JUDGMENT

B. P. DAS, J. — This application arises out of an order passed by the learned Sessions Judge, Balasore in G. R. Case No. 1194 of 1997, corresponding to S.T. Case No. 98 of 2001 in transferring the same to the Court of Judicial Magistrate, Basudevpur.

2. The case of the petitioner is that he is an accused in G.R. Case No. 1195 of 1997 for the offences under Section 148/149/452/323/324/326/307/379, I.P.C., which was subsequently turned to Section 302, I.P.C. The petitioner is also the informant in G. R. Case No. 1194 of 1997, wherein the informant in the other case, was charged for commission of the offfences punisha¬ble under Sections 341/323/324, I.P.C. read with Section 34, I.P.C.

4. G. R. Case No. 1195 of 1997 being exclusively triable by the Court of Session, the learned Magistrate committed the said case to the Court of learned Sessions Judge, Balasore which was subsequently registered as S.T. No. 60/99/2001 and the learned Sessions Judge transferred the said record to the file of learned Addl. Sessions Judge, for trial.

5. Learned Magistrate by his order dated 28.1.1999 was pleased to observe that G. R. Case No. 1194 of 1997 is a counter case to G. R. Case No. 1195 of 1997 and transferred the same to the Court of the learned Sessions Judge for trial. Learned Ses¬sions Judge in turn by his order dated 9.10.2001 sent back the record of G. R. Case No. 1194 of 1997 to the learned J.M.F.C., Basudevpur for disposal according to law as the same was not triable exclusively by the Court of Session relying upon a judg¬ment of this Court rendered in Rama Chandra Patal v. State of Orissa and others, reported in [*(1998) 15 OCR 100] and Budhadev Panda v. State of Orissa and others, reported in [(1995) 8 OCR, 104.]

6. The petitioner in this application challenges the aforesaid order on the ground that the learned Sessions Judge is not justified in returning back the records of G. R. Case No. 1194 of 1997 to the Court of learned Magistrate on the face of finding of the learned Magistrate that both the cases are counter to each other, and should be tried together.

7. Now the question arises whether in the given circum¬stances the recourse taken by the Magistrate by committing a counter case to the Court of Session where the other case is pending is wrong and only recourse available is under Section 407, I.P.C.

8. The law is well settled by various judicial pronounce¬ments that when two cases are cross-cases or counter to each other and one of such is triable by a Court of Session and the other is triable by a Magistrate, then the other case is to be committed to the Court of Session to be tried by that Court one after the other. In this regard, I may refer to a decision of the Apex Court in the case of Nathilal and others v. State of U.P. and another, reported in 1990 Supreme Court Cases (Crl.) 638, wherein the observation of the Apex Court is as follows :

“2. We think that the fair procedure to adopt in a matter like the present where there are cross-cases, is to direct that the same learned Judge must try both the cross-cases, one after the other. After the recording of evidence in one case is completed, he must hear the arguments but he must reserve the judgment. Thereafter he must proceed to hear the cross-case and after recording all the evidence he must hear the arguments but reserve the judgment in that case. The same learned Judge must thereafter dispose of the matters by two separate judgments. In deciding each of the cases, he can rely only on the evidence recorded in that particular case. The evidence recorded in the cross case cannot be looked into nor can the Judge be influenced by whatever is argued in the cross-case. Each must be decided on the basis of the evidence which has been placed on record in that particular case without being influenced in any manner by the evidence or arguments urged in the cross-case. But both the judgments must be pronounced by the same learned Judge one after the other."

9. In the pre