Jaganmohan Reddy, J.
1. This matter has been referred to a bench by one of us having regard to two judgments which require further consideration viz., one in Subrayulu Naidu v. Kailasam Pillai 1935 Mad. W.N. 645 and the other in Gr. R.C. No. 207 of 1956 (Andhra). The petition is to stay the trial of a 'Sessions case No. 35 of 1960 committed in P.R.C. No. 2 of 1960 pending the committal of a private complaint against same number of accused plus one named Mahananda Reddy and for a joint trial of both the cases. It appears that 33 persons were going to the railway station Vanganur to attend court in Proddatur, Cuddapah District, At about 11-30 p.m.. when they reached Pennar river, the 21 accused along with one Mahananda Reddy were hiding and they dispersed in three directions and began to commit riot and fired at the party. Some of them were injured and one of them killed. The police, after investigation filed a charge-sheet only against 21 accused on 14-3-1960 after which some of the accused surrendered and a final charge-sheet was filed on 29-4-1960.
The case was ready for committal on 29-6-1960 I and was committed on 30-6-1960. About four days prior to the committal, the petitioner who is also the first informant and was one of the 33 persons who were said to be coming to the railway stationon the night of the incident, filed a private complaint against all the 22 accused on 25-6-1960 andthereafter filed this petition on 2-9-1960 to staythe trial of the Sessions Case.
2. In the decision of the Criminal Rev. Case No. 207 of 1956 Kumarayya held that the procedure under Sections 207-A and 208 Cr. P.C. for cases initiated by the police and by private complaints respectively being different, the clubbing of two cases is not possible in law but it was possible to stay one of the proceedings till the committal proceedings in another case come to an end.
In this view, he stayed P.R.C. No. 17/1956 filed by the police in that case till the disposal of P.R.C. No. 20/1955 which was in its last stage, and that in case of committal of both cases, there should be one trial. On the other hand, in another decision which was by one of us, in Cr. M,P., No. 229 of 1958 (A.P.), in similar circumstances, the petition to stay the trial of Sessions Case pending the committal of the P.R.C. case on a private complaint was rejected on the ground that the private complaint was still in its infancy and there is no equity to stay the trial of a case already committed.
3. The learned advocate for the petitioner has cited the decision in 1935 Mad. W.N. 645, and in Mukania v. Achalia, to support his contention, that it is possible to hold a joint trial of two cases filed by the police as well as by private complainant. These cases, in our view do not support that contention. All that they decide under the old Procedure Code is that when the enquiry is going on in one of the cases before a Magistrate he could conduct the enquiry in the other case also and wait to pronounce the order till the other is decided,
In fact, in the former case Burn J. observed that 'there is no justification whatever for the recording of the evidence twice over'; because the Magistrate cannot commit anybody twice since there is only one criminal transaction in which the accused are said to have been engaged. These observations strengthen the view that no evidence need be taken in a P.R.C. proceedings arising out of a private complaint against the accused who were already committed. In the Rajasthan case, Wanchoo C.J. only confirmed a joint trial already conducted as there was no illegality on the facts of the case.
4. After the amendment of the Code by the addition of 207-A, Ramaswamy, J. in Re: Mahalinga Thevar : AIR1959Mad521 referred to the Circular of Raja-gopalan and Somasundaram JJ in which it was stated that under the amended Code of Criminal Procedure, the procedure to be adopted in regard to R.C. cases to be committed on Police complaint and R. C. cases to be committed on private complaints are widely different, that it is not possible to say which is more favourable to the accused, and that it would be certainly open, to the accused who has been committed and later on convicted under the one procedure to argue that the other procedure should have been adppted And i if had been adopted he would., not have been pre-judiced and would, have secured a discharge and later on an acquittal;
In these circumstances, the - learned Judges came to the conclusion that the two cases should be shown as two P.R. cases and that they should be tried separately following the procedure laid down in cases of case and counter, thereby avoiding several-pitfalls like misjoinder of charges etc. Ramaswamy J, approved this and said that the procedure to be adopted in the Madras State for trial o case and counter, is to be adopted.
This decision also inclines to the view that there is no clubbing of or mixing of cases under different proceedings. We have not been referred to any provision of law whereby the Sessions Judge or the Magistrate is compelled to club the cases where the trials emanating from two differ cut procedures have to be clubbed together and tried 'as one, even though both the cases may arise out of the same criminal transaction and one or some of the accused have been left out.
5. In our view, there is no justification for a joint trial because it is neither possible nor desirable; nor is there any validity to stay the trial of the Sessions case which is already ripe and could be proceeded with. The P.R.C. case is still at its commencement and it would be acting contrary to. the principles of the new procedure that has been laid for a P.R.C. on complaint by the police to stay the trial of the Sessions case pending the committal of the case on private complaint because that would involve an inordinate delay due to the necessity to examine a number of witnesses which is what is sought to be avoided by procedure described by Section 207-A. It is also not possible to envisage at this stage what is going' to be the fate of the private complaint, that is, whether it would end in a discharge or a committal. As such, it would not be proper to stay the Sessions trial pending the conclusion of the P.R.C.
6. In this view, the petition is dismissed and the stay vacated. The Sessions Judge will proceed with the trial expeditiously.