Ujjal Bhuyan, J.

1. Heard Mr. TJ Mahanta, learned Senior Counsel appearing for the Gauhati High Court and Mr. NNB Choudhury, learned Senior Government Advocate, Arunachal Pradesh. This reference has been made under Section 395 of the Code of Criminal Procedure, 1973 (Cr.P.C.). Question for consideration in this reference is as under:-

"Whether in the light of Section 223 (d) Cr.P.C. was the Additional District and Sessions Judge, Basar justified in directing separate trials in respect of Aalo Police Station Case Nos. 113/2016, 02/2013 and Likabali Police Station Case No. 29/2011 though all the offences relatable to the above cases were allegedly committed in the course of the same transaction?"

2. BSR/SESS-1/2016 (State v. Martin Bagra & Hikar Ado) has been registered in the Court of Addl. District and Sessions Judge, Basar arising out of Aalo PS Case No. 113/2016, under Sections 376/506 IPC. On 20.06.2016, learned Addl. District and Sessions Judge, Basar charged accused Martin Bagra under Sections 376/506/201 IPC and accused Hikar Ado under Section 212 IPC.

3. However, learned Addl. District and Sessions Judge, Basar took the view that since Section 212 IPC is triable by a Magistrate, the case record of accused Hikar Ado was transferred to the Court of Chief Judicial Magistrate, Aalo for trial.

4. Likewise, BSR/SESS-836/2013 (State v. Marge Loyi & Ors.) has been registered before the Court of Addl. District & Sessions Judge, Basar arising out of Aalo PS Case No. 02/2013, under Sections 302/147/148/149/427/435 IPC. By order dated 24.2.14, learned Addl. District and Sessions Judge, Basar charged accused Marge Loyi under Section 302 IPC. She also charged other 14 accused persons under Sections 147, 148, 149, 427, 435 IPC. Since the above sections are triable by a Magistrate, therefore, learned Addl. District & Sessions Judge, Basar transferred the case of the 14 other accused persons for trial before the Chief Judicial Magistrate, Aalo.

5. In BSR/SESS-831/2012 (State v. Mun Phukan & Ors.) arising out of Likabali PS Case No. 29/2011, under Sections 120(B)/307/324/394/34 IPC pending in the Court of Addl. District and Sessions Judge, Basar, an order was passed on 20.06.2014, thereby charging accused Mun Phukan and Sri Kari Taipodia under Sections 120(B)/307/324/394/34 IPC. The Court also charged Sri Niranjan Boruah under Section 166 IPC. It was observed that since Section 166 IPC is triable by a Magistrate, therefore, learned Addl. District and Sessions Judge, Basar directed transfer of the case record of accused Niranjan Boruah to the Court of Chief Judicial Magistrate, Aalo for trial.

6. Learned Chief Judicial Magistrate, West Siang District, Aalo in his reference has referred to Section 223 (d) Cr.P.C. and has stated that the decision to bifurcate the cases was not justified in law. Besides such splitting up of cases would cause inconvenience to the prosecution as well as to the defence inasmuch as, the same set of witnesses would have to depose in two Courts for offences arising out of the same transaction.

7. This Court, while issuing notice in the reference on 24.01.2018, had stayed further proceedings in the above three cases.

8. Submissions made by learned counsel for the parties have been considered.

9. Section 223 Cr.P.C. deals with the question as to what persons may be charged jointly. Section 223 Cr.P.C. is extracted hereunder:-

"223. What persons may be charged jointly -

The following persons may be charged and tried together, namely:-

(a) persons accused of the same offence committed in the course of the same transaction;

(b) persons accused of an offence and persons accused of abetment of, or attempt to commit, such offence;

(c) persons accused of more than one offence of the same kind, within the meaning of section 219 committed by them jointly within the period of twelve months;

(d) persons accused of different offences committed in the course of the same transaction;

(e) persons accused of an offence which includes theft,