JUDGMENT : E.K. Moidu, J. The first of these appeals is by pw. 1, Asokan, a private complainant under S.417(3)of the Criminal Procedure Code, against the acquittal of 16 accused persons, in Sessions Case No. 27 of 1969 of the Additional Sessions Court, Trichur, in respect of offences under S.143, 148, 325, 326, 302, 427 and 449 read with S.149 of the Penal Code. The other appeal is by the State against the acquittal of 14 of those 16 accused persons in Sessions Case No. 26 of 1969 of the aforesaid Sessions Court in respect of the identical offences based upon a police report which was made on the strength of the first information lodged by pw. 2 Chennan. 2. The reference to the accused, witnesses and documents, in the course of this judgment will be according to the array of the accused, the order in which the prosecution witnesses were examined and the documents marked in Sessions Case No. 27 of 1969 unless stated specifically otherwise, 3. The case against these accused persons was that they formed themselves into an unlawful assembly with the common object of committing the murder of one Velappan Vydiar. armed with weapons like sticks and iron bars and committed rioting in the course of which they trespassed into the house of pw 2 at about 2.30 p. m. on 20th April 1969 and beat Velappan Vydiar and pw. 1 with the aforesaid weapons with the result that Velappan Vydiar died on the next day morning at 4.10 at the District Headquarters Hospital, Trichur, while pw. 1 was treated at the same hospital for the grievous hurt he sustained during the incident. 4. There was strained relationship between the members of the Congress Party and the Marxist Communist Party within the limits of Anthikad Police Station during the relevant period. Deceased Velappan Vydiar and pw. 1 were Congress-men and the accused persons were Marxist Communists. The relationship between them worsened on account one Gopalan putting up a hut unauthorisedly in the property of one Purushothaman. In spite of mediation at the instance of pw. 9 and deceased Velappan Vydiar, the dispute regarding the putting up of the hut could not be settled due to the insurgency of Gopalan. The relationship between them worsened on account one Gopalan putting up a hut unauthorisedly in the property of one Purushothaman. In spite of mediation at the instance of pw. 9 and deceased Velappan Vydiar, the dispute regarding the putting up of the hut could not be settled due to the insurgency of Gopalan. So Velappan Vydiar stated that if the dispute was not settled on the terms suggested by him he would put up another hut in the property of Gopalan and as a matter of fact a week prior to the incident a similar hut had been constructed in the property of Gopalan at the instance of Velappan Vydiar. In this dispute the accused persons who belonged to the Marxist Communist Party supported Gopalan while pw. 1 and deceased Velappan Vydiar who belonged to the Congress Party supported Purushothaman. 5. While the above dispute was in progress, the 15th accused and deceased Velappan Vydiar met at the Enammavu Junction Road which lies to the south of the house of pw. 2 as well as the compound of one oil mill. When they were talking regarding the putting up of the huts in the presence of pws. 1 and 2, Velappan Vydiar was proceeding along the road towards west; 7th accused who came to the spot asked Velappan Vydiar why be had put up a hut in Gopalan's property. Velappan Vydiar replied that the dispute could be settled by the next Sunday. While he was proceeding further along the road, he was struck by the 7th accused with an electric angle iron and caused an injury on his back. He was beaten in the presence of accused 1, 3 and 6 as well as others. Thereafter pws. 1, 2 and Velappan Vydiar went to the house of pw. 2 where Velappan Vydiar sat on a bench in the verandah of the house. In the meanwhile pw. 14 came there and asked Velappan Vydiar about the attack which the 7th accused made on him in the morning. When it was about 2.30 p. m. some 50 persons assembled in front of the house of pw. 2 as well as in the premises of the mill compound which is adjacent to the house. By that time accused 11 and 12 came there in a car when all those persons present at the spot went running towards the house of pw. 2 as well as in the premises of the mill compound which is adjacent to the house. By that time accused 11 and 12 came there in a car when all those persons present at the spot went running towards the house of pw. 2 carrying sticks and iron rods in their hands. Seeing the crowd going into the house, PWs. 1 and 14 and deceased Velappan Vydiar got into the front room of the house and bolted the door from inside. Accused 1, 3, 6 and 7 broke open the eastern as well as the western door by kicking with the result that the door frames fell down when they too entered the room while others stood outside the house holding the sticks and iron rods. The 1st accused then struck a blow on the head of Velappan Vydiar with an iron rod whild the 7th accused beat him with a similar rod on his leg, with the result that Velappan Vydiar fell down. pw. 1 attempted to intervene saying not to kill Velappan Vydiar. Then those persons attacked Pw.l and beat him on several parts of his body with the result that he too fell down. The other accused persons then cried out that both of them should not be spared but they should be killed. Thereafter Velappan Vydiar and pw. 1 were dragged out of the room towards the verandba, and they were also beaten on the verandah. After they were beaten again they were dragged into the court-yard and therefrom Velappan Vydiar was dragged towards the house of one Valli, who lived in the neighbourhood. pw. 1 was dragged to the entrance of the mill premises. Velappan Vydiar crawled for some distance and got into the verandah of Valli where he was lying until he was removed to the Headquarters Hospital along with pw. 1 in a car which was produced at the spot by one Gouthaman. pw.16, Assistant Surgeon, examined Velappan Vydiar at 3.45 p.m. at the hospital and Ext. P3 wound certificate was issued. pw. 1 was also examined at the hospital. But the Assistant Surgeon did not notice any visible external injury on his body except one small abrasion, 1 inch in size each on the right and back of the right arm. Ext. P4 was his wound certificate. P3 wound certificate was issued. pw. 1 was also examined at the hospital. But the Assistant Surgeon did not notice any visible external injury on his body except one small abrasion, 1 inch in size each on the right and back of the right arm. Ext. P4 was his wound certificate. In the early hours of the next day at 4.10 a m. Velappan Vydiar succumbed to his injuries. After his death, pw. 2 lodged Ext. D6 first information statement at the Town Police Station, Trichur, at 7.30 a.m. on 21-4-1969. The first information report in the case was transferred to the Anthikad Police Station within the jurisdiction of which the occurrence took place. Cws. 1, 2 and 3 were the investigating officers who were examined respectively as pws. 27, 29 and 28, in the police charge case-After the usual inquest, pw. 15 Assistant Surgeon, conducted autopsy on the dead body and issued Ext. P2 post-mortem certificate. On completion of the investigation Cw. 2 Inspector laid the charges against the 14 accused persons on 26-5-1969. 6. On 28-5-1969 pw. 1 filed Ext. D4 private complaint before the Sub Magistrate, Trichur, in respect of the same incident against those 14 accused persons and two others. That complaint was taken on file by the Sub Magistrate and on examination of pw. 1 as the sole witness during the enquiry the case was committed to the Sessions where it was numbered as Sessions Case No. 27 of 1969 against 16 accused persons of whom accused 15 and 16 were not parties to the police charge case which on committal was numbered as Sessions Case No. 26 of 1969 as against 14 accused persons. 7. All the accused persons in both the Sessions Cases denied the truth of the prosecution evidence though they admitted that they belonged to the Marxist-Communist Party and that the deceased Velappan Vydiar and pw. 1 belonged to the Congress Party. The 3rd accused, however, stated that pw. 1 and deceased Velappan Vydiar were on inimical terms with him because of a complaint which one Ammini made against pw. 1 and others that they committed rape on her and that in pursuance of that complaint his party arranged a meeting and informed the authorities to take action against pw. 1 and others. pw. 1 and deceased Velappan Vydiar were on inimical terms with him because of a complaint which one Ammini made against pw. 1 and others that they committed rape on her and that in pursuance of that complaint his party arranged a meeting and informed the authorities to take action against pw. 1 and others. pw. 1 and deceased Velappan Vydiar were said to be related to each other, and they had purposely implicated the accused persons in a false case. According to them Pw. 1 and deceased Velappan Vydiar along with their adherents created some disturbance at the Manalur Bund when there was a tussle during the course of which both Pw. 1 and Velappan Vydiar sustained injuries. That incident, according to them, took place about 1 1/2 furlongs away from the residence of pw. 2 and thereafter the local Congress-men met at the residence of pw. 2 and decided to foist a false case against the accused persons. All the accused persons therefore denied the incident as spoken to by the prosecution witnesses and stated that they did not commit any offence. 8. Sessions Case No. 26 of 1969 against 14 accused persons was tried on the basis of the police charge, while Sessions Case No. 27 of 1969 was tried on the strength of Ext. D4 private complaint against those 14 accused persons and 2 others. The learned Additional Sessions Judge, instead of consolidating the two cases for purposes of joint trial in respect of the same offences, committed in the course of the same incident, conducted two separate trials, one in the private complaint case and the other in the police charge case. In Sessions Case No.27 of 1969, 23 witnesses were examined of whom 3 witnesses were examined as Court Witnesses while in the other case 29 witnesses were alleged to have been examined. pws. 1 to 7, 9, 10 and 12 to 20 examined in Sessions Case No.27 of 1969 were not examined in Sessions Case No 26 of 1969 but the certified copies of the depositions of those witnesses were produced, marked and utilised as evidence of pws. 1 to 18 respectively in Sessions Case No. 26 of 1969. However, pws. 19 to 25 in Sessions Case No. 26 of 1'969 were not examined at all in Sessions Case No. 27 of 1969. pws. 27. 1 to 18 respectively in Sessions Case No. 26 of 1969. However, pws. 19 to 25 in Sessions Case No. 26 of 1'969 were not examined at all in Sessions Case No. 27 of 1969. pws. 27. 28 and 29 in Sessions Case No. 26 of 1969 were respectively examined as CWs. 1, and 2 in Sessions Case No. 27 of 1969. In Sessions Case No. 27 of 1969 two more witnesses were examined as pws. 8 and 11 who were not examined in Sessions Case No. 26 of 1969. Charge Witness No. 27 in Sessions Case No 26 of 1969 was arrayed as the accused No. 15 in Sessions Case No. 27 of 1969 AH the documents had been marked in either case, except Ext. D50 which was not produced or marked in the private complaint case. None of the material objects had been produced in the private complaint case, though 11 MOs. were marked in the other case. 9. Before consideration of the appeals on merits, it is necessary to dispose of the objection raised by the learned counsel for the accused persons that the joint trial of the two cases, one on the police report and the other on the private complaint, was irregular and unsustainable as the procedure adopted by the learned Additional Sessions Judge was not in accordance with law. The trials, as it would appear from the records of the cases, were conducted separately, one in Sessions Case No. 26 of 1959 and the other in Sessions Case No. 27 of 1969. The learned Additional Sessions Judge did not examine all the witnesses in Sessions Case No. 27 of 1969. Some of the eye-witnesses examined in Sessions Case No. 27 were not examined in Sessions Case No. 26 of 1969. He had chosen to examine in the former case pws. 8 and 11 as two more eye-witnesses who were not examined in the police charge case. Similarly a number of witnesses examined as pws 19 to 26 in the police charge case were not examined in the private complaint case. Some of those witnesses were material witnesses who could not have been omitted to be examined in the private complaint case. pw. Similarly a number of witnesses examined as pws 19 to 26 in the police charge case were not examined in the private complaint case. Some of those witnesses were material witnesses who could not have been omitted to be examined in the private complaint case. pw. 26, Head Constable, for example examined in the police charge case, was considered to be a material witness according to both sides and yet he had not been examined in the private complaint case. None of the material objects had been marked in the private complaint case, though they had been marked in the connected case. It is also significant to note that the learned Additional Sessions Judge made use of the certified copies of the evidence of Pws. 1 to 7, 9. 