In cases where two counter cases are to be tried by the same Court and the facts of the case are such that, if one case is true, the other must be false, it is not fair or proper for the same Public Prosecutor to conduct both the cases.

( 1 ) THIS revisional application arises out of an application filed under section 401 read with Section 482 of the Criminal Procedure Code. According to the petitioners, the petitioner No. 1 is the owner of 0. 07 satak land within p. S. Jayanagar, 24 Parganas (South) being Dag No. 1268/1768. In the year 1987 the petitioner No. 1 was urgently in need of money and as such, he sold 0. 05 satak land out of the above mentioned Dag Number in favour of one Smt. Reba Das, Opposite Party No. 2. Said 0. 05 satak land was sold in favour of the Opposite Party No. 2 by a Registered Deed. But all on a sudden the Opposite Party No. 2 and her associates started claiming the entire 0. 07 satak land of the said plot and tried to give fencing around the said land. Due to this the petitioner No. 1 had to report the matter to the police station and as a result of that a Jayanagar Police Station Case no. 13 dated 20. 081987 was started. After investigation, charge sheet was submitted against the accused persons under Section 420/114/120b of the indian Penal Code. The petitioner has stated that the accused persons of that G. R. Case filed a petition under Section 156 (3) of the Criminal procedure Code and on the basis of that a criminal case was started against the petitioners and ultimately charge sheet has been submitted under Section 420/120b of the Indian Penal Code. Both the cases arise out of the same incident and those are pending before the learned Judicial Magistrate, 5th court. Alipore. One Assistant Public Prosecutor has been appointed to conduct both the cases. He is conducting the prosecution so far as both the cases are concerned before the learned Magistrate. The petitioner filed an application before the learned Magistrate and brought this fact to the knowledge of the Court. As the same Assistant Public Prosecutor is conducting both the cases, so the petitioner apprehended that the prosecution cannot be conducted fairly by the said Assistant Public Prosecutor as because in one case he is' to support the version of the de facto complainant while in another case he is to support the claim of the accused persons at whose instance the other criminal case has been instituted. According to the petitioner, appointment of a Single Assistant Public Prosecutor for conducting both the cases has caused serious miscarriage of justice and as such, he submitted before the Court that two separate Assistant Public Prosecutors should be appointed to conduct both the cases separately. But the learned magistrate rejected the submission of the petitioner without caring for the basic principles of criminal Jurisprudence. The order as passed by the learned Magistrate on 26. 08. 1998 is violative of the principle of fair trial and as such, it requires intervention by this Court. The petitioner has prayed for setting aside order passed by the learned Magistrate.

( 2 ) I have heard the submissions made by the learned advocate for the petitioners as well as the learned Advocate for the State. It is the admitted position that, on the basis of a written complaint filed by the petitioner no. 1 a criminal case was started against the opposite party No. 2 over the dispute in respect of land bearing Dag No 1268/1768. It further appears from the copy of another written complaint that at the instance of the opposite party No. 2 another criminal case was started against the present petitioners over the self-same landed property. There is no dispute that in both the cases charge sheets have been filed and both the cases are pending before the learned Judicial Magistrate, 5th Court, Alipore for trial. There is also no dispute that one Assistant Public Prosecutor is in-charge of both the cases for conducting the prosecution. It appears from the copy of the F. I. R. that in one case the complainant has claimed that the accused persons in collusion with each other had cheated her by depriving her of. 02 satak of land by claiming that prior to her deed ther