Holding

A Sessions Judge is not obligated to transfer a case lacking an offence exclusively triable by the Sessions Court and may retain it for trial; likewise, a magistrate may commit such a cross‑case to the Sessions Court under Section 323, allowing both cases to be tried by the Sessions Court.

Summary

The case involved two criminal matters arising from the same encounter, one containing offences exclusively triable by a Sessions Court and the other not. Both were committed to the Sessions Court, but the Sessions Judge transferred the second case to the Chief Judicial Magistrate under Section 228(1)(a). The Supreme Court held that a Sessions Judge is not compelled to transfer a case lacking an offence exclusively triable by it and may retain it for trial, and that a magistrate may commit such a cross‑case to the Sessions Court under Section 323. It affirmed the Sessions Court’s power to try any offence under Section 26 of the CrPC. Consequently, the order transferring the second case was set aside and the Sessions Court was directed to try both cases, following the procedure laid down in Nathi Lal. The appeal challenging the High Court’s dismissal was allowed, while the parallel appeal was left undisturbed.

Issues considered

Whether a Sessions Judge must transfer a case to the Chief Judicial Magistrate under Section 228(1)(a) when the case does not involve an offence exclusively triable by the Sessions Court, especially where a case and counter case have been committed to the Sessions Court.
Whether a magistrate can commit a cross‑case, which lacks an offence exclusively triable by the Sessions Court, to the Sessions Court under Section 323 of the CrPC.
Whether the Sessions Court has jurisdiction to try offences not exclusively triable by it under Section 26 of the CrPC.
Whether the practice of trying case and counter case together by the same court is mandatory or merely advisable.

Legislation cited

Code of Criminal Procedure, 1973s. 209, s. 227, s. 228(1), s. 228(1)(a), s. 228(1)(b), s. 26, s. 323, s. 324

Subjects

Criminal Procedure CodeSection 26Section 228Section 323case and counter casecross casesjurisdictionSessions CourtChief Judicial Magistratecommitmenttrial of offencesparallel proceedings

Judgment

SUDHlR AND ORS. A
v.
STATE OF M.P.

FEBRUARY 2, 2001

(K.T. THOMAS AND R.P. SETHI, JJ.] B

Code of Criminal Procedure, 1908 :

Section 26-Sessions Judge - Cases exclusively triable by-Power of
-Held: Sessions Judge has the power to try any offence under the /PC-It C
is not necessary that the offence should be one exc/J1sively triable by a Court
of Sessions.

Section 228(1)-Scope and ambit of - Cross cases-Two cases arose
out of the same incident-Both were commilted to the Sessions Court-One
of the cases was transferred to Chief Judicial Magistrate as no offence D
exclusively triable by Court of Sessions was found-Correctness of-Held:
Where a case and counter case have been committed to the Sessions Court,
one involving an offence exclusively triable by the Sessions Court and the
other not involving such an offence, both the cases should be tried by the
Sessions judge.
E
Sections 209 and 323-Scope and ambit of-Cross cases-Held: Section
323 does not make an inroad into section 209 as it covers those cases to
which Sections 209 does not apply-Commitment can be under both the
Section-But once committed procedure under Ch. XVIII of the Code must be
followed-Hence, Magistrate can commit the cross case, not involving an
offence exclusively triable by the Court of Sessions, also to the Sessions
Court.

A case and counter case arising out of the same incident were committed
to the Court of Sessions as both cases involved offences triable exclusively by
Sessions Court. In the first case a char~e for offences including those triable
exclusively by Sessions Court was framed. But in the second case no offence
· y- exclusively triable by a Court of Sessions was involved and, therefore, the
Sessions Judge framed a charge and transferred the case to the Chief Judicial
Magistrate for trial.

The appellant-accused, in the first case, and the State, in the second
813
814 SUPREME COURT REPORTS [2001] I S.C.R.

A case, filed revisions petition.before the High Court challenging the order of
the Sessions Judge, which were dismissed. Hence this appeal.

Disposing of the appeal, the Court

HELD: 1.1. It is a salutary practice, when two criminal cases relate to
B the same incident, they are tried and disposed of by the same court by
pronouncing judgments on the same day. [817-C-DI

1.2. Under Section 26 of the Code of Criminal Procedure, 1973 a
Sessions Judge has the power to try any offence under the Indian Penal
Code. It is not necessary for the Sessions Court that the offence should be
C one exclusively triable by a Court ofSessions. [819-FI

1.3. The emplo)'ment of the word "may" at one place and the word
"shall'' at another place in Section 228(1) of the Code unmistakably indicates
that when the offence is not triable exclusively by the Sessions Court it is not
mandatory that he should order transfer of the case to the Chief Judicial
D Magistrate after framing a charge. In situations where it is advisable for him
to try such offence in his court, there is no legal obligation to transfer the
case to the Chief Judicial Magistrate. One of the instances for not making
the transfer is when a case and counter case have been committed to the
Sessions Court and one of those cases involves an offence exclusively triable
E by the Sessions Court and the other does not involve any such offence.
1820-C-DI

Nathi Lal v. State of U. P., [ 19901 Supp. SCC 145, relied on.