10 and 12 to 20 of the private complaint case in the police charge case without examining them in that case. At the outset it could be said that it did not appear that the procedure adopted by the lower Court was in accordance with law. In this regard, a relevant passage which occurred in Banwari v State of Uttar Pradesh (AIR. 1962 SC. 1198) may be seen. It reads: "The procedure of recording evidence with respect to the offences which were the subject of different Sessions Trials in the proceedings of one Sessions Trial alone, is not certainly warranted by the provisions of the Code of Criminal Procedure. Every separate trial must proceed separately, with the result that every proceeding, including the recording of evidence, in each trial should be separate. The question, however, is whether this wrong procedure adopted by the learned Sessions Judge, has vitiated the trial, irrespective of the fact whether a prejudice has been caused to the accused or not." In the two cases on hand, the learned Additional Sessions Judge did not purport to consolidate the committal orders and try the accused jointly at one trial. He had taken evidence in both the cases separately and he delivered two separate judgments in each of the cases. The accused were questioned separately. There had been no amalgamation or clubbing of the two cases as could be seen from the records of these cases. He had taken evidence in both the cases separately and he delivered two separate judgments in each of the cases. The accused were questioned separately. There had been no amalgamation or clubbing of the two cases as could be seen from the records of these cases. It is therefore necessary to consider whether the procedure adopted by the lower court had in any way vitiated the trial irrespective of the fact that the trial had caused prejudice to the accused persons or not. It is necessary to point out an early decision on the point in Thakor Singh v. Emperor (AIR. 1927 Lahore 781). In that case, three accused persons were prosecuted for murder of two sets of persons in two separate Sessions Cases. While the trial was in progress, the defence evidence in the first trial was allowed to be treated as evidence in the other case with the consent of parties and so the certified copy of the deposition was produced and marked. In the above decision, the learned Judges pointed out that the defence given by the accused persons in the second trial was not duly recorded, as required by S.353 Crl. P. C. and that the fact of the accused consenting to the irregularity would not give the procedure legal sanction and that therefore the irregularity vitiated the trial. In a decision of the Madras High Court in K. K. Ummar Haji, In re. (AIR. 1923 Madras 32) wherein depositions of witnesses examined at the previous trial were exhibited without the witnesses being examined denovo in the other trial, it was held that there had been a deviation from the normal course of procedure which would ordinarily vitiate the proceeding and the consent of the accused would not cure the irregularity. This decision was, however, distinguished in a later decision of the Madras High Court in Krishnayya Naidu v. Emperor (AIR. 1930 Madras 505) where it was held that if in a trial court depositions given by defence witnesses when examined as prosecution witnesses in the counter case were utilised with the consent of both sides and if these witnesses were called and examined in the presence of the accused and sworn to the truth of their previous statements, when filed with their consent to save time, there was nothing illegal or irregular in such procedure. In that decision the Lahore decision referred to above had also been distinguished. Any way it is relevant to point out that in the later Madras decision an opportunity was given to the witnesses themselves to swear to the truth of their previous depositions which were marked in the other case and therefore their Lordships thought such a procedure was not illegal or irregular as it was intended to save time of the Court. But even assuming for purposes of argument that the later decision of the Madras High Court permits the certified copies of depositions taken in one case to be marked in the connected case with the consent of parties who swore to the truth of their previous statements, nothing of the sort was done in the cases on hand. The depositions of pws. 1 to 7, 9, 10 and 12 to 20 were marked and used in the police charge case without those witnesses being questioned as to the truth of their statements in their depositions and without any such record as to the truth of their statements, it is difficult to bold in the case in which the depositions were marked that the procedure followed was in accordance with law. 10. In Siddic Ali v. Rex (AIR. 1950 Allahabad 119), the Sessions Judge split up the case which was committed under a single committal order into three separate Sessions Cases, and trial was conducted separately in each case for the offences under S.409 and 467 of the Penal Code. The statement of a witness recorded in one Sessions Case was transferred to the records of the other two cases instead of examining the witnesses afresh in each of those latter cases. The High Court of Allahabad held that the failure to examine those prosecution witnesses in each of the Sessions Cases vitiated the trial and therefore the conviction and sentence in those two Sessions Cases were set aside 11. Recourse to S.33 of the Evidence Act can be resorted to only on the ground that the witness is incapable of giving evidence. Such a contingency has not arisen in the cases on hand. In this regard the Privy Council in Chainchal Singh v. Emperor (AIR. 1946 PC. Recourse to S.33 of the Evidence Act can be resorted to only on the ground that the witness is incapable of giving evidence. Such a contingency has not arisen in the cases on hand. In this regard the Privy Council in Chainchal Singh v. Emperor (AIR. 1946 PC. 1) made the following observation: "When evidence given by a witness in a judicial proceeding is sought to be used under S.33 in a subsequent judicial proceeding or in a later stage of the same judicial proceeding on the ground that the witness is incapable of giving evidence that fact must be proved strictly. In a civil case a party can, if be chooses, waive the proof, but in a criminal case strict proof ought to be given that the witness is incapable of giving evidence." It is also relevant to point out that S.343, 356 and 363 of the Code of Criminal Procedure could not have been effectively made use of by the trial Judge if the deposition of witnesses was alone marked in the case which be tried separately S.353 Cr. P.C. makes it clear that mere physical presence of the accused is not sufficient while the evidence is adduced in the case. The expression "shall be taken in the presence of the accused" would indicate that the accused must be given all the opportunities to defend himself by testing the veracity of the witness through the process of cross-examination. It did not appear from the records of these two cases that the Additional Sessions Judge afforded any opportunity to the accused persons to cross-examine the witnesses whose depositions were marked in the police charge case. In a similar situation, the Rajasthan High Court condemned the practice in Sukanraj v. State of Rajasthan (AIR. 1967 Rajasthan 267) and held as follows: "In my opinion the procedure adopted in taking on record the copies of the statements of the witnesses from one case to another and then to treat these copies as evidence is a serious departure from the usual and proper procedure prescribed by the Code of Criminal Procedure. 1967 Rajasthan 267) and held as follows: "In my opinion the procedure adopted in taking on record the copies of the statements of the witnesses from one case to another and then to treat these copies as evidence is a serious departure from the usual and proper procedure prescribed by the Code of Criminal Procedure. Even if it is assumed for the sake of argument that the accused had given his consent to the adoption of such a novel procedure such a consent, in my opinion, cannot give any legal sanctity to this type of evidence which has been brought on record in clear violation of the mandatory provision of the law. It is a well established rule of law that neither the accused nor his counsel can validate by giving his consent anything which is not authorised by law." The High Court further pointed out that in such cases S.537 Cr. PC. cannot be attracted to cure the defect of procedure which infringes the mandatory requirement of the Code. In that regard the following further observation may also be seen at the same page: "The procedure adopted by the trial Court to bring the evidence on record is clearly in derogation to the express provision of the law and therefore, it is difficult for me to accept the contention of the learned Deputy Government Advocate that the defect is curable as no prejudice has been caused to the accused. In my opinion the provisions of S.537 of he Code of Criminal Procedure cannot be attracted to cure a defect of procedure which infringes the mandatory requirement of the Code. This violation is clearly an illegality and not an irregularity. Such an illegality vitiates the trial and no amount of consent of the accused or his counsel can cure the illegality." 12. Separate trial is the accepted principle in procedure in each case. There is no provision anywhere in the Code of Criminal Procedure that the evidence recorded in one case can be treated as evidence in the other case even with the consent of the parties or their counsel. The general rule in the case of criminal trials is that there should be separate trial with respect to each distinct offence. There is no provision anywhere in the Code of Criminal Procedure that the evidence recorded in one case can be treated as evidence in the other case even with the consent of the parties or their counsel. The general rule in the case of criminal trials is that there should be separate trial with respect to each distinct offence. The object behind that provision is that the attention of the trial court should be directed to the evidence relating to the charge under enquiry and irrelevant matters should be excluded. The object is not achieved by adopting the procedure resorted to in this case, but defeated by placing on record mere copies of statements of witnesses recorded during the court of another trial. 13. The learned Additional Sessions Judge could have avoided the transfer of depositions of prosecution witnesses examined in one case to the file of the other case by consolidating or clubbing the two cases and conducting one trial in respect of the same charges. As a matter of fact the accused persons moved the Additional Sessions Judge by a petition for permission to order one trial and avoid marking of deposition of witnesses of one case in the other. That petition was not allowed; when the matter was taken up to this Court by the accused persons in criminal revision, a Division Bench of this Court dismissed that petition stating that "the strain and hardship for the fourteen accused common to both the cases to stand two different trials was unavoidable and we cannot help it". It further stated: "We would leave it to the parties concerned, and to the Court to devise the best possible way of arranging the trial of two cases." The accused persons were therefore not to be blamed for the trial of the" two cases separately allowing the evidence of large number of witnesses to be adduced only in one case with copies of the depositions of those witnesses transferred and used in the other case. 14. 14. When there was joint trial or separate trial for the offences committed by several accused persons in the course of the same transaction in such cases, one instituted against the same accused persons upon a police report initially and the other instituted against those accused persons and some others upon a private complaint, the identity of the two cases could be maintained thought to enable the private complainant as well as the State to file separate appeals, the State under S.417(1) and the private complainant S.417 (3) of the Code of Criminal Procedure, if there was an acquittal of the accused persons in both the cases. On this question reference may be made to the decision in Bhimappa Bassappn Bhu Sannavar v. Laxman Shivarayappa Samagouda (AIR. 1970 SC. 1153). That decision was not in conflict with the earlier decision of the Supreme Court in Khetra Basi Samal v. The State of Orissa (AIR. 1970 SC 272). In the latter decision there were ten accused persons in the police charge case and accused 11 to 31 were another set of accused persons who were brought into the party array on the basis of a private complaint. The complainant Jagabandhu Behera filed a petition to the Court of the Magistrate to club the two cases to be tried together. Accordingly those two cases were tried together following the provisions of S.252 Cr. PC. but finally the Magistrate acquitted all the accused persons. The question was whether an appeal as against accused 1 to 10 in the police charge case would be instituted by the first informant as against the acquittal of the accused persons under S.417(3) Cr. PC. The High Court found in favour of the view that the appeal was maintainable. But the Supreme Court held otherwise. Its opinion was expressed as follows: "It was contended before us on behalf of the appellants that the appeal to the High Court was incompetent and in our view this contention must be accepted. There were two separate cases of which cognizance was taken separately. One was started on the basis of a police report while the other was on the complaint of Jagabandhu Behera. There were two separate cases of which cognizance was taken separately. One was started on the basis of a police report while the other was on the complaint of Jagabandhu Behera. As the accused in both the cases were said to have committed the offences in the course of the same transaction, the cases were clubbed together for the purpose of trial and such a course was clearly permissible under S.239, Cr.PC. That did not however alter the nature of the cases so as to affect their appealability under S.417. The two cases retained their individuality except for the convenience of the trial. If the case has ended in conviction they would have had to be separately recorded. The first ten accused would have had to appeal from their conviction and sentence in the G R. case and similarly the remaining accused from the complaint case. If the State did not think it proper to direct the Public Prosecutor to present an appeal to the High Court from the order of acquittal in the G.R. case it might have been open to the complaint to invoke the powers of the High Court under S 439 of the Code if proper grounds for revision were present." In the later Supreme Court decision-referred to above, the two Sessions Cases were separately numbered and the identity of the two cases was maintained right upto the end of the Sessions trial. In that case, the