1. This is a revision application by the complainant whose application for commitment of criminal case No. 980/P of 1974 pending on the file of the Metropolitan Magistrate, 12th Court, Bandra, was rejected by the learned Magistrate.
2. Very few facts may be noted for the purpose of disposing of this revision application :
3. An incident occurred on February 17, 1974 between two groups of persons. This led to police investigation and arrest of persons from both the groups on the cross complaints lodged by them. The police investigation ultimately led to the filing of two separate cases, one being marked as case No. 979/P of 1974 and the other case No. 980/P of 1974, in the Court of the Metropolitan Magistrate, 12th Court, Bandra. The present petitioner before us is complainant in criminal case No. 980/P of 1974 and he along with others is an accused person in criminal case No. 979/P of 1974. In the same manner, the complaint in case No. 979/P of 1974 along with others represent the accused persons in criminal case No. 980/P of 1974. It may be noted that the charge levelled in the police report in case No. 979/P of 1974 includes Sections 147, 148, 149 read with Section 302, Indian Penal Code, etc. Since Section 302 was thus involved in that case, the learned Magistrate committed the case to the Court of Session, Greater Bombay, and it is now marked Sessions Case No. 891 of 1974.
4. In the other case charges include Sections 147, 148, 149 read with Section 824, Indian Penal Code. The complainant applied to the Magistrate that even this case be committed to the Court of Session because though the Magistrate undoubtedly had the power to try the case in respect of the charges contained in the charge-sheet, the rule of procedure has been laid down by this Court in the interest of justice requiring a particular type of trial of cases arising out of cross-complaints. When two cases arise on the basis of cross-complaints based upon the same incident, it is laid down by this High Court that it is desirable in the interest of justice that both the cases are heard one after the other by the same presiding Judge and judgments are delivered after the completion of hearing in both the cases. This will avoid the possible contingency of conflicting findings being given. Of course, a reminder is included in the judgments of this Court that each case must be decided on the evidence led on the record of that case and the Magistrate shall not use evidence in one case as evidence in the other.
5. It is on the basis of this principle that a request was made that criminal case No. 980/P of 1974 on the file of the learned Metropolitan Magistrate, 12th Court, Bandra, be committed to the Court of Session. He refused to do so and hence this revision application.
6. When rule was issued to the accused persons as also the State, we find that not only there was no opposition but the learned Counsel representing all sides agreed that in view of the salutary principle laid down by this Court for doing proper justice between the parties, it would be desirable that the Court of Session should hear both the cases one after the other and thereafter dispose them of.
7. We could have disposed of this case by an order which is almost a consent order. However, we wanted to find out whether such a direction could be given and whether instances like these where cross cases arise out of the same incident, the Magistrate himself ought to follow the procedure which is now being directed to be followed. The principle to which we have referred has been pronounced in the case of Banappa Kallappa v. EmperorA.I.R.  Bom. 146: 40 Bom. L.R. 166 S.C.. The learned Judges pointed out that where rival factions which have taken part in a riot are both prosecuted the two factions must be prosecuted separately, since the common intention of each of the two parties to the riot would be different and they could not be tried-in a single case. There is no objection in law to both the cases being tried by separate Judges with the help of separate juries or assessors, but such a procedure is always open to the risk of the two Courts coming to conflicting findings; and occasionally it may result in very serious injustice, one side or the other being wrongly convicted. The most desirable procedure in such cases would be that both the cases should be tried by the same Judge, though with different assessors or juries. The first case should be tried to a conclusion and the verdict of the jury or the opinion of the assessors taken. But the Judge should postpone judgment in that case till he has heard the second case to a conclusion, and he should then pronounce judgments separately in each case, He would of course be bound to confine his judgment in each case to the evidence led in that particular case and would not be at liberty to use the evidence in one case for the purpose of the judgment in the other case and to allow his findings in one case to be influenced in any manner to the prejudice of the accused by the views which he may have formed in the other case, It would be however necessary that he should try the two cases in quick succession one after the other. This being the principle laid down, it would be attracted where one single incident of riot leads to two criminal cases being filed against rival factions.
