A case triable by a Magistrate cannot be committed to the court of session merely because the counter-case is committed to and is pending trial before a sessions court.

Chaudhary Sia Saran Sinha, J.

1. In this application under Sec.482 of the code cf Criminal Procedure, the six petitioners, who are arrayed as accused in mahua P. S. Case no.4 dated 6-11-1977, have prayed for the quashing of the impugned order dated 5-12-1978, passed by the Judicial Magistrate where this case is perding, by which treating it as accunter-case i. e has decided to commit it to the court of sessicns to be tried along with Mahua P. S. Case no.3 (11)/77 under Sec.307 I. P. C. already committed to the Couit of Sessions.

2. Alleging assault on him by Chandra Rai and others, Ram Lagan Rai, one cf the petitioners, lodged an information before the police in respect of an offeree under Sec.307 I. P. C. The case was investigated by the police after registering Mahua P. S. Case no.31 (11)/77 and charge-sheet was submitted against Chandra Rai and ethers arraying them as accused and they were subsequently committed to the Court of Sessicns where the sessions trial is pending.

3. Mahua P. S. Case no.4, dated 5-11-77 was registered on the statement of Chandra Rai above-named, under Secs, 147, 148, 323 and 324 I. P. C. against ram Lagan Rai and five others, the petitioners of this case, by way of a counter-case. The police submitted charge-sheet in this case also and it was transferred to the Court of the Judicial Magistrate Shri M. Hasan for disposal. Chandra rai filed a petition before the Judicial Magistrate for the counter-case also being committed to the court of session on the ground that Mahua P. S. Case no.3 (11)77 had already been committed to the court of sessioon. The petitioners objected to this prayer of Chandra Rai. By the impugned order, for the reasons stated therein, the Judicial Magistrate allowed the prayer of the informant and after rejecting the submission made on behalf of the petitioners fixed 18-12-78 for transferring Mahua P. S. Case no.4, dated 5-11-77, also to the court of session. It is this stage that the petitioners have approached this court for quashing the impugned order.

4. The offences alleged against the petitioners in the counter-case above-mentioned are those under Secs.147, 148, 323 and 324 I. P. C. and the-charge-sheet too has been submitted under these section. While the maximum punishment under Secs.147 and 148 I. P. C. is two years and three years respectively, the maximum punishment for the offence under Sec.323 I. P. C. is one year and that under Sec.324 I. P. C. is three years. Relying on a decision of this court reported in 1978 BBCJ page 663 (Prayag Mahto and others V/s. The State of Bihar), the submission of the learned counsel for the petitioners was that the impugned order was liable to be set aside. This is a Division Bench decision of this Court where, after noticing the earlier Division Bench decision of this Court reported in 1974 BBCJ page 442 (Gauri Shankar Prasad Singh V/s. State of Bihar)and disagreeing with the view taken therein on the ground that case related to the (old) Code of Criminal Procedure, 1898, their Lordships held that if there are two cases by way of a case and a counter-case, and one is exclusively triable by a court of session whereas the other is triable by a Magistrate, the commitment of the first case to the court of session on the ground of its being exclusively triable by a court of session cannot be a ground for committing the other case also, which is triable by a Magistrate, to the court of session. The view taken by the earlier Division Bench of this court in the case of Gauri Shankar Prasad Singh v. State of Bihar (supra) was that there was nothing in the Code to indicate any special procedure for the trial of such cases to be adopted, but the courts have tried to find out a reasonable via media keeping in view the provision of the code and ends of justice. Their Lordships further observed that it was true that where a person accused of an offence triable by a Magistrate, is committed to the court of session on the ground that the count