- (1.) HEARD both the sides.
(2.) THIS transfer petition (criminal) has been filed for quashing the order dated 26.6.2003 passed by learned Sessions Judge, Deoghar in Miscellaneous Petition No. 8 of 2003 whereby and whereunder the learned Sessions Judge has refused to transfer the case arising out of Jasidih P. S. Case No. 89 of 1995 pending in the Court of Shri Arun Kumar, Judicial Magistrate, Deoghar to the Court of the Additional Sessions Judge, FTC No. II where the Sessions Trial No. 219 of 1996 is pending arising out of the Jasidih P.S. Case No. 88 of 1995. The FIR of both the cases i.e. Jasidih P.S. Case No. 88 of 1995 and Jasidih P.S. Case No. 89 of 1995 are annexed with the petition and on perusal of both it appears that both the cases are cross cases of each other i.e. time of occurrence, place of occurrence and date of occurrence is the same. The case arising out of Jasidih P.S. Case No. 88 of 1995 was exclusively triable by the Court of Session consequently it was committed to the Court of Additional Sessions Judge, FTC No. II and is being tried in ST No. 219 of 1996 whereas the case arising out of Jasidih P.S. Case No. 89 of 1995 is triable by the Court of Magistrate and it is pending in the Court of Magistrate. The prayer made by the petitioner before the Sessions Judge was that for the proper appreciation of the evidence both the cases being cross cases be transferred to the Court of Additional Sessions Judge, FTC No. II so that there may not be conflicting judgments. The learned District Judge, it appears, relying on certain decisions of the Patna High Court as well as of the Apex Court as reported in 1970 PLJR 236 and 1971 PLJR 521 and AIR 2001 SC 826 came to a finding that as only one case has to be committed to the Court of Sessions so Magistrate triable cases can not be committed to the Court of Session refused the prayer. The question is whether in the circumstances the impugned order can be set aside. Admittedly the cases are cross cases. There is no law that the cross cases must be tried together but it is rule of prudence that in order to avoid conflicting judgments and for proper appreciation of the evidences the trial of both the cases are made by the same Court. If viewed from that angle then the prudence requires the transfer of the cases in the same Court. A difficulty has arisen because one case was triable by the Court of Sessions consequently that has been committed to Session Court whereas other case is being tried by the Magistrate and was pending in the Court of Magistrate and this appears to be an impediment for transferring the cases to the Sessions Court. In a case which is exclusively triable by the Court of Sessions a proceeding for commitment is required where as if the case is not exclusively triable by the Court of Sessions the proceeding for commitment was not required. Then a question will arise how this hurdle can be crossed. In this regard the learned counsel for the petitioner has argued that he had referred to a judgment reported in 2003 SAR (Cri) 409 before the learned Sessions Judge and he had averred this fact in paragraph 8 of the petition also but the Sessions Judge did not take any cognizance of this decision of the Apex Court and refused to transfer the case. Similar problem as in this case has arisen was posed before the Apex Court in that case and the Apex Court held ''The cross cases should be tried together by the same Court irrespective of the nature of the offence involved. The rational behind this is to avoid the conflicting judgments over the same incident because if cross cases are allowed to be tried by two Courts separately there is likelihood of conflicting judgments. Both the complaints cannot be said to be right - Either of them must be false. The Apex Court in that case found that in one case the cognizance has been taken only of an offence under Section 147, 148, 149 and 324 of the IPC, and that it was pending before the Judicial Magistrate First Class and the another case before the Court of Session as the offences made under Section of the Indian Penal Code. In the aforesaid situation the Apex Court held that the cross cases should be tried together by the same Court irrespective of the nature of the offence involved.
(3.) OBVIOUS it is that as the Sessions Case No. 219 of 1996 is pending before the Additional Sessions Judge, FTC No. II is exclusively triable by the Court of Sessions, it can not be transferred to the Court of Magistrate then as of necessity the Magistrate triable case which is pending in the Court of Judicial Magistrate should be transferred to the Court of Additional Sessions Judge, FTC No. II.;