From the above Judgments, the law now remains well settled that it

From the above Judgments, the law now remains well settled that it

is not an illegality to file final report in both the case  and the counter
case. What is to be tested is only the question of prejudice for the accused.

        19. In view of the above well settled position of law in the instant
case at no stretch of imagination it could be held that filing of final
report in both the instant cases would amount to illegality. We hold that the
investigating officer, who was unable to find as to who was the aggressor,
was right in placing all the materials before the Trial Court by way of two
final reports and therefore, it was for the trial court to appreciate the
evidence let in both the cases and to punish the guilty.

        20. Now, we have to examine the proper procedure to be followed while
conducting the trial of both the cases. In this regard, we may also refer to
a judgement of the Hon'ble Supreme Court in Nathi Lal v. State of UP, 1990
(Supp) SCC 145 wherein the Hon'ble Supreme Court has in para 2 has held as 
follows:-       
        2.We think that the fair procedure to adopt in a matter like the
present where there are cross cases, is to direct that the same learned Judge
must try both the cross case 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 arguments but reserve the
judgment is that case. The same learned Judge must thereafter dispose of the
matters by two separate judgments. In deciding each of the case, 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 on the basis
of the evidence which has been placed on record in the 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.?

        21. One of us (JUSTICE S.NAGAMUTHU), while sitting single in Ganesan   
and others v. State  and another, 2011 (5) CTC 747 had occasion to  consider
the similar issue wherein the legal issues have been summed up as follows:-

        ?58. To sum up the legal issues involved in the case:-
        (i) No Court of Sessions shall take cognizance of any offence unless
the case has been committed to it by the jurisdictional Magistrate.
        (ii) The Court of Sessions has no power to direct a Magistrate to
commit any case to his file nor can a Court of Sessions withdraw a case from
a Magistrate to his file.
        (iii) If any of the offences in a given case is exclusively triable by
a Court of Sessions then, the legal duty of the Magistrate is to commit the
case to the Court of Sessions for trial as provided inSection 209 of Cr.P.C.
        (iv) In cross cases, where one of the cases involves offences
exclusively triable by a Court of Sessions and in the other case none of the
offence is exclusively triable by a Court of Sessions, then, as provided
in Section 323 of Cr.P.C. the jurisdictional Magistrate should commit both
the cases for trial to the Court of Sessions.
        (v) On such committal of cross cases arising out of the same
occurrence, the Sessions Court shall scrupulously follow the procedure laid
down by the Hon'ble Supreme Court in Nathi Lal v. State of U.P., 1990 Supp.
SCC 145. 
        (vi) In any other case involving offences which are not exclusively
triable by a Court of Sessions and if it appears to the jurisdictional
Magistrate that for any of the grounds enumerated underSection 407 (1)
of Cr.P.C. that the case needs to be tried by a Court of Sessions, the
learned Magistrate shall submit a report to the High Court and on such report
the High Court may order for committal of such case to the Court of Sessions
for trial and thereupon on committal, the Sessions Court shall try the same
as per Chapter XVIII of the Code of Criminal Procedure.
        (vii) In any event, the trial court shall not record common evidence or
substitute the evidence recorded in one case as evidence in the other case
and shall not consider the evidence recorded in one case in the other case.
        (viii) In no case, the trial court shall deliver a common judgement in
two or more cases [vide Nathi Lal's case cited supra].
        (ix) In respect of the cases where trial has not already commenced
before the Court of Sessions without the case being committed, the accused
shall be at liberty to raise objection at the earliest opportunity or else,
the court shall follow the dictum laid down in State of Madhya Pradesh v.
Bhooraji and others, 2001 Cri.L.J. 4228 (1).
     (x) In respect of cross cases, for each case there has to be a separate 
public prosecutor to conduct the prosecution.?
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 08.01.2015
CORAM
 MR.JUSTICE A.SELVAM
and
 MR.JUSTICE T.MATHIVANAN

CRIMINAL APPEAL(MD)Nos.16 OF 2012
and 87 of 2012


R.Velladurai Vs.State 
Citation:2016 CRLJ3985 Madras

#criminal

#countercase