IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.50524 of 2007 VIKASH MANDAL, Son of Late Jaldhar Mandal, resident of Village- Khojana, Police Station-Belhar, District-Banka. ----------------------- Petitioner Versus 1. THE STATE OF BIHAR 2. Vinay Kumar Ray, Son of Late Ram Pravesh Ray 3. Vimal Kumar Ray, Son of Late Ram Pravesh Ray 4. Ram Lakhan Yadav, Son of Late Tarni Yadav 5. Ashutosh Ravi @ Alok Kumar Yadav, Son of Late Ravindra Yadav 6. Phuleshwar Yadav, Son of Chulhai Yadav 7. Kaleshwar Yadav, Son of Paro Yadav 8. Baleshwar Yadav, Son of Paro Yadav 9. Ramdeo Yadav, Son of Paro Yadav 10. Ashok Yadav, Son of Phodi Yadav All are residents of Village- Chunkadiya, Police Station- Belhar,District-Banka ------------- Opp.Parties. ----------- For the petitioner : Mr. Kalyan Shankar, Advocate For the State : Mr.Jharkhadi Upadhaya, A.P.P. For Opp.Party nos.2 to 10: Mr. Ajay Mukherji, Advocate -------------- O R D E R The petitioner who happens to be the informant of Belhar P.S. Case no.109 of 2003 has filed this application for quashing of the order dated 13.9.2001 passed therein by the learned Chief Judicial Magistrate, Banka, whereby he has rejected the petition dated 3.9.2007 filed by the petitioner with a prayer for the transfer of this case to the court of the Presiding Judge, Fast Track Court, Banka, where Sessions Trial no.419 of 2007 arising out of the counter case thereof , being Belhar P.S. Case no.108 of 2003, wherein he figured as an accused, was pending. Assailing the impugned order, it was sought to be submitted on behalf of the petitioner that both the cases having arisen from the same occurrence, the date, time ,manner and place of occurrence whereof were - 2 - the same with the prosecution party of one case being the accused of the other and vice versa , precedent as established by the decisions of the Apex Court and the provisions of Section 323 Cr.P.C. , it was incumbent upon the learned Chief Judicial Magistrate to have allowed his prayer, notwithstanding the fact that the offences alleged in Belhar P.S. Case no.108 of 2003 were triable by the court of Sessions whereas those in Belhar P.S. Case no.109 of 2003 were triable by the Magistrate. On the other hand the learned counsel for the contesting Opposite party sought to justify the impugned order on the ground that the prayer of the petitioner was not only unreasonable but a modus operandi to prolong the Sessions trial wherein he figured as an accused. In this connection, it was sought to be submitted that whereas the offences alleged in Belhar P.S. Case no.108 of 2003 were triable by a court of Sessions, those alleged in Belhar P.S. Case no.109 of 2003 called for a trial by the Magisterial court and the two could not be amalgamated together moreso when sufficient progress had been made in the Sessions Trial arising out of Belhar P.S. Case no.108 of 2003 inasmuch as witnesses were being examined after framing of charges. The position in law remains well settled. It is a salutary practice that when two criminal cases relate to the same incident, they are tried and disposed of by the same court by pronouncing judgments on the same day. The Apex Court has given its seal of approval to the said practice in Nathi Lal Vrs. State of Bihar reported in 1990 Supp. SCC 145 and has also delineated therein the procedure to be followed in such a situation . This decision was followed by the decision of Sudhir Vrs. State of - 3 - Madhya Pradesh reported in (2001) 2SCC 688 wherein the Apex Court explained the practical reasons for adopting such a procedure and also answered in paragraphs 12 and 13 thereof the difficulty that may arise in such a situation where one case is triable by the court of Sessions and the other by a Magisterial Court. Explaining the necessity and reasons for adopting such a procedure of cross cases being tried by the same court, it summarized the same thus, “(1) It staves off the danger of an accused being convicted before the whole case is before the court, (2) it deters conflicting judgments being delivered upon similar facts; and (3) In reality the case and counter case are, to all intents and purposes, different or conflicting versions of one incident.” It is unfortunate that the learned Chief Judicial Magistrate was remiss of the settled law and opined the petition filed by the petitioner to be a vexatious one. Be that as it may, in view of the well settled principles of law and the discussions made above, the impugned order is set aside and the application is allowed. The learned court in seisin of Belhar P.S. Case no.109 of 2003 is directed to send the case records to the learned Sessions Judge, Bhagalpur, for passing necessary orders in the light of the settled position of law. ( Abhijit Sinha, J ) Patna High Court,Patna Dated : the 27th March,2009 Nawal Kishore Singh/ A.F.R.