police charge was against accused 1 and 2. But on application of one Bhimappa a private complaint was instituted against the 3rd accused alone alleging the same offence with which accused 1 and 2 stood charged. The Sessions Judge found accused 1 to 3 not guilty and acquitted them. The complainant, Bhimappa, then applied for special leave in both the cases to file an appeal under S.417 (3) but his right to ask for special leave was not accepted in the High Court. Setting aside that decision the Supreme Court held as follows in Para.18 of the judgment: "Now there can be no manner of doubt that one of the cases was instituted on the report of a police officer and the other on the complainant of the complaint. There can be no question of merger because the identity of the two cases is maintained right up to the end of the Sessions trial. There can be no question of merger because the identity of the two cases is maintained right up to the end of the Sessions trial. The case of Bhimappa proceeded on its own number and although evidence was led in both the cases together, the acquittal was recorded in each of the two cases. The police did not present a charge sheet against Mallappa and the trial of Mallappa can be said to be in the other case and not in the case filed by the police. In this view of the matter it is quite plain that Bhimappa was entitled to move the High Court for special leave in his own case. The order saying that he had no standing cannot, therefore be sustained." The Supreme Court, however, did not state whether or not Bhimappa was entitled to file appeal against 3rd accused; alone or against the other two accused, though it found that he was entitled to have a hearing of his petition for special leave under S.417 (3) of the Code. Whether he could ask for leave against the 3rd accused alone or as against the other two accused was left open to be decided by the High Court. Any way, it was clear that there would have been no difficulty in getting sanction to file an appeal under S.417 (3) as against the 3rd accused who was an accused in his complaint. On a consideration of the above two Supreme Court decisions it is clear that pw. 1 who instituted the private complaint against 16 accused persons would have the right to file an appeal under S.417 (3) Cr. P. C. The fact that the petition for leave to appeal under S.417 (3) Cr. P. C. was allowed by this Court at an earlier stage before the appearance of the accused persons will not deprive their right to argue that the appeal under S.417 (3) will not be maintainable. Anyway, the lower Court had conducted two separate trials keeping the two cases independent of each other, and two separate judgments had been pronounced. Under those circumstances it is clear that Pw.1 would be entitled to aa appeal under S.417 (3) Cr. P. C. as against the acquittal in Sessions Case No. 27 of 1969. 15. Anyway, the lower Court had conducted two separate trials keeping the two cases independent of each other, and two separate judgments had been pronounced. Under those circumstances it is clear that Pw.1 would be entitled to aa appeal under S.417 (3) Cr. P. C. as against the acquittal in Sessions Case No. 27 of 1969. 15. The question that still remains to be considered is whether in the circumstances of the two cases pending before the Additional Sessions Judge, it would be just and proper to conduct one trial or two separate trials in the two Sessions Cases. The two separate trials in these cases had brought about not only the strain and hardship to the accused persons but also led to the deviation from the rules of procedure which could not be set right by virtue of S.537 Cr. PC. The Magistrate took cognizance of the offences on the basis of the police charge under S.190 (1) (b) Cr. P. C. and the private complaint under S.190 (1) (a) Cr. P.C. S.207 Cr. P. C. reads as follows: "In every inquiry before a Magistrate where the case is triable exclusively by a Court of Session or High Court, or, in the opinion of the Magistrate, ought to be tried by such Court, the Magistrate shall, (a) In any proceeding instituted on a police report, follow the procedure specified in S.207A; and (b) in any other proceeding, follow the procedure specified in the other provisions of this Chapter." It is incumbent on the Magistrate to follow the procedure in S.207A in respect of cases which the Magistrate took cognizance on police report, and to follow the procedure in S.203 Cr. P. C. and subsequent sections of the Chapter in respect of case which was taken cognizance of by the Magistrate under S.190(1)(a). The Magistrate, for the purpose of preliminary inquiry in respect of cases to be committed to the Sessions cannot consolidate and conduct one enquiry in such cases which are taken cognizance of under S.190(1) (a) and S.190 (1) (b). It has been held in very many cases that the order consolidating the proceedings, one under S 207A. add the other under S 203 Cr. PC. It has been held in very many cases that the order consolidating the proceedings, one under S 207A. add the other under S 203 Cr. PC. by the Magistrate was entirely wrong According to the amended Criminal Procedure Code, the procedure for inquiry in cases of trial by the Court of Sessions on police report has been simplified and by tagging police report case with the private complaint case, the purpose of saving time in trials will not be saved. The procedure under S.208 and the subsequent sections is different and from the difference it is obvious that the Magistrate has no right to club cases coming for enquiry under S.207A and S.208 Cr. P. C. That he has no such right has been held in very many cases. See: Gopal v. State (AIR. 1958 Rajasthan 152): Monphool v. The Stale (AIR. 1960 M. P. 177); State v. Shivappa (1965 MLJ. (Crl.) 458); and M. Mohammad Haneef v. K. P. Narasi Reddy (AIR. 1969 A. P.) 206). In ail these cases it is also pointed out that the holding of the enquiry separately under S.207A and 208 Cr. P. C. would facilitate the Sessions Judges to conduct a single trial instead of conducting two trials at the Sessions. 16. Ramaswamy J. in In re Mahalxinga Thevar (AIR. 1959 Mad. 521) relied upon a circular alleged to have been issued by the Madras High Court permitting separate trials even in respect of offence charged by the police and instituted on the private complaint against the same accused persons. The reasoning of the learned Judge to conduct two different trials is couched in the following words: "Where a case and a counter-case are tried by a Sessions Judge no hard and fast rule can be laid down in regard to the procedure to be adopted. Trials must be separate and in quick succession and separate judgments should be delivered. The conclusions in each case must be founded on and only on the evidence in each case. To avoid conflicting decisions and to arrive at a judgment after having a complete picture, it is advisable to complete the trial in both the cases and deliver judgments after hearing arguments in both the cases. The conclusions in each case must be founded on and only on the evidence in each case. To avoid conflicting decisions and to arrive at a judgment after having a complete picture, it is advisable to complete the trial in both the cases and deliver judgments after hearing arguments in both the cases. The direction in the circular was therefore proper and the contention failed in the face of the larger principles involved." On our part we would be satisfied to base our view against clubbing of the two types of cases on only the provisions of S.207 of the Code. The ruling in Mukania v. Achalij (AIR. 1952 Raj. 160), though expressed the view that it is open to a Magistrate under S.190(1) Cr. P.C. to act on any one of the three grounds mentioned in the clauses in that Section and therefore the three clauses are not mutually exclusive and it is possible for the Magistrate to take cognizance of any offence upon two or more such grounds, it could no longer be held that the Magistrate was competent to conduct one enquiry, if the case is based upon police report as well as the private complaint as it would be against the clear provisions of S.207 Cr. P. C. The ruling in the above case that a joint trial, in the circumstances of the two cases, would be proper and that therefore the Magistrate had the jurisdiction to amalgamate the two cases to hold a joint trial of the accused mentioned in the police report and in the complaint provided he could do so under S.239 could no longer be good law after different procedure is provided for under S.207A and 208 Cr. P.C. The proposition laid down in the above decision that the three clauses of S.190(1) are not mutually exclusive and that it is possible for the Magistrate to take cognizance of any offence upon one or more of such grounds mentioned in that section may however hold good. Any way, separate trials can be avoided at the Sessions if provisions of S.239 Cr.P.C, are complied with. The decision in Yerra Narasimhagari Narasimha Reddi v. The State (AIR. Any way, separate trials can be avoided at the Sessions if provisions of S.239 Cr.P.C, are complied with. The decision in Yerra Narasimhagari Narasimha Reddi v. The State (AIR. 1961 A.P. 304) that there is no justification for a joint trial of two Sessions Cases one committed on the police charge and the other on the private complaint is not an authority for future guidance as its scope can be restricted only to cases of an enquiry contemplated under S.207 Cr. P. C. That decision therefore is not an authority for the proposition that joint trial of the Sessions Cases, one committed under the police charge and the other on private complaint, is invalid. But the decision in K. Perumal v. Chithanathan (AIR. 1966 Mad. 142) is on all fours with the facts and circumstances of the present case for the proposition that the two cases on the basis of the two committal orders could be tried together in one single case at the Sessions by framing suitable charges on the materials available at the time and trying all the accused at one and the same trial, provided such procedure was not opposed to the rule of joinder of charges or does not cause prejudice to the accused. The opinion in the above case is expressed at page 144 of the report. Para.6 of the judgment reads as follows: "So far as the Sessions Court is concerned, where there are two committal orders, arising out of a police report and a private complaint, the Code does not enjoin, as far as we can see, different procedures to be followed. Para.6 of the judgment reads as follows: "So far as the Sessions Court is concerned, where there are two committal orders, arising out of a police report and a private complaint, the Code does not enjoin, as far as we can see, different procedures to be followed. Though there is no specific provision in the Code to which our attention has been invited, having regard to the fact that there is only one procedure prescribed and to be followed at sessions trials, there would, in our view, be no bar to a Sessions Judge, before he commences trial, to club the two cases on the basis of the committal records before him, frame suitable charges on the materials available at the time and try all the accused at one trial, provided, of course, the offences forming the subject matter of the charges arose out of the same set of facts and transactions, and provided further that such a procedure does not offend the rule relating to joinder of charges or of accused." Veeraswami J. (as he then was) who spoke for the Division Bench in the above Madras decision supported the procedure also on the ground that S 270 Cr. P.C. makes it incumbent upon the Public Prosecutor to conduct both the trials one under the police charge and the other on private complaint as had rightly been done in the instant cases and the procedure to be followed in such cases is expressed by the learned Judge in the following words: "In such a trial, it will be open to the Sessions Judge to examine both the witnesses cited by the police as well as by the complainant. This approach to the procedure would also appeal to derive some support from the provisions of S.270 of the Code, which requires that in every trial before a Court of Session the prosecution shall be conducted by a Public Prosecutor. We think that such a procedure will not only simplify the proceedings but make them less burdensome and more convenient from the point of view of everybody and save the valuable time of the Court. S.417 of the Code may then be available also to an aggrieved complainant." 17. The Criminal Procedure Code provides by S.239 to 239 that ordinarily each distinct offence must be separately tried except in cases covered by provisions of S.234, 235, 236 and 239 Cr. S.417 of the Code may then be available also to an aggrieved complainant." 17. The Criminal Procedure Code provides by S.239 to 239 that ordinarily each distinct offence must be separately tried except in cases covered by provisions of S.234, 235, 236 and 239 Cr. P.C. If cases are committed to Sessions in respect of distinct offences which do not cover the exception in S.233, it would be clear that such cases should not be tried at one trial by consolidating those cases. If the provisions of S.239 are satisfied, the Sessions Judge should have conducted one trial in respect of identical charges against all the accused persons if the offences were committed in the course of the same transaction irrespective of the fact that the case is instituted on police report or on private complaint. It is also relevant to paint out that in deciding the question whether or not more persons than one can be tried together under S.239(d) Cr. P. C., the Court has to consider the nature of the accusation made by the prosecution. If the accusation made by the prosecution would justify a joint trial of more persons than one the validity of such trial cannot be effectively challenged if the said accusation is not established according to law. If the accusation made shows that several persons are charged with different offences and the said offences prima facie appear to have been committed in the course of the same transaction, joint trial can and should be ordered. The point of time in the procedure at which it has to be determined, whether the condition that the offences alleged had been committed in the course of the same transaction has been fulfilled or not, is at the time when the accusation is made and not after the trial is concluded and the result known. As regards a single trial when there is a police charge as well as a private complaint, the Supreme Court had occasion to consider its feasibility in a decision in Banwari v. State of Uttar Pradesh (AIR. 1962 SC. 1198). That was a case where two accused persons stood charged under S.302 and 307 read with S.341, IPC. Those accused persons were alleged to have committed double murders one after another and attempted to commit the murder of a third person. 