1. This Rule has been issued on two grounds; first, why the case should not be transferred from the file of the Sub-Divisional Officer, Diamond Harbour, to the of some other competent Magistrate, and secondly, why the case in which the petitioner is the complainant should not be postponed pending the hearing of the case in which the petitioner is the accused.
2. With regard to the first ground, we have gone through all the papers in connexion with this litigation, which has been hanging for a long time mainly on account of the conduct of the petitioner and we do not think, that any ground has been made out for our interference on that ground. The allegations made against; the trying Magistrate have all bean denied; and there is one fact which makes it undesirable that the case should be transferred from the file of the Sub' Divisional Officer. An application was made previously to this Court for the transfer of the case in which, the petitioner the accused from the file of the Sub-Divisional Officer. The application was refused with the result that the case against the petitioner will be tried and is being tried by the Sub-Divisional Officer. It will not be desirable that the case in which the petitioner is complainant should be tried by another Magistrate.
3. With regard to the second ground there have been several decisions of this Court which cannot at first sight be easily reconciled. The petitioner and the opposite parties have been fighting over a piece of land. There was a fight between them on the 22nd November 1924. The opposite parties lodged a complaint on that day before the Kulpi Police charging the petitioner and his man with rioting and causing grievous hurt. On the 25th November 1924 the petitioner filed a complaint before the Deputy Magistrate of Diamond Harbou r charging the opposite party with the same offence. The matter was sent to the police for enquiry and it appears, that both the cases were sent up by the police.
4. It appears that both the cases were fixed for hearing on the 26th February. On that date some witness were examined in the case against the petitioner and the case in which the petitioner was the complainant was adjourned to the 3rd March. The learned trial Magistrate, in his explanation submits that the complainants in both cases wanted their cases to be taken up first. As this was physically impossible he took up the case against the petitioner first and as he had no time on that date to take the petitioner's case it was adjourned to the 3rd March. On the 3rd March the petitioner made several applications one of which, was that the trial of his case might be adjourned till the disposal of the case against him. The application was rejected by the Sub-Divisional Officer. The petitioner thereupon moved the District Magistrate of the 24 Paraganas for transfer of both the oases from the file of the Sub-Divisional Officer and in the alternative for stay of the case in which, he was the complainant pending the disposal of the case against him. The learned District Magistrate over-ruled those objections and the petitioner obtained this Rule.
5. The first case that has been placed before us dealing with this point is the case of Bachu Mullah v. Sia Ram Singh 14 Cal. 958, There are some very emphatic expressions of opinion by Patheram, C.J. and the practice of having counter cases tried together is strongly condemned. The decision was not considered as good law by a Bench consisting of three Judges in the case of Queen-Empress v. Chandra Bhuiya  20 Cal. 537 and it was distinguished or its authority attempted to be belittled by the fact that in the case of Bachu Mullah 14 Cal. 958 the learned Judges did not base their decision upon the opinion there expressed and though the Rule was issued upon that ground it was ultimately discharged. In the case of Quen Empress v. Chandra Bhuiya  20 Cal. 537 also though the learned Judges did not accept the dictum in Bachu Mullah's case 14 Cal. 958 they did not interfere with the procedure adopted by the trial Court on the ground that the accused was not prejudiced and that it was a mere irregularity which had occasioned no failure of justice. These cases may be distinguished because the question arose for consideration in them after the decision of the cases. The question arose for consideration in them after the conclusion of the cases and the final orders passed in them did not rest on the conflicting views taken. The point has arisen before us with reference to pending cases. In Garibulla Akanda v. Sadar Akanda : AIR1924Cal813 the learned Judges were of opinion that two cross-cases should not be heard at one and the same time and the evidence in one should not be taken into consideration in the other case. It does not appear from the report that the oases above cited were placed before their Lordships. In Sheikh Samir v Beni Modhab A.I.R. 1923 Cal. 644 it was held that cross cases should be tried one after the other. The peculiar feature of that case was that one of the cases had already reached the final stage, whereas very little was done in the other case. In Sheikh Bahadur v. Nobadhli A.I.R. 1924. Cal. 694 decided by the criminal Bench dealing with undefended oases it was held that counter-cases should be tried simultaneously and contemporaneously but should be dealt with wholly separately from each other, each on its own merits and upon facts and circumstances appearing therein: the judgment in two cases being pronounced, if possible after both the trials are over. There is an unreported case (Criminal Revision Case No. 662 of 1919, decided by Sunderson C.J. and Duval, J, on the 27th August 1919) in which the view expressed in Bachu Mullah's case 14 Cal. 958 was accepted. In this state of the case law, we feel, that there is no authority, which is absolutely binding upon us. The Coda is silent with regard to the procedure to be adopted in such circumstances, It should not, therefore be laid down as an absolute rule of law that a particular course must be adopted. Each case has to be decided according to its requirements. In the present case the petitioner wants that his case should be taken up after the case against him has been decided. He apprehends that as an accused in the case against him he cannot be cross-examined but, as a complainant ha will be subjected to cross-examination by his adversary. 'The law does not allow an accused person to be cross-examined and we do not Chink that it will be proper, that he should be compelled to place himself in the box for examination, though not in the capacity of an accused person. In the cases that have been decided and to which we have referred grievance was made by one of the parties a; to simultaneous or separate trial of the cases. In some cases a party wanted that his case should be tried simultaneously with the cross-case against him and he was willing to take the risk of his being cross examined in his case. The petitioner in this case does not want to run that risk and it is not fair to force a person in the position of an accused to throw himself open to cross-examination by the other side. Furthermore in the present case we find that 16 witnesses have been examined in the case against him. We think, therefore, that is will serve the ends of justice, if we direct that the case against the petitioner should be disposed of first and then the petitioner's case if he so wishes, be taken up, and we order accordingly.
6. The Rule is made absolute to this extent.
7. Let the record be sent down at once.