ANNAPPA Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) Heard the learned counsel for the petitioner and the learned SPP for the State. Notice issued to respondents No.2 to 8 is served, but they are unrepresented.

(2.) The record discloses that the petitioner has filed a petition before the Prl. District and Sessions Judge, Davanagere in Crl. Misc. No.617/2017 seeking transfer of Crime No.113/2016 (C.C.No.1643/2016) from the file of the Addl. Civil Judge & JMFC, Harihara to the Court of the II Addl. District & Sessions Judge, Davanagere, to try the said case simultaneously with Crime No.115/2016, which is registered later in Spl.(SC & ST) Case No.20/2016 on the file of the II Addl. District & Sessions Judge, Davanagere on the ground that both the cases are case and counter case. The said transfer petition was rejected by the Sessions Court on the ground that the learned Magistrate has passed an order under Section 323 of Cr.P.C. holding that the cases are different and date and timing of the said cases are different and the order of the Magistrate was not challenged. Therefore, the application to transfer the petition was not entertained. Accordingly, the petition was dismissed. Being aggrieved by the same, the present petition is filed.

(3.) It is the fundamental basic principle of law that if the Court finds that two cases are arising out of the same incident with reference to date, time and place and between two groups, in such an eventuality they should be treated as a case and a counter case and they should be tried by the same judge simultaneously one after another. It is worth to mention here as to how case and counter case have to be treated and tried by the Courts is very well detailed in a decision between State of Karnataka by Circle Inspector of Police Vs. Hosakeri Ningappa and another, 2012 ILR(Kar) 509 wherein this Court dealing with the case and counter case in detail has laid down certain principle as to how a case and counter case are to be treated and tried by the Courts. It is specifically provided some guidelines, the procedure to be adopted in a case and counter case is that, the investigation should be done by same Investigating Officer and the prosecution should be conducted by two different Public Prosecutors and the trial should be conducted by the same Court. After recording the evidence and after hearing the arguments, the judgment in one case should be reserved and thereafter evidence should be recorded and arguments should be heard in other case. It is needless to observe that the arguments in both the matters shall be heard by the same judge and judgment should be pronounced by the same judge simultaneously i.e., one after the other. This is the major guidelines have been issued in the above said case. Therefore, the Court has to ascertain whether the cases which are sought to be tried together are case and counter case, then only Court can pass such orders. The learned Sessions Judge has not ascertained whether the trial court has properly passed the order after considering the date, time and place of incident and whether the said cases can be treated as a case and counter case to each other, but simply proceeded by the observation made by the Magistrate. The Sessions Judge also mechanically dismissed the application that made actually this Court to bestow its attention to the two cases to find out whether they are the case and counter case, to pass appropriate orders.