8. In the present case, admittedly the incident of riot dated February 17, 1974 has led to the present cross-complaints and cross cases. Since one of them is exclusively triable by the Court of Session, the learned Magistrate has committed that case to the Court of Session. Since the other case is triable by him, he has rejected the application of the complainant to transfer the other case also to the Court of Session and has directed that he will proceed to hear the case. It is at that stage that the complainant in criminal case No. 980/P of 1974 has filed this revision application. We find that under the new Criminal Procedure Code a separate committal proceeding as such has been dropped or curtailed. In chap. XVI dealing with the commencement of the proceedings before the Magistrates, procedure for various types of cases has been provided. Section 209 in that chapter says that when in a case- instituted on a police report or otherwise, the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall commit the case to the Court of Session. What is laid down is that on the face of the record, when he finds from the police report or otherwise that the offence alleged is exclusively triable by the Court of Session, he must commit the case forthwith without recording any evidence whatsoever. That could not be adopted as a procedure in this case by the learned Magistrate in respect of case No. 980/P of 1974. However, there is another section which incorporates the power of the Magistrate to commit a case to the Court of Session otherwise than under Section 209 falling in chap. XVI. In chap. XXIV dealing with the general provisions as to inquiries and trials falls Section 323. Under this section, if, in any inquiry into an offence or a trial before a Magistrate, it appears to him at any stage of the proceedings before signing judgment that the case is one which ought to be tried by the Court of Session, he shall commit it to that Court under the provisions hereinbefore contained. This section lays down without any reservations that if the Magistrate during inquiry or trial comes to the conclusion at any stage before he signs the judgment that the case 'ought to be tried by the Court of Session', he is directed by the legislative fiat to commit that case to that Court and for that purpose he has to follow the provisions hereinbefore laid down, viz. the provisions of Section 209.
9. Under Section 323 two, contingencies might arise. When the charge is laid before the Magistrate in the form of a police report or otherwise, the offence disclosed may be exclusively triable by the Court of Session. When evidence is led it might transpire that the offence is exclusively triable by the Court of Session and the Magistrate has no option in that case but to commit the case for trial to the Court of Session. There may be another eventuality, where the offence will be triable by him and not exclusively by the Court of Session. However, in the circumstances, as we have detailed above, in the present case cross complaints arise out of the same incident and it is desirable in view of the principle laid down by this Court that the two eases ought to be tried in quick succession by the same presiding Judge. If one of them is exclusively triable by the Court of Session, the Magistrate undoubtedly has no right to try that case, and Court of Session can try a case relating to any offence under the Penal Code as provided in Section 26 of the Code. The High Court and the Court of Session have been authorised to try any offence under the Indian Penal Code. In these circumstance?, the Magistrate who is unable to try the other case must direct that the cross case arising out of the same incident requires to be tried by the same Court in view of the principle laid down by the case law of this Court and the compliance with that principle is possible if the other case, which is triable by him, is also committed to the Court of Session for trial along with the other case already committed.
10. In our view, it is because of this principle and the provisions indicated above that the learned Magistrate presiding over the 12th Court, Bandra, ought to have accepted the request of the complainant and ought to have transferred case No. 980/P of 1974 also to the Court of Session, Greater Bombay. Since he has failed to exercise the option which was available to him, we direct him now to commit case No. 980/P of 1974 to the Court of Session to be tried in quick succession after the trial of sessions case No. 891 of 1974. We have already stayed hearing of sessions case No. 391 of 1974 pending in the Sessions Court, Greater Bombay. We further direct by this order that after criminal case No. 980/P of 1974 is committed to the Court of Session, Greater Bombay, the newly committed case will be tried in quick succession after case No. 391 of 1974, by the same presiding Judge and he will deliver judgments thereafter in both the cases. A copy of this judgment shall be sent to the Court of Session, Greater Bombay, for compliance with the final order.
11. Rule made absolute.