Hon’ble Suneet Kumar, J.—The applicant has approached this Court assailing the order dated 17 November 2015 passed by the Additional Sessions Judge, Court No. -V Mathura in Sessions Trial No. 84/10 (State v. Girraj and others) under Sections 147, 148, 149, 324, 325 and 326 IPC rejecting the application for consolidating the case with complaint Case No. 2394 of 2011 (Gopal Sharma v. Smt. Anita and others) under Sections 147, 148, 149, 323 and 336 IPC.

2. Submission of the learned counsel for the applicant is that the Court below committed an error in rejecting the application merely on the statement made by the other side that it is not a cross case, whereas, it was incumbent upon the Court to have satisfied itself as to whether, it was a cross case and, that the persons would not be prejudicially affected if the cases be tried together. It is further sought to be submitted that under Section 223 of the Code, primary condition is that the person should have been accused either for the same offence or different offence “committed in the course of same transaction”, thus where there is commonality with purpose or design, and where there is a continuity of action then all those persons involved can be accused for the same and different offences committed in the course of same transaction.

3. In order to understand the above issue, it is useful to refer Section 223 (d) of the Code which reads as under:

223. What persons may be charged jointly.—The following persons may be charged and tried together, namely:—

(a) xx

(b) xx

(c) xx

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

(e) xx

(f) xx

(g) xx

4. In Harjinder Singh v. State of Punjab and others, (1985) 1 SCC 422, the question before the Court was whether under Section 223 of the Code it is permissible for the Court to club and consolidate the case on a police challan and the case on a complaint where the prosecution versions in the police challan case and the complaint case are materially different, contradictory and mutually exclusive. The question was whether the Court should in the facts and circumstances of the case direct that the two cases should be tried together but not consolidated i.e. the evidence be recorded separately in both cases and they may be disposed of simultaneously except to the extent that the witnesses for the prosecution which are common to both may be examined in one case and their evidence be read as evidence in the other. After analyzing the factual details, the Court concluded :

“8. In the facts and circumstances of this particular case we feel that the proper course to adopt is to direct that the two cases should be tried together by the learned Additional Sessions Judge but not consolidated i.e. the evidence should be recorded separately in both the cases one after the other except to the extent that the witnesses for the prosecution who are common to both the cases be examined in one case and their evidence be read as evidence in the other. The learned Additional Sessions Judge should after recording the evidence of the prosecution witnesses in one case, withhold his judgment and then proceed to record the evidence of the prosecution in the other case. Thereafter he shall proceed to simultaneously dispose of the cases by two separate judgments taking care that the judgment in one case is not based on the evidence recorded in the other case.....”

5. In Balbir v. State of Haryana and another, (2000) 1 SCC 285, Supreme Court considered clauses (a) and (d) of Section 223 of the Code and held that the primary condition is that persons should have been accused either of the same offence or of different offences “committed in the course of the same transaction”. The expression advisedly used is “in the course of the same transaction”. That expression is not akin to saying “in respect of the same subject-matter”. For several offences to be part of the same transaction, the test which has to be applied is