In Re: Goriparthi Krishtamma, [19291 Mad Weekly Notes 881 and
Krishna Pannadi '"Emperor, AIR j19301Mad190, approved.
F
2. Section 323 of the Code does not make an inroad into Section 209
because the former is intended to cover cases to which Section 209 does not
apply. Hence, the Magistrate can exercise the special power conferred on
him by virtue of Section 323 of the Code when he commits the cross case
G also to the Court of Sessions. Commitment under Section 209 and 323 might
be through two different channels, but once they are committed their
subsequent flow could only be through the stream channelised by the -~ _

provisions contained in Chapter XVIII of the Code. j819-B-DI

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
H No.135of2001.
SUDHIR v. STATE OF M.P. [THOMAS, .I.] 815

Froin the Judgment and Order dated 30.6.2000 of the Madhya Pradesh A
High Court in Crl. R. No. 402 of2000.

With

Criminal Appeal No. 136 of200l.
B
K.N. Shukla, S.K. Gambhir, Shiv Sagar Tiwari, Prashant Kumar, Uma
Nath Singh, B.N. Shanna and T.N. Singh for the appearing parties.

The Judgment of the Court was delivered by

THOMAS, J. Leave granted.
c
A grey area is sought to be replenished with a judicial pronouncement.
A case and counter case, both were committed to the Court of Sessions as
both cases involve offences triable exclusively by Sessions Court. But after
hearing the preliminary arguments the Sessions Judge felt that in one case
no offence triable exclusively by a Court of Sessions is involved, whereas in D
the other case a charge for offences including one triable exclusively by the
Sessions Court could be framed. Is it necessary, in such a situation, that the
Sessions Court should transfer the former case to the Chief Judicial Magistrate
for trial as envisaged in Section 228( 1) of the Code of Criminal Procedure (for
short 'the Code'). This is the core issue which has come up to the fore in
these appeals. E
For understanding the question better it is necessary to have a short
resume of the facts.

An encounter took place on the night of 18.2.1996, at a particular place
near Bhitar Bazar, Sagar, Madhya Pradesh, in which fireanns and other weapons F
were used and persons were injured. The details of the incident are not
relevant and hence skipped. Two rival versions reached the police station
regarding the above incident and two First Information Reports were registered
upon those rival versions by the officer-in-charge of the police station. FIR
No. 92 of 1996 was registered against 24 persons arrayed in it as accused (for G
convenience this can be referred to as 'the first case') and FIR No. 93 of 1996
was registered against six persons (this can be referred to as 'the second
case' for convenience). Both cases were investigated together by the police
and ultimately challans were laid in both cases alleging offences under Section
307 read with Section 149 besides some other offences of the Indian Penal
Code in both the cases. The Magistrate before whom the challans were filed H
816 SUPREME COURT REPORTS [2001] I S.C.R.

A completed the inquiry proceedings and committed both cases· to the Sessions
Court for trial. Thus far the two cases flocked together side by side.

In the Sessions Com1 the first case was taken up under Section 227 of
the Code and the court framed charge against the accused for offences under
Section 307 read with Sections 149, 147 and 427 !PC. When the preliminary
B arguments in the second case were heard under Section 227 of the Code the
Sessions Judge found that no offence triable exclusively by a Court of
Sessions need be included in the charge and hence he framed a charge as
envisaged in Section 228(1 )(a) of the Code for the offence under Section 324
read with Section 149 and certain other counts of the Indian Penal Code.
C Thereafter he transferred the second case for trial to the Chief Judicial
Magistrate as provided in Section 228( I) of the Code.