1962 SC. 1198). That was a case where two accused persons stood charged under S.302 and 307 read with S.341, IPC. Those accused persons were alleged to have committed double murders one after another and attempted to commit the murder of a third person. The murder as well as the attempt to commit murder was alleged to have been committed during the course of the same transaction in spite of which three separate cases were numbered in respect of each of the incidents in the Sessions Court. The Sessions Judge conducted three separate trials on the basis of three committal orders but he recorded evidence only in one case. The learned Judges of the Supreme Court, on a consideration of the relevant provisions contained in S.233 to 239 Cr. P. C., came to the conclusion that in a case of the type pending before that Court, a single trial of all the accused persons in respect of identical charges was in accordance with law and permitted by the provisions of the Criminal Procedure Code. In approving of such procedure the Supreme Court stated as follows: "The committal order just gives the Sessions Court cognizance over the trial of the persons committed. The committal order does not bind the Sessions Judge to try those persons alone at one trial, who have been committed by the particular committal order. The question of the trial of the various committed persons does not depend on the number of committal orders, but on the provisions of S.233 to 239 of the Code. If one trial can be justified under those provisions and there is no prejudice to the accused, the Sessions Judge can certainly consolidate the committal orders in those cases and try the accused at one trial. He may, for the purpose of the trial, frame a fresh charge with appropriate counts against the accused, in substitution of the charges framed by the Magistrate in the different committal proceedings If the persons have been committed by one committal order alone with respect to different offences which could not be tried at one trial in accordance with these sections, the joint trial of those persons on those charges would be illegal. This makes it clear that the validity of a joint trial before the Sessions Judge is dependent on the fact whether the provisions of the Code justify one joint trial or hot." And after discussing the grounds for joint trial as well as single trial on the basis of the provisions of S.233 to 239 of the Code, the learned Judges came to the following conclusion: "We, therefore, hold that though a Sessions Judge cannot try at one trial persons committed under different committal orders with respect to distinct offences whose joint trial is not warranted by the provisions of S.234 to 239 of the Code, he is competent to try at one trial persons who can be tried at one trial under the provisions of those sections even if there had been separate committal orders." 18. In spite of the fact that one single trial is provided under S.239 of the Criminal Procedure Code, the learned Additional Sessions Judge in this case did not purport to consolidate the committal orders and try the accused persons jointly at one trial. In these cases, the lower Court conducted two separate trials in which witnesses examined in one case were not examined in the other and in the case where witnesses were examined the depositions of witnesses examined in the other case were produced and utilised as evidence. The accused had been questioned separately in each of the cases. Evidently, argument would have also been heard separately in each of the cases as it would appear from the facts that cognizance was taken in each of the cases, one under police report and the other on private complaint, some of the averments of which were diametrically opposed to each other regarding the incident. The Supreme Court in the above decision, quoted with approval, the observations made in Pulukuri Kotayya v. Emperor (AIR. 1947 PC. 67) to elucidate as to how far irregular procedure followed at such trials against the provisions of the Criminal Procedure Code could be cured under S.537 of the Code. The Supreme Court in the above decision, quoted with approval, the observations made in Pulukuri Kotayya v. Emperor (AIR. 1947 PC. 67) to elucidate as to how far irregular procedure followed at such trials against the provisions of the Criminal Procedure Code could be cured under S.537 of the Code. The observation of the Privy Council in the said decision is as follows: "When a trial is conducted in a manner different from that prescribed by the Code the trial is bad, and no question of curing an irregularity arises; but if the trial is conducted substantially in the manner prescribed by the Code, but some irregularity occurs in the course of such conduct, the irregularity can be cured under S.537, and none the less so because the irregularity involves, as must nearly always be the case, a breach of one more of the very comprehensive provisions of the Code." The impugned procedure adopted by the learned Additional Sessions Judge in these two cases does not relate to competency of the Court to try the various offences at one trial; but in conducting two trials he had gone wrong in adopting the procedure which is unknown to the Criminal Procedure Code and as such it could be said that the procedure adopted by him is an irregular procedure which vitiated the trial. The learned Additional Sessions Judge should have in the circumstances of the case, conducted only one trial consolidating the two committed orders by framing fresh charges against all the accused persons in substitution of the charges framed already by the Magistrate in two separate committal orders. He should have examined all the prosecution witnesses produced by the State in the police charge case together with the witnesses produced by the complainant in the other case and conducted one trial, against all the accused persons including the two additional accused persons who were brought in the party array in Sessions Case No. 27 of 1969. 19. The Sessions Judges will follow the procedure set out in these appeals in appropriate Sessions Cases which may come up before them in future. 20. 19. The Sessions Judges will follow the procedure set out in these appeals in appropriate Sessions Cases which may come up before them in future. 20. In spite of the procedural irregularity which vitiated the trial in Sessions Case No 26 of 1969 connected closely with the other case, we are not satisfied that there is sufficient ground to set aside the acquittal orders against the accused persons after anxious consideration of the entire evidence and other circumstances brought on record in the respective cases. The facts of the case require no repetition. pw. 1 lodged Ext. D4 private complaint on 28 5 1969 before the Magistrate. It was long after the first information which pw. 2 lodged at the Trichur Police Station at 7-30 a. m. on 21-4-1969. There was too much delay for pw. 2 to have lodged the first information after the alleged incident which took place at about 2-30 p. m. on 20-4-1969. Pw. 2 had no valid explanation to offer as to why he did not lodge the first information at the Anthikad Police Station, within the jurisdiction of which the occurrence took place. That police station is within a short distance from the place of occurrence. pw. 2 had no case that he went to that police station. However, he stated that he toad occasion to meet the head constable Pw. 26 in the connected case at the place of occurrence as well as outside soon after the incident. The Head Constable had occasion to inspect the place of occurrence and to see for himself the damage alleged to have been caused to the house of pw. 2 as a result of the alleged incident. The Head Constable had also occasion to meet pw 6. The evidence of pws. 2 and 6.indicated that the police at Anthikad was not very helpful and that therefore the first information could not be lodged with the police. In the course of the incident, the evidence was, that pw. 2 had occasion to send his son pw. 3 as well as his daughter pw. 6 to intimate the police that pw. 1 and deceased Velappan Vydiar were restrained by some of the accused persons at the residence of pw. 2. But neither the informant to the police nor any other person to whom pws. 2, 3 and 6 gave such news had been examined in the case. 3 as well as his daughter pw. 6 to intimate the police that pw. 1 and deceased Velappan Vydiar were restrained by some of the accused persons at the residence of pw. 2. But neither the informant to the police nor any other person to whom pws. 2, 3 and 6 gave such news had been examined in the case. Any way, the evidence of the Head Constable showed that the Sub-Inspector, Anthikad, knew about the incident, which was in progress at the alleged place of occurrence. The Sub Inspector examined as Cw. 1 did not take any action in the matter at that time. He was purported to have said that such restraint of persons during the political agitation in the area was very common and that no special attention was necessary at the time. It had to be said that the conduct of the Sub Inspector was not free from doubt. Any way, that circumstance by itself would not establish the truth of the prosecution case considering the other evidence in the case. pw 2 had no valid reason to delay the first information to be lodged on the next day morning at the Trichur Police Station, and while he gave Ext. D6 first information, he did not give a true picture of the incident. His evidence in the Court was diametrically opposed to the version he gave in Ext. D6. The evidence was that at about 9.00 a.m. there was an incident at the road at which the 7th accused beat Velappan Vydiar on his back with an electric angle iron. That part of the case did not find a place in Ext. D6. The present version in the evidence is that a huge crowd consisting of about 50 persons ran towards the house of pw. 2 about 2.30 p.m. after pw. 1 and Velappan Vydiar got into the house and remained there since the morning incident. It would appear from the present evidence that from the time of the morning incident upto 2.30 p.m Velappan Vydiar and pw. 1 were taking rest in the house of pw. 2. But Ext. D6 case was that Velappan Vydiar and pw. 1 were pursued by a crowd from the road towards the house of pw. 2 when Velappan Vydiar and pw. 1 along with pw. 1 were taking rest in the house of pw. 2. But Ext. D6 case was that Velappan Vydiar and pw. 1 were pursued by a crowd from the road towards the house of pw. 2 when Velappan Vydiar and pw. 1 along with pw. 14 got inside the house and bolted the door within, and thereafter the subsequent events took place. That pw. 1 and Velappan Vydiar were attacked by a crowd of persons pursuing them towards the house of pw. 2 did not find a place in Ext. D6. That such a case trotted out in Ext. D6 appeared to be a subsequent development, which came to be unfolded before the Court long after the incident. Even the deceased Velappan Vydiar had no case that he was attacked at the house of pw. 2. He told the doctor, pw 16, at the District Headquarters Hospital when be was examined for the first time (vide Ext. P3 wound certificate) that the injuries on his person were caused by the Ist accused Narayanan beating him at the Enammavu bund. The evidence did not establish that the bund referred to by the deceased Velappan Vydiar was anywhere within the vicinity of the place of occurrence. On the contrary, the inference from the evidence was that it was about 11/2 furlongs away from the place. If Velappan Vydiar himself had no case that he was beaten at the residence of pw. 2 how could the witnesses develop such a case in the evidence they gave in Court? pws. 1 to 8, 11, 13, 14 and 19 were the witnesses who saw the incident cither wholly or partly -from beginning to end. pws. 1, 2, 10 and 12 gave evidence as to the incident which took place in the morning at the public road. pws. 1, 6 and 14 gave evidence as regard the incident which took place in the room. Except pws. 8 and 11, the depositions, of witnesses had been marked in the police charge case though they were not examined in that case. A series of contradictions had been made out in the course of the trial in the evidence of these witnesses to show that they gave one version in the Court and quite a different version to the police under S.161 Cr. PC. The evidence of pws. A series of contradictions had been made out in the course of the trial in the evidence of these witnesses to show that they gave one version in the Court and quite a different version to the police under S.161 Cr. PC. The evidence of pws. 8 and 11 however stood on a different footing There can be no dispute that credit of a witness may be impeached by the opposite party or with the consent of the Court by the party who calls him by various ways, one of which is as provided by sub-section (3) of S.155 of the Evidence Act, viz, by the proof of former statements inconsistent with any part of his evidence which is liable to be contradicted. Impeaching the credit of a witness either under S.145 of the Evidence Act (written statements) or under S.155 thereof (oral statements) can be done by drawing his attention to these statements whether written or oral. This can ordinarily be done by admission of the witness that be had made a statement or by proving it otherwise by examination of the police officer who recorded it. That was the procedure followed in these cases to contradict the eye-witnesses examined in the private complaint in relation to their previous statements made to the investigating officer in respect of the same offence committed in the course of the same incident. That the witnesses examined in Court could be contradicted with their earlier statements under S.161 in the course of the investigation of the same offence by the police and in respect of which police case was also instituted was found to be in accord with the accepted principles of procedure as contemplated in S.162 Cr. PC. read with S 145 Evidence Act as held in the decision in Doman Mohton v. Surajdeo Prasad (AIR. 1970 Patna 95). The contradictions made out as against these witnesses established that their evidence was not trustworthy or reliable as they had chosen to give two versions, one in Court and the other to the police during investigation. 