STATE OF KERALA Vs. ANNAMMA

JUDGEMENT

(1.) The question which arises for consideration is whether a case pending on the file of the Magistrate in which there is no allegation regarding commission of any offence exclusively triable by the Court of Session can be sent to the Court of Session for being tried there for the reason that a counter case in respect of the same occurrence in which the allegation is regarding the commission of offence exclusively triable by Court of Session is pending in the Court of Session for trial. S.193 of the Criminal Procedure Code provides that except as otherwise expressly provided by the Code or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under the Code. The above provision provides that Court of Session can take cognizance of an offence as a Court of original jurisdiction only if the case is committed to it by the Magistrate. S.209 of the Code provides that when it appears to the Magistrate that the offence is triable exclusively by the Court of Session he shall commit the case to the Court of Session. Since the above provision gives powers to the Magistrate to commit a case to the Court of Session when the offence is exclusively triable by a Court of Session the question which arises for consideration is how can a case in which there is no allegation regarding the commission of an offence exclusively triable by Court of Session be brought before the Court of Session for trial.

(2.) An application was filed in the Court of Session, Ernakulam for transferring C.C. 1390/1996 on the file of the Judicial Magistrate of the First Class, Perumbavoor to the Court of the Principal Assistant Sessions Judge, North Paravur for the reason that case has to be tried by the above Assistant Sessions Judge because Sessions Case 216/1998 was pending on the file of that Court and the above Sessions Case and the case which is sought to be transferred arose out of the same incident. The learned Sessions Judge, on observing that there was no doubt that both the cases arose out of the same transaction, found that both the cases have to be tried by the same Court and made an order transferring C.C. 1390/1996 from the Court of Judicial Magistrate of the First Class, Perumbavoor to the Court of the Principal Assistant Sessions Judge, North Paravur. The Assistant Sessions Judge, North Paravur, who got the file in C.C.1390/1996 on the strength of the order made by the Sessions Judge transferring the case under S.408 of the Criminal Procedure Code, expressed the doubt that the Sessions Judge was not having the power to try a case in which there is no allegation regarding commission of offence exclusively triable by the Court of Session and sent a report to the Sessions Judge, Ernakulam. The Successor - in - Office of the Sessions Judge, Ernakulam on pointing out that the Assistant Sessions Court does not have competence to take cognizance of the offence and try a calendar case unless it is committed to the Sessions Court, made a request to this Court to issue appropriate directions in the matter and thus, the question came up for consideration of this Court.

(3.) The procedure to be followed when there are cross cases is to direct that both the cases have to be tried by the same Judge. The evidence in one case has to be taken and after completing the evidence the arguments in that case have to be heard and the judgment has to be reserved. Thereafter, the Judge will have to proceed to take evidence in the cross case and after recording of the evidence he must hear the arguments and reserve the judgment in that case also. Both the cases have to be disposed of by two separate judgments. In taking decision in the cases the Judge will have to take decision in each case only on the basis of the evidence taken in that particular case. The evidence taken in the cross case cannot be taken into consideration for taking a decision in the other case and the Judge should not be influenced by whatever is argued in the cross case. Each case has to be decided on the basis of the evidence which has been adduced in that particular case without being influenced in any manner by the evidence or arguments urged in the cross case. The judgments in both the cases will have to be pronounced one after the other.