The accused in the first case moved the High Court in rev1s1on
contending that no offence under Section 307 IPC is made out against them
and further contended that the court should have included the offence under
D Section 307 IPC also in the charge framed in the second case. A Single Judge
of the High Court dismissed the revision petition by order dated 30.6.2000,
in which the learned Judge observed, inter alia, thus:

"The charge in each criminal case is framed on the basis of materials
available in the records of that particular case. Merely because the
E charge for offence under section 307 IPC has not been framed in the
counter case, the petitioners do not become entitled to be discharged
for the offence under section 307 !PC, if they are otherwise liable to
be charged for the offence under that section in view of the materials
placed before the learned Judge."
F In the meanwhile, the State of Madhya Pradesh moved the High Court
in revision challenging the order by which the Sessions Court declined to
frame charge under Section 307 IPC as against the accused in the second
case. The said revision petition was separately dealt with by the High Court
and the same learned Single Judge dismissed the said revision on the same
G day by a separate order. He made the following reasoning:
'The facts in the counter case warranted the framing of charge under ""'( •
section 307 !PC against the complainant and his companions and
simply becau~e a charge under section 307 !PC has been framed
against the complainant and his companions, they cannot claim, on
H ground of parity, that such charge should also be framed against the
SUDHIR v. STATE OF M.P. [THOMAS, .1.j 817
respondents, especially when the riiaterials placed in the present case A
do not warrant framing of charge under section 307 !PC against the
respondents. It is the settled law that charge is to be framed on the
basis of material available in that particular case and the Judge or
Magistrate should not be influenced by any other consideration.
Under the circumstances, the impugned order needs no interference
by this Cou1i on the ground of parity as contended by the learned B
counsel for the petitioner and the complainant.''

The above two orders passed by the High Court are being challenged
now in separate appeals by special leave. and both these appeals were heard
together and they can be disposed of together by a common judgment now. C

It is a salutary practice, 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. Such two different versions of the same incident
resulting in two criminal cases are compendiously called "case and counter
case" by some High Courts and "cross cases" by some other High Courts. D
Way back in nineteen hundred and twenties a Division Bench of the Madras
High Court (Waller and Cornish, JJ) made a suggestion (ln Re Goriparthi
~ Krishtamma - 1929 Madras Weekly Notes 881) that "a case and counter case
arising out of the same affair shou Id always, if practicable, be tried by the
same court; and each party would represent themselves as having been the
innocent victims of the aggression of the other." E

Close to its heels Jackson, J, made an exhortation to the then legislature
to provide a mechanism as a statutory provision for trial of both cases by the
+ same court (vide Krishna Pa1111adi v. Emperor, AIR (1930) Madras 190). The
learned judge said thus: F
"There is no clear law as regards the procedure in counter cases, a
defect which the legislature ought to remedy. It is a generally
recognised rule that such cases should be tried in quick succession
by the same Judge, who should not pronounce judgment till the
hearing of both cases is finished." G
We are unable to understand why the legislature is still parrying to
incorporate such a salubrious practice as a statutory requirement in the Code.
The practical reasons for adopting a procedure that such cross cases shall
be tried by the same court, can be summarised thus: (I) It staves off the
danger of an accused being convicted before his whole case is before the H
818 SUPREME COURT REPORTS [200 I j I S.C.R.

A court. (2) It deters conflicting judgments· being delivered upon similar facts;
and (3) In reality the case and the counter case are, to all intents and
purposes, different or conflicting versions of one incident.

In fact, many High Courts have reiterated the need to follow the said
practice as a necessary legal requirement for preventing conflicting decisions
B regarding one incident. This court has given its approval to the said practice
in Nathi Lal & Ors. v. State of UP. & anr., (1990] Suppl. SCC 145. The
procedure to be followed in such a situation has been succinctly delineated
in the said decision and it can be extracted here:

"We think that the fair procedure to adopt in a matter like the present
c where there are cross cases, is to direct that the same learned Judge
must try both cross cases one after the other. After the recording of
evidence in one case is completed, he must hear the arguments but
he must reserve the judgment. Thereafter he must proceed to hear the
cross case and after recording all the evidence he must hear the
D arguments but reserve the judgment in that case. The same learned
Judge must thereafter dispose of the matters by two separate
judgments. In deciding each of the cases, he can rely only on the
evidence recorded in that particular case. The evidence recorded in
the cross case cannot be looked into. Nor can the judge be influenced
by whatever is argued in the cross case. Each case must be decided
E on the basis of the evidence which has been placed on record in that
particular case without being influenced in any manner by the evidence
or arguments urged in the cross case. But both the judgments must
be pronounced by the same learned Judge one after the other."

