Horace Owen Compton Beasley, C.J.
1. This transfer petition was directed by me to be placed before this Full Bench not because of any difficulty which arises in the petition which is not opposed but because it is a favourable opportunity for resolving difficulties with regard to procedure which have arisen on account of conflicting opinions expressed by this High Court.
2. One of these is Krishna Pannadi v. Emperor 1929 M.W.N. 883, a decision of Jackson, J., and another is Kandregula Jaggu Naidu v. Emperor 1929 M.W.N. 881, a decision of Reilly and Krishnan Pandalai, JJ. Some difficulty has probably been created also by Krishtamma v. Emperors, a decision of Waller and Cornish, JJ. These cases lay down the procedure to be adopted at the trial of cases and counter-cases, the two former by Sessions Judges and the latter by Magistrates. In Krishna Pannadi v. Emperor 1929 M.W.N. 883 Jackson, J., stated:
There is no clear law as regards the procedure in counter-cases, a defect which the Legislature ought to remedy. It is a generally recognised rule that such cases should be tried in quick succession by the same Judge who should not pronounce judgment till the 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 facts.
3. Jackson, J., then points out that there is obvious difficulty in the adoption of this rule as it seems to infringe the fundamental principle that the Court must not import any facts into a case which are not to be found on the record. He then proceeds to state his view that the only way in which such a procedure can be justified is by setting up a fiction that the case and counter-case are really one and suggests that this fiction should be made a reality by statute. This judgment has been severely criticised in Kandregula Jaggu Naidu v. Emperor 1932 M.W.N. 692 but I am bound to say that I think that most of the criticism is due to a misunderstanding of Jackson, J.'s judgment because on p. 696 Reilly, J. says:
I understand Jackson, J.'s opinion to have been that not only should the same Assistant Sessions Judge have heard both cases to the end and have had the evidence of both of them in his mind before he pronounced judgment in either but also that he should have tried both cases with the aid of the same assessors.... That is how the learned Sessions Judge of Vizagapatam has understood Jackson, J.'s directions and it is that procedure he has followed.
4. I do not understand Jackson, J. to have meant that both cases should be tried with the aid of the same assessors. What he does say is that both cases should be tried in quick succession by the same Judge who should not pronounce judgment until the hearing of both cases is finished. If that is what Jackson, J., meant, then there is really no difference between the procedure Jackson, J. has in mind and that indicated by Reilly and Krishnan Pandaiai, JJ. It seems to me that all the three are agreed upon the desirability of the Judge withholding judgment until he has heard both the case and the counter-case, but since Jackson, J. states that this procedure may allow the facts in the one case to impress or influence the Judge in the other case, it is as well to observe that if the Judge withholds his judgment until he has heard both cases for the purpose of considering the cases as if they were one case, then that would be an irregular procedure; and the suggestion made by Jackson, J., that a fiction should be set up that the case and the counter-case are really one and should be made a reality by statute seems to me to be one which it would be very difficult to adopt. Waller and Cornish, JJ., who were dealing with the procedure in the Magistrates' Courts are of the opinion that 'no Court can grasp the real facts unless it tries both cases '. If by that it is meant that the fundamental principle that the Court must not have regard in one case to the facts in another is not to be observed then that view cannot be supported. Possibly if the Judge reserves judgment in both cases in order that he may consider both for the purpose of arriving at the truth, he is likely to reach a more satisfactory result than by trying each case without reference to any of the facts in the other. But since this procedure is irregular, it cannot receive our support. No hard and fast rule can be laid down. It is sufficient to say that there can be nothing irregular in a Judge trying each case to a conclusion before different assessors and afterwards pronouncing judgment in both so long as he tries the one quite independently of the facts in the other. Should the Judge, however, feel that he is likely to be embarrassed by the adoption of this procedure, he will no doubt get a transfer of the counter-case to the file of another Sessions Judge. What must be made clear is: (1) that the trial must be separate, i.e., before different assessors and separate judgments delivered; (2) that the conclusions in each case must be founded on, and only on, the evidence in each case, and (3) that if the Judge considers himself unable to detach himself from extraneous considerations a transfer may be necessary to deliver the Judge from this embarrassment.
5. We are much obliged to Mr. Nugent Grant and Mr. Bewes for their great assistance to us as amicus curiae.
6. I agree.
7. I agree.