K. Lahiri, J.
1. This is an application Under Section 407 of the Cr.PC for transfer of G. R. Case No. 163 of 1974, pending before the Sub-divisional Judicial Magistrate, Nalbari to be tried along with G.R. Case No. 162 of 1974 (since committed under the Criminal Procedure Code (old) and registered as Sessions Case No. 13 (K-N) of 1976, and pending for trial before the Court of Session, Gauhati.
2. The aforesaid G. R. Cases are offshoot of an incident which happened on 8-2-74.
3. Petitioner No. 2 (Bibhabananda Bhattacharyya) lodged an ejahar on 8-2-74 against the opposite parties Nos. 2 to 13. The matter was investigated and a charge sheet has been submitted against the accused persons. Similarly, against the petitioners an ejahar was lodged, investigation taken up, a case registered as G. R. Case No. 162 of 1974 & the accused were committed to the Court of Session to stand their trial. Therefore, there are two cases which arose out of the same incident-one lodged by the petitioner No. 2 and the other against the two petitioners and others. In both the cases, charge sheets have been submitted. In the first case (lodged by the petitioner No. 2) charges have been framed against the opposite parties Nos. 2 to 13 Under Sections 147/326/323 of the I.P.C. The offences are not exclu- sively triable by the Court of Session, whereas, the cross case filed against the petitioners and others relates to offences Under Sections 302/147/148/149/323 of the I.P.C. and the offence Under Section 302 I.P.C. is ex- clusively triable by the Court of Session,
4. The petitioners who have sought that both the cases should be tried by the same Judge, having failed to achieve the object has come up before this Court for having G. R. Case No. 163/74 transferred to the Court of Session and to be tried together; and have taken resort to Section 407(1)(c) of the Cr.PC 1973. Section 407(1)(c) reads as follows:
407. Power of High Court to transfer cases and appeals.— (1) Whenever it is made to appear to the High Court—'
(a) * **
(b) ** **
(c) that an order under this Section is required by any provision of this Code, or will tend to the general convenience of the parties or witnesses, or is expedient for the ends of Justice,
(i) ** **
(ii) that any particular case or appeal, or class of cases or appeals, be transferred from a Criminal Court subordinate to its authority to any other such Criminal Court of equal or superior jurisdiction;
5. On the facts stated above and on the basis of the decisions one reported in 1977 Cri LJ 914 (Gau) (Muhib AH v. Basan Ali) and the other unreported being Government Criminal Appeal No. 19 of 1972, (1977 Cri LJ NOC 227 (Gau)). Shri A. K. Bhattacharyya, the learned counsel for the appellant submits that both the cases should be tried by the Sessions Judge, one after the other, in the manner in which cross-cases ought to be tried.
6. Shri A. C. Deka, the learned Public Prosecutor has submitted before me that there is no such law set-forth in the Cr.PC authorising a Sessions Judge to try cases which are not exclusively triable by it. The learned Public Prosecutor has not disputed that the cases are cross-cases; or they arose out of the same incident with counter versions.
7. The sole question for determination is as to whether it is expedient for the ends of justice that both the cases should be tried by one Presiding Officer. Admittedly the case exclusively triable by the Court of Session cannot be entrusted to be tried by a Magistrate, First Class, but there is no impediment in the way of this Court directing a Court of Session to try-cases which are not exclusively triable by the Court of Session, provided the Court finds that it is expedient for the ends of justice.
8. The manner in which cross cases are to be tried and disposed of is no longer a problem for the judiciary in view of illuminating observations of eminent Judges of India. The law has been so elaborately, lucidly and succinctly laid down by the eminent Judges that I find no difficulty at all in determining the manner in which cross-cases, arising out of the same incident, should be disposed of. Ramaswamy, J. in his illuminating judgment reported in : AIR1954Mad442 (RamakrLshnayya v. State) has set out that where there is a fight between the two rival factions which gives rise to complaint and counter complaints it is a generally recognised rule that both the cases should be tried by the same Judge in quick succession; the first case should be tried to a conclusion but the judge should defer the judgment in that case till he has heard second case to a conclusion; thereafter, he should pronounce the judgments in each case; the Judge is bound to confine his judgment in each case to the evidence led in that particular case and cannot exercise the liberty of making use of the evidence adduced in the other case and to allow his findings in one case to be influenced in any manner by the evidence of the cross-case or the statement of the accused in the said cross-case. This has come to stay as a settled practice of universal application in India, the foundation based entirely on the principles of justice, equity and fair play.
