Surinder Singh, J.
1. This Revision Petition is directed against the order passed by the Additional Sessions Judge, Karnal, on September 8, 1980. The facts giving rise to the same may be briefly recapitulated, though they have been lucidly detailed in the order under Revision, Ram Chand petitioner lodged a First Information Report at Police Station City Panipat, in respect of an occurrence alleged to have taken place on May 6, 1980. The First Information Report made reference to the two parts of the incident, one of which involved Joginder Singh, Satvinder Singh and Jagir Singh respondents 1, 2 and 3 while the second part related to the alleged assault, by the remaining five respondents, namely, Palkar Singh and others. After the investigation of the case, the Police challaned the first set of three respondents who were committed to the Sessions Court by the Committing Magistrate, vide order dated August 2, 1980, to stand their trial under Section 302 read with Section 34 I.P.C. for the murder of Hans Raj, the brother of the petitioner and under Sections 324 and 323 read with Section 34, I.P.C. for having caused hurt to Ram Chand petitioner.
2. It transpires that after a lapse of more than two months, i.e. on July 14, 1980, Ram Chand petitioner filed a private complaint before the Committing Magistrate, Panipat, in which it was alleged that all the eight persons mentioned in the First Information Report had committed the assault in pursuance of the common object of their unlawful assembly. After recording the preliminary evidence of the complainant, the Committing Magistrate committed all the eight accused to the Court of Session for being tried under Section 302 and other sections of the I.P.C. In this manner, both the challan case as well as the complaint case reached the Court of Session for further proceedings.
3. When the two cases came up before the Court of the Additional Sessions Judge on August 28, 1980, an application was made by the Public Prosecutor with the prayer that the two cases may be consolidated for the purpose of trial. In order to assess if it was a fit case for consolidation, the learned Additional Sessions Judge got the records of the two cases produced in his Court and after going through the same and hearing the Public Prosecutor as well as the counsel both for the complainant and the defence, passed the impugned order. In this order, it was held that the two transactions mentioned in the First Information Report were entirely independent and hence it was 'neither legal nor prudent and proper to hold a joint trial'. The application filed by the Public Prosecutor was, therefore, declined, The learned Additional Sessions Judge then considered the question of framing of the charge in the two cases and concluded on the basis of the material before him that the second set of five respondents was prima facie triable for offences under Sections 148, 325 read with Sections 149 and 323 read with Section 149, I.P.C. These offences being exclusively triable by the Court of a Judicial Magistrate, the learned Additional Sessions Judge exercising powers under Section 228 of the Criminal P. C, framed the necessary charges for the offences mentioned above against these five respondents and transferred their case for trial to the Chief Judicial Magistrate, Karnal. It is not disputed at the bar that the remaining three respondents are to be tried by the Additional Sessions Judge in a separate case.
4. The sole question which falls for consideration in this Revision Petition is, as to whether there is any illegality in the impugned order passed by the Additional Sessions Judge. The contention on behalf of the petitioner as advanced by his counsel, Mr. S. C. Sibal, is that while considering as to whether the two cases, i.e., the challan case and the complaint case should or should not be consolidated, the learned Additional Sessions Judge, was not competent to look into any other record excepting the record of the complaint case. The contention is on the face of it untenable. Before a Court can decide about the propriety or otherwise of consolidating two cases, it has necessarily to go into the record of both the cases in order to see if a joint trial would be more convenient and feasible. The First Information Report is essentially an important document, as it contains the earliest version of the incident. A perusal of the said report indicates that after the alleged assault by the first set of three respondents, the remaining five respondents reached the spot and are said to have assaulted the P. Ws. In fact, it is specifically alleged in the First Information Report that these five respondents had acted in pursuance to their common object and there is no allegation that they had a community of object with the first set of three respondents. Indeed, the complainant was wiser to take up the stand in the complaint that all the eight respondents had attacked, in fulfilment of their common object, but the mere ipse dixit of this allegation would not preclude the Court from assessing at the stage of framing of the charge as to whether the two incidents are correlated in so far as the intention or object of all the respondents is concerned. After considering the matter and hearing the learned Counsel for the parties, I find that the conclusion arrived at by the Additional Sessions Judge to the effect that the two transactions of the incident are independent, is unassailable. In so far as the question of joint trial is concerned, it is an established principle of law that a separate trial is the rule, while a joint trial is an exception,
5. In the next leg of his arguments, the learned Counsel for the petitioner submitted that while considering the case of five respondents who have been charged for lesser offences, the trial Court was not justified in considering the material on the record to come to a conclusion that these five respondents ought not to be tried for an offence under Section 302, I.P.C. The contention is again bereft of force. There is no gain saying that it would not be open to the trial Court at the beginning and the initial stage to meticulously Judge the truth, veracity and effect to the evidence which the prosecutor proposes to produce, nor should the Court attach any weight to the probable defence of the accused, but at the same time by virtue of the provisions, of Sections 227 and 228 of the Criminal P.C. the Court has the power to sift and weigh the evidence for the limited purpose of finding out, whether or not a prima facie case against the accused has been made out. In the case in hand, it is noteworthy that the learned Additional Sessions Judge, was alive to these salutary principles of law lucidly laid down by the Supreme Court in Union of India v. Prafulla Kumar 1979 Cri App Rep 72 : 1979 Cri LJ 154, which were pointedly noticed by him in the impugned order. In fact, while dealing with the contention on behalf of the petitioner that the Police had not recorded the statements of the prosecution witnesses, the learned Additional Sessions Judge, rightly observed that ha would not comment on this aspect of the matter at this stage.
6. This brings us to the only other point whether it was proper for the Additional Sessions Judge to send the case pertaining to the five respondents to the Chief Judicial Magistrate for trial when he would be seized of the case against the remaining three respondents himself in a Sessions trial. In this behalf, the learned Additional Sessions Judge has fallen in error in not following the rule of prudence that where there are two cases somewhat connected, it is proper that both the case should be tried by the same Court. Indeed, this rule would be definitely applicable to two cases, one instituted on Police Report and the other initiated on a private complaint, both cases being triable exclusively by the Court of Session, but even if one of these two cases is technically triable by the Court of the Magistrate, it would be in the interest of avoiding the risk of two Courts coming to a conflicting finding, that both the cases should be tried by the Additional Sessions Judge him-self.
7. In view of the above discussion, the impugned order is modified to the extent that the Additional Sessions Judge shall himself try the case against the five respondents, though separately from and simultaneously with the connected case, against the remaining three respondents. It would also be appropriate that the final orders in both the cases are pronounced on the same date,
8. Except for the above modification, the Revision Petition stands dismissed. The parties, through their counsel have been directed to appear before the Additional Sessions Judge, Karnal, for further proceedings on Feb. 23, 1982.