21. pws. 8 and 11 were said to be independent witnesses who had no occasion previously to give a statement to the police, though they had enough time and occasion to do so. They had no valid explanation why they did not appear before the police to give, a statement regarding the incident which they witnessed. pws. 21. pws. 8 and 11 were said to be independent witnesses who had no occasion previously to give a statement to the police, though they had enough time and occasion to do so. They had no valid explanation why they did not appear before the police to give, a statement regarding the incident which they witnessed. pws. 8 and 11 did not open their mouth until they were examined in court to tell the authorities concerned as to the incident they witnessed. They knew that the police officers had visited the place of occurrence in the same evening and they knew that the offences made out against the accused persons were grave ones. pw. 7 at one stage in his evidence stated: "I do not remember fully the entire occurrence which I saw." It did not appear from the evidence of pw. 8 that he would have visited the place of occurrence on the alleged date of the incident. He was a college student who lived and studied at Trichur, which was far away from the place of occurrence. He knew that the crime made out against the accused persons was very serious and that police should investigate. Yet he kept quiet without informing the police as to how the incident took place. The evidence of these witnesses contradicted with the other evidence in the case that a crowd of persons pursued Pw. l and Velappan Vydiar and that the said crowd had assembled in the premises of the mill. pw. 8 stated that large number of persons collected only after the incident. He did not state that all the accused persons were armed during the incident. That was also a contradiction in his evidence as against the evidence of other witnesses. The evidence of pw. 8 that he saw the 7th accused twisting the legs of Velappan Vydiar was not spoken to by the other witnesses. The evidence of pws. 8 and 11 could not therefore be accepted as reliable or trustworthy. 22. The incident was started by the 7th accused beating Velappan Vydiar on the road at about 9.00 a. m. with an electric angle iron. pw. 2 was said to be present then at the spot. Yet be did not mention that incident in Ext. D6 first information. But in evidence pw. 22. The incident was started by the 7th accused beating Velappan Vydiar on the road at about 9.00 a. m. with an electric angle iron. pw. 2 was said to be present then at the spot. Yet be did not mention that incident in Ext. D6 first information. But in evidence pw. 2 stated that the 7th accused picked up an iron rod at the spot to beat Velappan Vydiar. In Ext. D4 complaint pw. 1 also stated that an iron rod was used for beating him at the road. The other witnesses who spoke about the road incident stated that the iron rod was picked up from the road, while pw. 1 stated that it was taken out of an adjacent shop-It is difficult to rely upon the whims and fancies of these witnesses to prove that any such occurrence would have taken place at about 9.00 a. m. The prosecution case unfolded in Court showed that while pws. 1, 2 and 14 and deceased Velappan Vydiar were sitting in the verandah of the house of pw. 2, some people collected at the premises of the mill adjacent to the house, armed with sticks and iron rods. While so; accused 11 and 12 came to the premises of the mill and exhorted the persons who collected there to attack the persons who were sitting in the varandah. Then the crowd moved to the house of pw. 2 and asked him to deliver the deceased Velappan Vydiar and pw. 1 to them. When pw, 2 refused, they broke open the doors of the house and got inside the room within which pws. 1 and 14 and Velappan Vydiar took refuge. pw. 14, however, got up to the loft of the room and sat there watching the incident when he saw pw, 1 and Velappan Vydiar being beaten in the room with sticks and iron rods. Thereafter, pw. 1 and Velappan Vydiar were dragged to the verandah, therefrom to the court-yard and then pw. 1 was dragged to the mill gate while Velappan Vydiar was dragged to the compound of one Valli. Leaving them there the accused persons went away. pw. 14 saw the beating inside the house sitting on the loft. There is serious doubt as to whether any such incident took place in the house or outside. 1 was dragged to the mill gate while Velappan Vydiar was dragged to the compound of one Valli. Leaving them there the accused persons went away. pw. 14 saw the beating inside the house sitting on the loft. There is serious doubt as to whether any such incident took place in the house or outside. The case of some damage and destruction caused to the house of pw. 2 as spoken to by pws. 2 and 6 and others was not in conformity with what had been observed in Ext. D5, scene mahazar, which was prepared by Cw. 1 Inspector. The observation mahazar was inconsistent with the other evidence. Cw. 1 stated in Ext. D5 scene mahazar that some rice and paddy were seen scattered in the room. He had also seen some bricks and stone pieces lying there but he did not notice any blood mark anywhere in the room or outside. The evidence of pws. 2 and 6 was that there was blood-stains within the room as well as in the verandah and court-yard of the house. But blood was seen only in the verandah of Valli's house which was in the vicinity. The injured Velappan Vydiar was picked up from the verandah of that house after the incident. He was found to be lying in the verandah of that house. The existence of bloodstains in the verandah of Valli's house could therefore be explained, but there was no indication that there had been any such bloodstains in the house of pw. 2, much less, in the court-yard. Every witness who had occasion to see the beating on the head and other parts of the body of Velappan Vydiar stated that blood was oozing out of the wounds, and therefore there was every reason to have bloodstains left in the room as well as in the verandah and the court-yard. The evidence was that both pw. 1 and Velappan Vydiar had been dragged from the room to the verandah from verandah to the court-yard and therefrom to the premises of Valli's house as well as the mill. The explanation of pws. 2 and 6 was that the wife of pw. 2, after she came back to the house at about 7.00 p.m., collected the scattered rice and paddy from the room and stocked them in one corner of the room. The explanation of pws. 2 and 6 was that the wife of pw. 2, after she came back to the house at about 7.00 p.m., collected the scattered rice and paddy from the room and stocked them in one corner of the room. She was also said to have smeared the floor with cow-dung. This version of pws. 2 and 6 did not get any support in Ext. D5 scene mahazar. The evidence of these witnesses that the occurrence took place in the manner alleged by the prosecution within the room or outside could not therefore be accepted. 23. The case of the prosecution was that the investigation was proper, whereas the case of pw. 1, the private complainant, was that the police did not conduct a proper or just investigation of the case. pw. 26, Head Constable, who had occasion to visit the spot at about 3.00 p.m. on the date of the incident had been examined only in the police charge case and not in the private complaint case. The effect of his evidence could not be assessed in the private complaint case as the accused persons had no chance to cross-examine him in that case. The accused were concerned to discredit the evidence of the witnesses by drawing their attention to the statements they made during the police investigation. They did not therefore get any chance to establish that the investigation was conducted on proper lines. Any way, pw. 1 was not able to establish that police investigation was not just or proper. 24. pw. 2 named only six persons as the accused in the case in Ext. D6 first information. He knew the names of other accused persons. He had no explanation why their names were suppressed when he gave the first information. pw. 3. the son of pw. 2, did not mention the names of accused 11, 12, 15 and 16 during the investigation. pw. 5 did not mention the names of accused 11 and 12. pw. 8 stated that there were 20 persons in all to attack the house of pw. 2 pw. 7 raised the number to 25. pw. 14 mentioned that those persons came out in two groups. That was not the evidence of other witnesses. pw. 14 stated to the police that there were 40 persons in all. The attack on pw. pw. 8 stated that there were 20 persons in all to attack the house of pw. 2 pw. 7 raised the number to 25. pw. 14 mentioned that those persons came out in two groups. That was not the evidence of other witnesses. pw. 14 stated to the police that there were 40 persons in all. The attack on pw. 1 and Velappan Vydiar as revealed from the evidence was contrary to the version in Ext. D6. It is impossible to reconcile these two versions. 25. The evidence of pw. 1 was interested as he was the injured person. pw. 14 was said to have witnessed the incident sitting on the loft. He had no case when he was questioned during the inquest that he saw the incident sitting on the loft. There he stated that he came to the scene after the incident began, and he had no case that he was in the room during the incident. He gave evidence only as to the incident which occurred outside the house. When the Head Constable came at the spot at 3.00 p.m. he was said to have got out of the loft and accompanied him in his jeep. This version was sought to be corroborated by pw, 9. But pw. 9 stated that pw. 14 joined the Head Constable at Kanjani later. That pw. 14 had been questioned during the inquest was proved by Cw. 1 who held the inquest over the dead body. Cw. 2 verified the investigation on re-questioning pw. 14. The conduct of pw. 14 showed to what extent he was prepared to play a double game to support the prosecution. The attempt of pws. 13 and 14 filing petitions later before the District Magistrate for getting their statements recorded for purposes of investigation was an after-thought to cook up evidence for the prosecution. If pws. 13 and 14 had actually seen the occurrence they were likely to have informed the authorities without delay soon after the incident. Their evidence could not therefore be relied upon. 26. pws. 2, 3 and 6 did not tell the police constables when they arrived at the spot at 5.00 p.m., on the same day that any such incident had taken place at the residence of pw. 2. Neither did they point out the damage to the house. Their evidence could not therefore be relied upon. 26. pws. 2, 3 and 6 did not tell the police constables when they arrived at the spot at 5.00 p.m., on the same day that any such incident had taken place at the residence of pw. 2. Neither did they point out the damage to the house. It was established that the damage to the house was inconsistent with the statement in Ext. D5 as well as the evidence of pws. 2, 3 and 6. There was reason to suspect that the alleged damage to the house was purposely caused to make out a case against the accused persons. 27. The evidence was that pw. 1 was beaten with iron rod and sticks. But the witnesses had no case that he sustained any external injury. When he was examined by pw. 15, Asst. Surgeon, soon after the incident, no external injury was noticed on his person. After 8 5 1969 when he was examined at the hospital, a fracture of the lower end of his thigh bone above the knee was noticed. But he never complained of any pain on 20 4 1969 or later on any part of his body, much less at the site of the fracture. It could not therefore be said that he sustained any such injury during the incident. Similarly the witnesses stated that four or five persons dragged Velappan Vydiar and pw 1 from place to place until they were left one at the mill premises and the other in the compound of one Valli. No corresponding injuries had been found either on pw. 1 or Velappan Vydiar on account of the dragging through the rough surface of the ground. Ext. P3 wound certificate showed only eight injuries on Velappan Vydiar. Of those injuries injuries Nos. 1 and 6 were lacerated wounds, injuries Nos. 2 and 3 were fractures of the bone, injuries Nos. 4, 5 and 8 were contusions and injury No. 7 was an abrasion of 1/2'' x 1/2" on the medial aspect of the left knee. The injuries in Ext. P2 post-mortem certificate showed the number of injuries as ten, of which some were surgical injuries If there had been dragging it was likely that both Velappan Vydiar and Pw. 4, 5 and 8 were contusions and injury No. 7 was an abrasion of 1/2'' x 1/2" on the medial aspect of the left knee. The injuries in Ext. P2 post-mortem certificate showed the number of injuries as ten, of which some were surgical injuries If there had been dragging it was likely that both Velappan Vydiar and Pw. 1 would have sustained very many abrasions of different types It is also significant to note that in spite of the fractures of two ribs on the persons of Velappan Vydiar there were no external injuries to connect the fracture. Neither was there any evidence that any of the internal organs of Velappan Vydiar had been cut or damaged. It was true that the brain was congested probably on account of the lacerated wound on the frontal aspect of the skull. Yet there was no fracture on the skull. The cause of death was asphyxia due to haemorrhage in the pleural cavity as a result of the injuries on the chest wall. 10 oz of clotted blood was discovered on the left side of the pleural cavity and no blood on the right side. There was no evidence much less any indication from the nature of the injuries that any injury found on deceased Velappan Vydiar was necessarily fatal or sufficient in the ordinary course of nature to cause death. Of course the gravity of the injury may be a circumstance to determine the nature of the offence. But the nature of the injuries in this case was important to decide as to whether those injuries could have been caused by the accused persons during the incident as alleged by the prosecution. One would have expected Velappan Vydiar and pw. 1 to have been crushed to death at the spot on account of the ferocious beating with stichs and iron-rods as attributed to the accused persons if they fell on his person. But in spite of such beating Velappan Vydiar sustained only eight injuries as described in Ext. P3 and ten injuries as in Ext. P2. pw. 1 had no external injuries when he was examined soon after the incident (vide Ext. P4). The prosecution case from the beginning to the end was in serious doubt. 