a counter case in PCR 2/54. The accused will have to take their tria

Click Here to Read the rest of this document