Both main and counter cases stemming from the same incident must be tried by the same Judge to prevent conflicting judgments.

O R D E R

Petitioner is the de facto complainant in crime No.125/2008 of Marayur Police station which is now pending as S.C.218/2009 on the file of Sessions court, Thodupuzha taken cognizance by the learned Magistrate as C.P.18/2009 on Annexure-A2 final report, for the offence under Sections 324, 341, 326 and 308 read with Section 34 of Indian Penal Code and later committed to the Sessions court as exclusively triable by the Sessions court. As is clear from Annexure-A2 final report crime No.125/2008 is the counter case of the main case which is crime No.124/2008. Judicial First Class Magistrate, Devikulam has taken cognizance for the offences under Sections 326, 324 and 294(b) on Annexure-A5 final report in crime No.124/2009. It is now pending as C.C.197/2009. This petition is filed under Section 407(1) of Code of Criminal Procedure to direct the learned Magistrate to transfer that case to Sessions court to be tried along with S.C.218/2009.

2. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard.

3. When there is a main case and a counter case in respect of the same incident, both cases are to be tried by the same court. Though joint trial is not possible, it is to be tried one after the other. Evidence in the main case is to be recorded first and thereafter evidence of the counter case is to be recorded and both cases are to be disposed by separate judgments on the same day though evidence in the main case cannot be looked into in the counter case. So also, evidence in the counter case cannot be looked into the main case. The only mandate is that both cases are to be tried by the same Judge one after the other, so that conflicting decisions could be avoided. When Annexure-A2 final report, based on which cognizance was taken for the offences exclusively triable by the Sessions court and later committed to the Sessions court and taken on file as S.C.218/2009, shows that it is the counter case and crime No.124/2009 is main case and it is now pending as C.C.197/2009. Hence it is absolutely necessary to try both the cases by the Sessions court. There is no bar for committing the case involving offences which are not exclusively triable by the Sessions court, to a Sessions court under Section 323 of Code of Criminal Procedure on satisfaction of the Magistrate that the case is to be tried by the Sessions court. When counter case is to be tried by the Sessions court, necessarily main case is also to be tried by the same Sessions court.

4. Clause (iii) of Sub Section 1 of Section

407 of Code of Criminal Procedure provides that whenever it is made to appear to the High court that any particular case be committed for trial to a Court of Session, High Court can direct the Magistrate to commit the case to the Sessions court. When it is clear that C.C.197/2009 is main case and counter case is now committed to the Sessions court and pending trial as S.C.218/2009, Judicial First Class Magistrate, Devikulam is to be directed to commit C.C.197/2009 to the Sessions court. In the circumstances of the case, I do not find it necessary to issue notice to respondents 2 to 4 as case is necessarily to be committed to the Sessions court. Learned Magistrate is directed to intimate the accused before committing the case to the Sessions court.

Petition is disposed. Judicial First Class Magistrate, Devikulam is directed to commit C.C.197/2009 to Sessions court, Thodupuzha after intimating the accused. Sessions Judge is directed to proceed with trial of S.C.218/2009, after receipt of C.C.197/2009 committed by the Magistrate. Learned Sessions Judge to try both the cases separately but one after the other.

M.SASIDHARAN NAMBIAR, JUDGE.

uj.