28. But in spite of such beating Velappan Vydiar sustained only eight injuries as described in Ext. P3 and ten injuries as in Ext. P2. pw. 1 had no external injuries when he was examined soon after the incident (vide Ext. P4). The prosecution case from the beginning to the end was in serious doubt. 28. The learned Additional Sessions Judge considered the evidence in the correct perspective and came to the conclusion that the prosecution as well as the complainant failed to make out a case beyond a reasonable doubt against these accused persons. On a reappraisal of the entire evidence the same conclusion alone is possible in the case. Nothing has been brought to our notice at the hearing of the appeals as may justify interference with the acquittal. The conclusion therefore is that the appeals one by the complainant and the other by the State against the acquittal of the accused persons in both cases are liable to be dismissed. 29. Accordingly, the two appeals are dismissed. Narayana Pillai, J. I agree and out of respect for the admirable argument from the bar and the assistance which it has given may add the following: The rule of law that a man should not be twice vexed for one and the same cause is applicable not only to civil cases but to criminal cases as well. 14 accused persons are common to both the cases here. They have been committed and tried twice for the same offences involved in the same transaction and acquitted twice. There is nothing unconstitutional in it in that the words "prosecuted and punished" in Art.20(2) of the Constitution which enjoins that no person shall be prosecuted and punished for the same offence more than once, cannot be read disjunctively and as such the Article bars 'a second prosecution only where the accused has been both prosecuted and punished for the same offence previously and there is nothing illegal in it in that the same principle of interpretation applies to S.403 of the Criminal Procedure Code which provides that a person who has once been tried for an offence and convicted or acquitted of such offence shall not be tried again for the same offence when such conviction or acquittal remains in force and the two trials here were held simultaneously and not consecutively. But there is a tinge of barbarity in it and that could have been avoided at several stages. 2. After treating the two cases as separate and independent, witnesses common to both have been examined in one case and instead of examining them again in the other copies of their depositions in the case in which they were examined have been used as a substitute for the same in the other. 3. The relevant provisions regarding the procedure to be adopted in such cases can now be considered. No criminal proceeding can be deemed to have been instituted until the Magistrate has taken cognizance of the offence under one or the other of the clauses in S.190(1) of the Criminal Procedure Code. S.190(1) reads: "190. (1) Except as hereinafter provided any Presidency Magistrate, District Magistrate or Sub-Divisional Magistrate, and any other Magistrate specially empowered in this behalf, may take cognizance of any offence (a) upon receiving a complaint of facts which constitute such offence; (b) upon report in writing of such facts made by any police officer; (c) upon information received from any person other than a police officer, or upon his own knowledge or suspicion, that such offence has been committed." Chapter XVIII of the Code which provides for preliminary enquiries has prescribed different procedures for proceedings instituted on Police report and other proceedings. While S.207 A of the Code prescribes the procedure to be adopted in proceedings instituted on police report S.208 to 213 prescribe the procedure in the other proceedings. There is great difference in the procedures in the two types of proceedings at the stage of preliminary enquiry. After commitment at the stage of trial the procedure for the two types of cases is the same. At the trial irrespective of the question whether the proceeding is one instituted on police report or otherwise all prosecutions have under S.270 of the Code to be conducted by the Public Prosecutor. That is as it should be because in cases exclusively triable by Court of Session or High Court which involve serious crimes prosecution should not be allowed to be in the hands of private agency. 4. With the above background let us now turn to the important decisions on the matter. Bhimappa Bassappa Bhu Sannavar v. Laxman Shivarayappa Samagouda (AIR. 1970 SC. 1153), Khetra Basi Samal v. The State of Orissa (1970 SC. 4. With the above background let us now turn to the important decisions on the matter. Bhimappa Bassappa Bhu Sannavar v. Laxman Shivarayappa Samagouda (AIR. 1970 SC. 1153), Khetra Basi Samal v. The State of Orissa (1970 SC. 272) and Raghubans Dubey v. State of Bihar (1967 SC. 1167) are decisions of the Supreme Court. 5. In Bhimappa Bassappa Bhu Sannavar v. Laxman Shivarayappan Samagouda (AlR. 1970 SC. 1153) the offence complained of was mischief by fire punishable under S.436 of the IPC. and the police after investigation submitted a charge-sheet against respondents 1 and 2. Not satisfied with the police charge sheet the owner of the building which was destroyed by fire filed a complaint implicating in it the third respondent also. The Magistrate enquired into the two cases together and finding a prima facie case established committed the three, the first two respondents and the third respondent separately to the Court of Session. The two cases were numbered in the Sessions Court separately. The respondents were finally acquitted. The appellant applied to the High Court for special leave to appeal against the acquittal of the three respondents. That was dismissed on the ground that it was the State that had prosecuted the respondent in the Sessions Court. It was the correctness of that order that was challenged before the Supreme Court. In that case although the two cases in the Magistrate's Court were tried together they were registered under their own numbers and committed separately. In the Sessions Court also they were registered separately and they bore different numbers. As the third respondent was a party only in the case started on the private complaint the Supreme Court after holding that the appellant was entitled to ask for special leave to appeal as against the third respondent sent back the matter to the High Court for consideration whether the appellant could ask for leave against the other two respondents also. The Supreme Court observed there: "Now there can be no manner of doubt that one of the cases was instituted on the report of the police officer and the other on the complaint of the complainant. The Supreme Court observed there: "Now there can be no manner of doubt that one of the cases was instituted on the report of the police officer and the other on the complaint of the complainant. There can be no question of merger because the identity of the two cases is maintained right up to the end of the Sessions trial." In the case before their Lordships as cognizance of the same offence happened to be taken twice, the integrity of each case was kept separate till the very end and the third respondent was a party only in the case started on the basis of the private complaint, the complainant was held to be competent to apply for special leave to appeal as against him. There is nothing in that decision to show that if a Magistrate takes cognizance of an offence on a police report and thereafter a private complaint is filed implicating in it additional persons he is bound to take cognizance of the same offence again or that after taking cognizance of the offence on the basis of the police report he cannot on receipt of the private complain! make additional persons accused in the case he has taken upon the police report or that one charge and one trial would not be sufficient if there are two or more commitment orders in respect of the same offences committed in the course of the same transaction. 6. In Khetra Basi Samal v. The State of Orissa (1970 S.C. 272) in respect of certain offences punishable under S.147, 323 and 325 of the IPC. in the first information report 10 persons were stated to have committed the offences. More than six weeks thereafter the injured person, Jagabandhu Behera, filed a complaint before the Magistrate in which he named 31 persons including the 10 persons who had been implicated in the first information report as his assailants. The Magistrate took cognizance of the offences. Since accused 1 to 10 had already been sent up for trial based on the police report the Magistrate took up a separate case against accused 11 to 31 alone based on the complaint of Jagabandhu Behera. At Jagabandhu Behera's request the case started on the police report and that started on the complaint were clubbed together. Thereafter by a common judgment the Magistrate acquitted all the accused. At Jagabandhu Behera's request the case started on the police report and that started on the complaint were clubbed together. Thereafter by a common judgment the Magistrate acquitted all the accused. Application filed by Jagabandhu under S.417 (3) of the Code for special leave to appeal was allowed by the High Court. Ultimately the High Court allowed the appeal and convicted and sentenced some of those among accused 1 to 10. When they appealed to the Supreme Court their convictions and sentences were set aside holding that the clubbing of the two cases was only for the convenience of the trial that inspite of the clubbing the two cases retained their individuality and that as accused 1 to 10 were not parties to the case started on the complaint of Jagabandhu Behera appeal filed by him against their acquittal was incompetent' In spite of the fact that the accused in the two cases were different it was held there that as the offences were committed in the course of the same transaction the two cases could be clubbed together for the purpose of trial and that such a course was clearly permissible under S.239 of the Criminal Procedure Code. The Supreme Court said: "There were two separate cases of which cognizance was taken separately. One was started on the basis of a police report while the other was on the complaint of Jagabandbu Behera. As the accused in both the cases were said to have committed the offences in the course of the same transaction, the cases were clubbed together for the purpose of trial and such a course was clearly permissible under S.239, Cr. P.C." 7. In Raghubans Dsbey v. State of Bihar (1967 S.C. 1671) the appellant was one of the 15 persons mentioned as assailants in the first information statement. As it was found during investigation that he had not taken part in the occurrence his name was not included as an accused in the final report filed under S.173 of the Code. On receipt of the final report cognizance was taken by the Magistrate on April 5, 1961 of the offence. Thereafter on April 11, 1961 a petition was filed before him praying that the appellant may be summoned. During examination of two witnesses it came out that the appellant had also taken part in the occurrence. On receipt of the final report cognizance was taken by the Magistrate on April 5, 1961 of the offence. Thereafter on April 11, 1961 a petition was filed before him praying that the appellant may be summoned. During examination of two witnesses it came out that the appellant had also taken part in the occurrence. Then the person who lodged the first information requested the Magistrate to summon the appellant also for trial as prayed for in the petition filed on April, 11, 1961 and the Magistrate ordered warrant to be issued to the appellant. The correctness of that order was challenged in revision before the Sessions Judge and the High Court but without success. It was thereafter that the Supreme Court was moved in the matter. The Supreme Court dismissed the appeal. It was argued in that case that so far as the appellant was concerned as his name had not been included in the police report on the basis of which cognizance of the offence was taken by the Magistrate it was not the procedure prescribed in proceedings instituted on a police report that had to be applied. This argument was repelled holding that the cognizance taken was of an offence and not the offenders, that cognizance could be taken even when the offenders were unknown and that once cognizance of an offence was taken it was the duty of the Magistrate to find out who the real offenders were. The Court said: "On the facts of this ease it is quite clear that the case does not fall within S.190(1) (a) or S.190(1) (c) because the Sub-Divisional Magistrate had taken cognizance of the offence on April 5, 1961, But. says Mr. Latifi, that though it is true that cognizance was taken on April 5, 1961 the cognizance was taken of the offence as far as other accused were concerted and not as far as the appellant was concerned; as a matter of fact that appellant had been rightly or wrongly discharged. says Mr. Latifi, that though it is true that cognizance was taken on April 5, 1961 the cognizance was taken of the offence as far as other accused were concerted and not as far as the appellant was concerned; as a matter of fact that appellant had been rightly or wrongly discharged. In our opinion, once cognizance has been taken by the Magistrate, he takes cognizance of an offence and not the offenders; once he takes cognizance of an offence it is his duty to find out who the offenders really are and once he comes to the conclusion that apart from the persons sent up by the police some other persons are involved, it is his duty to proceed against those persons. The summoning of the additional accused is part of the proceeding initiated by his taking cognizance of an offence. As pointed out by this Court in 1965 1 SCR. 269: (AIR. 1965 SC. 1185), the term "complaint" would include allegations made against persons unknown. If a Magistrate takes cognizance under S.190 (1) (a) on the basis of a complaint of facts he would take cognizance and a proceeding would be instituted even though persons who had committed the offence were not known at that time. The same position prevails, in our view, under S.190 (1) (b)." 