How to implement the said scheme in a situation where one of the two
F cases (relating to the same incident) is charge-sheeted or complained of,
involves offences or offence exclusively triable by a Court of Sessions, but
none of the offences involved in the other case is exclusively triable by the
Sessions Court. The magistrate before whom the former case reaches has no
escape from committing the case to the Sessions Court as provided in Section
G 209 of the Code. Once the said case is committed to the Sessions Court,
thereafter it is governed by the provisions subsumed in Chapter XVIII of the °"'( -
Code. Though, the next case cannot be committed in accordance with Section
209 of the Code, the magistrate has, nevertheless, power to commit the case
to the Court of Sessions, albeit none of the offences involved therein is
exclusively triable by the Sessions Court. Section 323 is incorporated in the
H Code to meet similar cases also. That section reads thus:
SUDHIR v. STATE OF M.P. [THOMAS. J.] 819
"If, in any inq.uiry into an offence or a trial before a Magistrate, it A
appears to him at any stage of the proceedings before signing judgment
that the case is one which ought to be tried by the Court of Session,
he shall commit it to that Court under the provisions hereinbefore
contained and thereupon the .provisions of chapter XVIll shall apply
to the commitment so made."
B
The above section does not make an inroad into Section 209 because
the former is intended to cover cases to which Section 209 does not apply.
When a magistrate has committed a case on account of his legislative
compulsion by Section 209, its cross case, having no offence exclusively
triable by the Sessions Court, must appear to the magistrate as one which C
ought to be tried by the same Court of Sessions. We have already adverted
to the sturdy reasons why it should be so. Hence the magistrate can exercise
the special power conferred on him by virtue of Section 323 of the Code when
he commits the cross case also to the Court of Sessions. Commitment under
Section 209 and 323 might be through two different channels, but once they
are committed their subsequent flow could only be through the stream D
channelised by the provisions contained in Chapter XVIII.

Now we h~.ve to deal with the powers of the Sessions Court in the light
of Section 228 of the Code which says that when the Sessions Court, after
hearing under Section 227, is of opinion that none of the offences presumed
to have been committed by an accused is triable by a Court of Sessions he E
is to transfer the case for trial to the Chief Judicial Magistrate.

Ia this context, we may point out that a Sessions Judge has the power
to try any offence under the Indian Penal Code. It is not necessary for the
Sessions Court that the offence should be one exclusively triable by a Court
of Sessions. This power of the Sessions Court can be discerned from a F
reading of Section 26 of the Code. When it is realised that the Sessions Judge
has the power to try any offence under the Indian Penal code and when a
case involving offence not exclusively triable by such court is committed to
the Court of Sessions, the Sessions Judge has to exercise a discretion regarding
the case which he has to continue for trial in his court and the case which G
~y he has to transfer to the Chief Judicial Magistrate. For this purpose we have
to read and understand the scope of Section 228( I) in the light of the above
legal position. The sub- section is extracted below:

If, after such consideration and hearing as aforesaid, the Judge is of
op in ion that there is ground for presuming that the accused has H
820 SUPREME COURT REPORTS [200 I] I S.C.R.

A committed an· offence which :

(a) is not exclusively triable by the Court of session, he may, frame
a charge against the accused and, by order, transfer the case for
trial to the Chief Judicial Magistrate, and thereupon the Chief
Judicial Magistrate shall try the offence in accordance with the
B procedure for the trial of warrant- cases instituted on a police
report;
(b) is exclusively triable by the C,ourt, he shall frame in writing a
charge against the accused."

The employment of the word "may" at one place and the word "shall"
C at another place in the same sub-section unmistakably indicates that when the
offence is not triable exclusively by the Sessions Court it is not mandatory
that he should order transfer of the case to the Chief Judicial Magistrate after
framing a charge. In situations where it is advisable for him to try such
offence in his court there is no legal obligation to transfer the case to the
D Chief Judicial Magistrate. One of the instances for not making the transfer is
when a case and counter case have been committed to the-Sessions Court
and one of those cases involves an offence exclusively triable by the Sessions
Court and the other does not involve any such offence.

In the present case, the Sessions Judge ought not have transferred the
E second case to the Chief Judicial Magistrate as he did, but he himself should
have tried it in the manner indicated in Nathi Lal (supra). To facilitate such
a procedure to be adopted we have to set aside the order passed by the
·Sessions Judge in the second case. We do so.

Resultantly, we allow the appeal arising out ofS.L.P. (Crl) No. 4007 of
F 2000, and set aside the order of the High Court as well as the order passed
by the Sessions Court by which the case was transferred to the Chief Judicial
Magistrate. We direct the Sessions Court concerned to try and dispose of the
first case and the second case in the manner set out in Nathi Lat's case
(supra). In view of the above direction, the impugned order in the appeal
G arising out ofS.L.P. (Crl.) No. 3840 of2000, will remain undisturbed.

v.v.s. Appeals disposed of.