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Judgment
Pratap Singh, J.—Petition praying for transfer of C.C. No. 19/91 on the file of Chief Judicial Magistrate, Nagerkoil to the Court of Assistant
Sessions Judge, Padmanabhapuram, for joint trial along with S.C. No. 74/90.
Short facts are: The petitioner has filed a private complaint before the Chief Judicial Magistrate, Nagercoil in C.C. No. 19/91 against
Dakshinamurthi Sub-Inspector of Police, Cecil, Police Constable and Pithalus Police Constable, arraying them as accused 1 to 3 for the offences
under Ss.452, 341, 324 and 325 I.P.C. against A.1, under Ss.452, 341, and 324 I.P.C. against A.2 and under Ss.452, 341, 324 and 325 I.P.C.
against A3 with regard to the occurrence on 30.6.1989. While so, the Inspector of Police, Thuckalay has filed a charge sheet against the petitioner
and four others arraying them as accused 1 to 5. Out of them, petitioner is A.4, for offences under Ss.147 , 148, 342, 332, 224 and 307 read with
109 I.P.C. with regard to the same incident on 30.6.1989. The case was committed by the Judicial Magistrate, Padmanabhapuram and is now
pending before the Assistant Sessions Judge, Padmanabhapuram in S.C. No. 74/90.
Mr. Antony Xavier, learned counsel for the petitioner would submit that, inasmuch as both the cases arise out of the same occurrence and they
are the case and case-in-counter, it is better that the same judge shall try both the cases. He would further submit that the joint trial maybe ordered.
Per contra, Mr. Raja, learned Government Advocate would submit that, both the cases arise out of the same occurrence and they are the case and
case-in-counter and he has got no objection for transfer of the case and the trial by the same Judge, as has been prayed for. But, he would submit
that the case and case-in-counter cannot be tried jointly and they may be tried separately by the same Judge. I agree with the submission of Mr.
Raja, that both the cases are to be tried by the same Judge, but, separately and judgment delivered on the same day. If both the cases are tried
jointly, necessarily and invariably, difficulties and inconsistence would arise, and that is not the course to be followed in such cases. Mr. Antony
Xavier relied upon Bandaru Shreedhar Reddy v. State of A.P. (1989 Cri.L.J. 777) where the Andhra Pradesh High Court has held that the
application for transfer for being tried by the Sessions Judge was not barred by the Proviso to S.407 Cr.P.C. The above ruling does not say that in
all such cases, there should be a joint trial. So, this ruling would not help Mr. Antony Xavier.
In the result, the petition is ordered as follows: The case in C.C. No. 19/91 on the file of Chief Judicial Magistrate, Nagercoil is hereby
transferred to the Court of Assistant Sessions Judge, Padmanabhapuram for trial along with S.C. No. 74/90 on its file. The learned Sessions Judge
should try the cases separately but, should pronounce the judgment on the same day.