8. In The State v Ganesha (AIR. 1968 Rajasthan 116) in the first information statement three persons were implicated. Charge-sheet was filed by the police only against two of them leaving the third. The Magistrate took cognizance of the offence on the basis of the police report. Thereafter a private complaint was filed against the third person left out. The Magistrate after hearing arguments instead of taking cognizance of the offence again based on the complaint summoned the third person left out as an accused in the very proceeding which he had started on the basis of the charge-sheet filed by the Police following the decision of the Supreme Court in Raghubans Dubey v. State of Bihar (1967 SC. 1167). Their Lordships of the Rajasthan High Court held that the procedure adopted by the Magistrate was right. 9. In re. Mahalinga Thevar (AIR. 1167). Their Lordships of the Rajasthan High Court held that the procedure adopted by the Magistrate was right. 9. In re. Mahalinga Thevar (AIR. 1959 Madras 521) was a case where there were two preliminary enquiries in respect of the same incident, one instituted on a Police report against three persons and the other on a private complaint against those three persons and another. The question was whether they could be clubbed together. It was held that that could not be done, that the two cases had to be enquired into separately and that the procedure to be followed in such cases was that laid down in case and counter. The learned Judge of the Madras High Court who decided that case pointed out that there was a circular issued by two Honourable Judges of that Court in which it was stated that in such cases enquiries had to be conducted separately and that the reason for that was that under the amended Code the procedures to be adopted in regard to preliminary enquiries to be conducted on police report and on private complaints were widely different that it was not possible to say which of them was more favourable to the accused and that it would certainly be open to the accused who had been committed and later on convicted under one procedure to argue that the other procedure should have been adopted and that if it had been adopted he would not have been prejudiced and would have secured a discharge and later on an acquittal. The procedure suggested in the circular was approved in that decision. 10. In Yerra Narasimhagari Narasimha Reddi v. The State (AIR. 1961 Andhra Pradesh 304) on the first information given to the police a case was registered and after investigation charge-sheet was filed in Court against 21 accused persons for rioting and for causing the death of one person and injuries to several persons. After preliminary enquiry when the case was ready for committal a complaint was filed by the person who lodged the first information implicating in it not only the 2nd accused persons in the police charge but one more person. After the complaint was filed the 21 accused persons in the case started on the police report were committed. After preliminary enquiry when the case was ready for committal a complaint was filed by the person who lodged the first information implicating in it not only the 2nd accused persons in the police charge but one more person. After the complaint was filed the 21 accused persons in the case started on the police report were committed. Then the complainant applied before the High Court, Andhra Pradesh, for stay of the trial of the Sessions Case until the conclusion of the preliminary enquiry in the case started on the complaint filed by him. Following the decision in re. Mahalinga Thevar (AIR. 1959 Madras 521) that application was dismissed observing that the trial of the Sessions case could not validly be stayed and that there was no justification for joint trial of the two cases as it was neither possible nor desirable. 11. In M. Mohammad Haneef v. K. P. NarasiReddy (AIR. 1969 Andhra Pradesh 206) after the police filed a charge-sheet against certain persons a private complaint was filed adding in it certain persons whose names had been included in the provisional charge-sheet but deleted in the final charge-sheet. On the private complaint the Magistrate took cognizance of the offences only against the additional accused personsiocluded in the complaint and not against the others who continued to be accused in the case started on the final chargesheet submitted by the police. The question was whether on the private complaint the Magistrate was right in refusing to take cognizance of the offences in so far as they related to the persons who were already accused in the case started on the police charge-sheet. It was held by the Andhra Pradesh High Court that the proper course for the Magistrate in such circumstances was to proceed with the two enquiries simultaneously and dispose of both the cases on merits but as by that time the case started on the police charge-sheet had already been committed to the court of Session the proceedings in the Sessions trial were stayed for a short period to enable the Magistrate to proceed with the enquiry based on the private complaint. In case the complaint filed by the petitioner resulted in committal the Sessions Judge was directed to proceed with the trial by clubbing the two cases. Yerra Narasimhagari Narasimha Reddi v. The State (AIR. In case the complaint filed by the petitioner resulted in committal the Sessions Judge was directed to proceed with the trial by clubbing the two cases. Yerra Narasimhagari Narasimha Reddi v. The State (AIR. 1961 Andhra Pradesh 304) was distinguished in that case on the ground that it was a decision based on the facts of that particular case. 12. In K. Perumal v. Chithanathan (AIR. 1965 Madras 142), a decision of the Madras High Court, and Gopal v. State (AIR. 1958 Rajasthan 152),"a decision of the Rajasthan High Court, also the question that specifically arose for consideration was about the procedure to be followed in two cases on the same set of facts, one arising out of a police report and the other on private complaint and one of them involved more or less accused and witnesses than the other, some of them being common to both. As regards the procedure to be followed at the preliminary enquiry it was held in both the decisions that the proper course for the Magistrate was to hold separate enquiries. It was observed as follows in K. Perumal v. Chithanathan (AIR. 1966 Madras 142): "Chapter XVIII of the Code leaves no alternative to the magistrate but to follow the appropriate procedure. In most cases this should present no difficulty; but where, on the same set of facts relating to offences triable by a court of session, there are two cases initiated, one on a police report and the other on a private complaint, one of them involving more or less accused and witnesses than the other, some of the accused and witnesses being common to both, the question arises whether there is any discretion left in the magistrate, at the enquiry stage, to club the two cases and follow one or the other procedure under S.207-A or S.208 of the Code. It seems to us that such a situation is not in the contemplation of Chapter XVIII of the Code. The code does not expressly deal with such a case and provide the procedure to be followed therein. But as S.207 stands, as amended at the moment; the magistrate has no power to club the two cases for the purpose of enquiry. He has to deal with the two cases separately and hold separate enquiries in each of them making at the end separate committal or discharge orders. But as S.207 stands, as amended at the moment; the magistrate has no power to club the two cases for the purpose of enquiry. He has to deal with the two cases separately and hold separate enquiries in each of them making at the end separate committal or discharge orders. That is the procedure the committing Magistrate in this case followed, and we think quite rightly." As regards the circular referred to in, In re Mahalinga Thevar (AIR. 1959 Madras 521) it was observed there that on examination of the relevant records it was found that no such circular had been issued from the Madras High Court. Their Lordships doubted whether the procedure to be followed at the two independent enquiries should take the pattern of the procedure followed in cases and counter and said that there was no warrant for applying a procedure different from that in S.207 of the Criminal Procedure Code. So far as the Sessions Court was concerned the learned Judges observed that one trial would be sufficient in such cases. The learned Judges said: "So far as the Sessions Court is concerned, where there are two committal orders, arising out of a police report and a private complaint, the Code does not enjoin, as far as we can see, different procedures to be followed. Though there is no specific provision in the Code to which our attention has been invited, having regard to the fact that there is only one procedure prescribed and to be followed at sessions trials, there would, in our view, bo no bar to a sessions Judge, before he commences trial, to club the two cases on the basis of the committal records before him, frame suitable charges on the materials available at the time and try all the accused at one trial, provided, of course, the offences forming the subject matter of the charges arose out of the same set of facts and transactions, and provided further that such a procedure does not offend the rules relating to joinder of charges or of accused." 13. Having discussed so far about the possibilities of avoiding two independent preliminary enquiries and trials in respect of offences committed in the course of the same transaction let us now turn to the question of examination of common witnesses In such cases. Having discussed so far about the possibilities of avoiding two independent preliminary enquiries and trials in respect of offences committed in the course of the same transaction let us now turn to the question of examination of common witnesses In such cases. If a Magistrate takes cognizance twice of an offence exclusively triable by a court of Session and two preliminary enquiries and two trials happen to be conducted in respect of the same the two proceedings should be considered as separate and independent in all respects. In such a case as regards common witnesses it would not be sufficient if they are examined in one proceeding alone and copies of their depositions in that proceeding marked as evidence in the other. The relevant statutory provisions regarding it can now be considered. 14. Under S.356 of the Code, the material portion of which reads thus: "356. (1) In all other trials before Courts of Session and Magistrates (other than Presidency Magistrates), and in all inquiries under Chapters XII and XVIII, the evidence of each witness shall be taken down in writing in the language of the Court either by the Magistrate or Sessions Judge with his own hand or from his dictation in open Court, or in his presence and hearing and under his personal direction and superintendence and the evidence so taken down shall be signed by the Magistrate or Sessions Judge and shall form part of the record." in each preliminary enquiry and trial the evidence of each witness shall be taken down in writing and under S.353 of the Code which reads thus: "Except as otherwise expressly provided, all evidence taken under Chapters XVIII, XX, XXI, XXII and XXIII shall be taken in the presence of the accused, or, when his personal attendance is dispensed with, in the presence of his pleader." in each proceeding evidence shall be taken in the presence of the accused. 15. Under S.33 of the Evidence Act, the material portion of which reads thus: "33. 15. Under S.33 of the Evidence Act, the material portion of which reads thus: "33. Evidence given by a witness in a judicial proceeding, or before any person authorised by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stags of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence-, or is kept out of the way by the adverse party, or if his presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable:" proof of unavailability of a witness is a necessary prerequisite for the admission of former deposition. The general rule is that witness must himself appear in court to give viva voce evidence of the facts which he claims to have perceived. This rule applies with all its rigour not only to independent proceedings but also to different stages in the same proceeding. S.33 enacts an exception to that rule. When a witness is alive and available and none of the conditions mentioned in the section is fulfilled, there is no occasion for the application of the section. No doubt recording twice of the same evidence of the same witness in two independent proceedings is cumbrous and needlessly burdensome and results in waste of time but they are not conditions mentioned in S.33 for admitting a former deposition. In a civil case where no question of public policy is involved it may be open to a party to waive the benefit of the provisions of S.33 which are merely for his benefit but in a criminal case even consent on the part of the accused to the admission of evidence which is inadmissible under S.33 cannot make the evidence admissible because an accused can consent to nothing. 