9. In Ramakrishnayya (1954 Cri LJ 610) (Mad) (supra) his Lordship considered the Bench decision of Waller and Cornish, JJ. in Goriparthi Krishtamma in Re: 1929-2 Mad Cr C 238 : 1929 Mad WN 881 and quoted with approval the following observations:
It was held therein that where there was a fight between two parties and the police charge-sheeted both and the offences against one party were triable by the Magistrate while those against the other were triable by the Sessions, that both cases should have been committed for trial by the Sessions Court on the foot of the following reasoning:
A case and a counter case arising out of the same affair should always, if practicable be tried by the same Court Each party represent themselves as having been the innocent victim of the aggression of the other. Neither will, as prosecution witnesses admit that they retaliated on the other, for the obvious reason that they are themselves on trial in the other case. As accused, they do not, as a rule let in any defence evidence, relying on the evidence they have given in the other case as prosecution witnesses. The result is that no court can grasp the real facts unless it tries both cases'.
10. The following relevant observations of Jackson, J. in Krishna Pannadi v. Emperor reported in AIR 1930 Mad 190 : 31 Cri LJ461, on the moot question, are quoted herein below:
There is no clear law as regards the procedure in counter cases, a defect which the legislature ought to remedy.
It is a generally recognized rule that such cases should be tried in_quick. succes-sion by the same Judge, who should not pronounce judgment JiU_jthe hearing of both cases is finished.
This precludes the danger of an accused being convicted before his whole case is before the Court, and also prevents there being conflicting judgments upon similar fact by But at the same time the rule involves obvious difficulty. It seems to infringe the fundamental principle that the Court must not import any facts into a case which are not to be found upon the record. To take an illustration, suppose in the first of the cases the accused succeeds in showing that the prosecution has failed to prove its charge, and then in the second case the same accused as complainant goes into the witness box and breaks down in cross-examination so as to convince the Court that the truth lies with the other side. Can the Court be expected to dismiss this circumstance from its mind, and if it does not do so, what legal justification is there for it into the case already heard?
The only way in which such a procedure can be justified is by setting up a fiction that the case and the counter case are really one' and this jiction should be made a reality by statute. If a Court were empowered to link cases, as they link files in a secretariat there would also be the incidental advantage of a great saving of time. At present in each case the evidence of every witness must be fully recorded and what P.W. 1 says for the prosecution in one case must all be writ- ten out again when he repeats it as D.W. 1 in the other case.
But whether there be a statutory enactment or not the point remains that for practical purposes a case and its counter and it is this that general observations particularly germane to the present case.
11. Although the observation of Jackson, J. is dated 164h October 1929 unfortunately no change has been brought in the Cr.PC laying down a procedure regarding the trial of counter cases — at least no such provision of law could be pointed out before me by the learned counsel appearing on behalf of the parties.
12. Prime reasons for trial of cases and counter cases arising out of the same incident by a Presiding Officer, therefore, may be summed up as under;
1) It staves off the danger of an accused being convicted before his whole case is before the Court;
2) It deters conflicting judgments being delivered upon similar facts; and
3) In reality the case and the counter case are to all intents and purposes different or conflicting versions of one incident.
There are innumerable decisions of various High Courts and it would be multiplying the numbers alone but would serve no purpose excepting a preparation of a chart or catalogue of cases on the point,
13. In Government Criminal Appeal No. 19 of 1972 : 1977 Cri LJ (NOC) 227 (Gauhati)) Rangarajan, J. speaking for this High Court took the very same view, as stated above. The same view was expressed in Mahib Ali v. Basan Ali, 1977 Cri LJ 914 (Gau) (supra). These are- Division Bench judgments and are binding on me.
14. Under these circumstances, in view of the enunciation of the law, I feel that I am obliged to transfer G, R. Case No. 163 of 1974 now pending before the Sub-divisional Judicial Magistrate, Nal-bari to the Court of the Session, Kamrup at Gauhati with a direction that both the cases should be tried by the Sessions Judge in quick succession. The first case should be tried to a conclusion, the judgment should be reserved till the second case is heard to its conclusion and thereafter the learned Sessions Judge should pronounce the judgments separately in each case. I am making it clear that the learned Sessions Judge is bound to confine his judgment of each to the evidence led in that particular case and shall not make use of the evidence in one case for the purpose of the judgment in other case or allow his findings in one case to be influenced in any manner whatsoever to the prejudice of the accused by the views which he may have formed in the other case.
15. In the result the Rule is made absolute and the petition is allowed.