The discretion of the court to decide whether two cases need to be jointly tried, considering the provisions of S.223, S.210, and S.218(1) of the Code, and the interpretations and decisions in relevant case law.

All the five petitioners are accused in two criminal cases, one instituted on police report (Annexure-I) and another instituted on a complaint filed by the first respondent (Annexure-II). The incident which gave rise to both cases was the same. Learned magistrate, who took the complaint case on file when the police case was pending in his court, has now ordered that both cases "would be tried together, but not

consolidated". The accused are aggrieved by the said order. Hence they have come up with this petition to quash it.

2. Learned magistrate referred to the decision of the Supreme Court inHarjinder Singh v. State of Punjab (AIR 1985 SC 404) and the decision of this Court in Mani v. Swaminathan (1986 KLT 170) to support the course of procedure which he has adopted with the two cases.

3. Facts alleged in both cases are substantially the same, the persons arrayed as accused in both cases are the same and the offences mentioned in both cases are also the same. According to the learned counsel for the petitioners, unless the two cases are tried together as envisaged in S.223 of the Code of Criminal Procedure (for short 'the Code') prejudice would be caused to the accused besides the hardships which they have to bear in facing two criminal prosecutions on the same incident.

Referred to

4. Under S.223 of the Code, persons accused of the same offence or even different offences "committed in the course of the same transaction" can be charged and tried together. When the Code permits all persons accused of the same or different offences committed in the course of "the same transaction" it is useful to know whether the offences alleged in a case would have been committed in the course of the same transaction. The expression " same transaction" is not defined in the Code and the Supreme Court has pointed out in State of A.P. v. Cheermalapati Ganeswara Rao (1964 (3) SCR 297) that it would be difficult to define precisely what that expression means. Their Lordships further stated thus: "Whether a transaction can be regarded as the same would necessarily depend upon the particular facts of each case and it seems to us to be a difficult task to undertake a definition of that which legislature has deliberately left undefined. We have not come across a single decision of any court which has embarked upon the difficult task of defining the expression. But it is generally thought that where there is proximity of time or place or unity of purpose and design or continuity of action in respect of a series of acts, it may be possible to infer that they form part of the same transaction".

5. When S.223 says that such cases "may be charged and tried together" what is contemplated is joint trial of such cases. The practical method to achieve the same is the following: There need be only one trial for both cases. One of the cases can be treated as the main case. All witnesses can be examined and all documents can be marked in that case. Examination of all accused as provided in S.313 of the Code can also be held in that case. All such evidence can be treated as evidence adduced in the other case also. Both cases can be disposed of by a common judgment. If the aforesaid procedure is adopted there is no consolidation of the two cases together. If two cases are consolidated with each other identity of at lease one case would be lost. But in a joint trial, as indicated above, identity of both cases are kept alive though separate evidence is not collected in both cases.

6. It is in the discretion of the court to decide whether two cases need be jointly tried. The commencing words in S.223 of the Code are: "May be charged and tried together". From those words what can be discerned is that a discretion is conferred on the court to decide whether any particular two or more cases need joint trial if offences have been committed in the course of the same transaction. If the cases arc substantially different from each other, though the same incident is th