16. This matter has also given rise to a great deal of judicial discussion. In Subrayalu Naiddu v. Kailasan Pillai (1935 M.W.N. 645), a decision of the Madras High Court, there were two preliminary enquiries in respect of an offence involved in the same transaction one on the basis of police charge and the other on the basis of the private complaint. In Subrayalu Naiddu v. Kailasan Pillai (1935 M.W.N. 645), a decision of the Madras High Court, there were two preliminary enquiries in respect of an offence involved in the same transaction one on the basis of police charge and the other on the basis of the private complaint. One of them was quashed by Burns J. as it was unnecessary and the quashing was necessary to save waste of Magisterial time. His Lordship said: "I must however observe that there is only one case for inquiry and not two cases. There is no justification whatever for the recording of the evidence twice over. The magistrate cannot commit any of the accused twice; nor can he discharge anybody twice, since there is only one criminal transaction in which they are said to have been engaged." That was a case decided in 1935 long before the amendment of the Criminal Procedure Code and has no application now. After the amendment in 1955 S.207-A has been added and different procedures have been prescribed for preliminary enquiries in cases started on police reports and private complaints. 17. K. K. Umar Hajee In re (AIR. 1923 Madras 32) was a case which arose from Malabar. There the appellant and his father were placed on trial together before Mr. Edgington. After the trial had proceeded for some time it was decided to hold two separate trials. Mr. Edigington then began the trial of the appellant and exhibited the evidence already given at the joint trial. Before the trial of the appellant was concluded Mr. Edgington ceased to be Judge. He was succeeded by Mr. Jackson, who later became a Judge of the Madras High Court. Mr. Jackson decided to hold the trial de novo. He exhibited the depositions of the witnesses in the previous trial without examining them denovo. That procedure was held to be wholly irregular and condemned in no uncertain terms by the Madras High Court. It was further held there that even if the appellant consented to it that could not cure the defect. Later on after Mr. Jackson became a Judge of the Madras High Court His Lordship had to deal with similar situations. His Lordship said in Krishna Pannad v. Emperor (AIR. 1930 Madras 190): "There is no clear law as regards the procedure in counter cases, a defect which the legislature ought to remedy. Later on after Mr. Jackson became a Judge of the Madras High Court His Lordship had to deal with similar situations. His Lordship said in Krishna Pannad v. Emperor (AIR. 1930 Madras 190): "There is no clear law as regards the procedure in counter cases, a defect which the legislature ought to remedy. It is a generally recognized 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. .... ..... .... The only way in which such a procedure can be justified is by setting up a fiction that the case and the counter case are really one; and this fiction should be made a reality by statute. If a Court were empowered to link cases, as they link files in a secretariat there would also be the incidental advantage of a great saving of time. At present in each case the evidence of every witness must be fully recorded, and what pw. 1 says for the prosecution in one case must all be written out again when be repeats it as dw. 1 in the other case." and in Krishnayya Naidu v. Emperor (AIR. 1930 Madras 505): "In a case the depositions given by two witnesses as defence witnesses in one case were filed the consent of both parties when they were examined as prosecution witnesses in the counter case, such a procedure is neither prohibited nor illegal but saves a good deal of time of the court. No prejudice can be said to be caused to the accused. This procedure is justified especially when the depositions were filed with the consent of the parties and when the witnesses were examined in the presence of the accused and sworn to the truth of their previous depositions." 18. In Chainchal Singh v. Emperor (AIR. 1946 PC. 1) as regards use under S.33 of the Evidence Act of prior depositions the Privy Council said: "It is necessary that provision should be made for exceptional cases where it is impossible for the witnesses to be before the Court, and it is only by a statutory provision that this can be achieved. 1946 PC. 1) as regards use under S.33 of the Evidence Act of prior depositions the Privy Council said: "It is necessary that provision should be made for exceptional cases where it is impossible for the witnesses to be before the Court, and it is only by a statutory provision that this can be achieved. But the court must be careful to see that the conditions on which the statute permits previous evidence given by the witness to be read are strictly proved, in a civil case a party can if he chooses waive the proof, but in a criminal case strict proof ought to be given that the witness is incapable of giving evidence... .... ... ... The learned Additional Judge was no doubt largely influenced by counsel for the accused consenting to the evidence being read, but in their Lordships' opinion that does not do away with the necessity of the Court being satisfied by proof." 19. I Siddiq Ali v. Rex (AIR. (37)1950 Allahabad 119) there were three Sessions trials which ran almost simultaneously in the trial court, borne of the witnesses in the three cases happened to be common. The trial Judge brought on record in one Sessions case the statement of a witness recorded in another case instead of examining the witness afresh in each trial. It was held by the Allahabad High Court that evidence recorded before one court if taken verbatim in another court completely vitiated the trial. No doubt that was a case where the Sessions Court consisted of the Judge acting with the aid of assessors and the assessors were different in different cases but that decision applies with equal force to trials held without assessors also. 20. In Sukanraj v. State of Rajasthan (AIR. 1967 Rajasthan 267) in two separate Sessions trials the appellant was convicted, in one case under S.409, 467 and 468 of the IPC. and in the other under S.471 and 477-A of the IPC. Five prosecution witnesses were examined in the second case and copies of their depositions in that case were taken as evidence in the first case. 26 witnesses were examined in the first case and copies of their depositions in that case were taken as evidence in the second case. and in the other under S.471 and 477-A of the IPC. Five prosecution witnesses were examined in the second case and copies of their depositions in that case were taken as evidence in the first case. 26 witnesses were examined in the first case and copies of their depositions in that case were taken as evidence in the second case. As the convictions in both the cases were on such inadmissible evidence which was never recorded by the court in accordance with the provisions of the Criminal Procedure Code relating to the recording of evidence they were set aside by the Rajasthan High Court and retrial was ordered. The following observations there are relevant: ".........the procedure adopted in taking on record the copies of the statements of the witnesses from one case to another and then to treat these copies as evidence is a serious departure from the usual and proper procedure prescribed by the Code of Criminal Procedure. Even if it is assumed for the sake of argument that the accused had given his consent to the adoption of such a novel procedure such a consent, in my opinion cannot give any legal sanctity to this type of evidence which has been brought on record in clear violation of the mandatory provision of the law. It is a well established rule of law that neither the accused nor his counsel can validate by giving his consent anything which is not authorised by law. The procedure adopted by the trial Court to bring the evidence on record is clearly in derogation to the express provision of the law and therefore it is difficult for me to accept the contention of learned Deputy Government Advocate that the defect is curable as no prejudice has been caused to the accused In my opinion the provisions of S.537 of the Code of Criminal Procedure cannot be attracted to cure a defect of procedure which infringes the mandatory requirement of the Code. This violation is clearly an illegality and not an irregularity. Such an illegality vitiates the trial and no amount of consent of the accused or his counsel can cure the illegality. The provisions of the Code of Criminal Procedure contemplate separate trial in each case. It nowhere provides that evidence recorded in one case may be treated (as evidence) in the other case. Such an illegality vitiates the trial and no amount of consent of the accused or his counsel can cure the illegality. The provisions of the Code of Criminal Procedure contemplate separate trial in each case. It nowhere provides that evidence recorded in one case may be treated (as evidence) in the other case. The general rule in the case of criminal trials is that there should be a separate trial with respect to each distinct offence. The object evidently is that the attention of the trial Court should be directed to the evidence relating to the charge under inquiry and irrelevant matter should be excluded. This object is not achieved by adopting such procedure but defeated by placing on the record mere copies of the statements of witnesses recorded during the course of a trial relating to another charge." Whatever doubt there may have been previously about the recording of evidence in such cases it has now been cleared by the decision of the Supreme Court in Banwari v. State of Uttar Pradesh (AIR. 1962 SC. 1198). There the Sessions Judge who tried three different cases on the basis of three commitment orders recorded evidence only in one case, disposed of the three cases by a common judgment and convicted the accused in all the three cases It was contended that the trial was invalid. The Supreme Court repelled it on the ground that although there were separate committal orders the Sessions Judge was competent to try at one trial the offences involved in all the three cases. But the general rule was laid down there that if two cases could not be amalgamated recording of evidence in each case had to be done separately. The Court said: "The procedure of recording evidence with respect to the offences which were the subject of different Sessions Trials in the proceedings of one Sessions Trial alone, is not certainly warranted by the provisions of the Code of Criminal Procedure. Every separate trial must proceed separately, with the result that every proceeding, including the recording of evidence, in each trial should be separate." 22. Excluding from purview the procedure in cross cases or case and counter in which different considerations prevail, the conclusion can now be stated thus. Every criminal proceeding is started by the Magistrate taking cognizance of the offence under S.190 (1) of the Code. Excluding from purview the procedure in cross cases or case and counter in which different considerations prevail, the conclusion can now be stated thus. Every criminal proceeding is started by the Magistrate taking cognizance of the offence under S.190 (1) of the Code. He can be said to have taken cognizance of it only when he has applied his mind to the allegations or facts regarding the commission of it in order to proceed in a particular way as indicated in the subsequent provisions of Chapter XV in which S.190 appears. As the three grounds mentioned in S.190 (1) are not mutually exclusive it is open to him to take cognizance of an offence on one or more of such grounds. Piecemeal cognizance of a single offence or a series of offences committed in the course of the same transaction is not warranted by the provisions of the Code. Instances are not wanting where after a Magistrate has taken cognizance of an offence on the basis of a Police report interested parties have filed private complaints to break up the essential integrity of the case. Magistrates should be alert to it. Taking cognizance is of offences and not offenders. That being the true position a Magistrate can take cognizance of an offence even if the offenders are not known at the time. If offences are committed in the course of the same transaction and he has already taken cognizance of the same on one of the grounds mentioned in S.190 (1) it is unnecessary for him to take cognizance, of the same again on one or more of the other grounds. After he has taken cognizance of an offence if it comes to his knowledge that more persons than those implicated already are also involved in the case he can add them to the case he has already taken up. As regards offences exclusively triable by a court of Session if they were committed, in the course of the same transaction they can be tried at one trial if warranted by S.234 to 239 of the Code, which deal with joinder of charges and accused. At the time of taking cognizance of such offences Magistrate should be watchful that they take cognizance of the same only once. If they do that all the anomalies which later on occur can be avoided. At the time of taking cognizance of such offences Magistrate should be watchful that they take cognizance of the same only once. If they do that all the anomalies which later on occur can be avoided. There would then be no two preliminary enquiries and trials. Different procedures are prescribed in preliminary enquiries for cases started on police report and private complaint. That should not be taken to mean that if there is a police report and a private complaint in respect of the same offences which can be tried at one trial the Magistrate should necessarily take cognizance of them twice and conduct two proceedings. On the other hand what it means is only that if the case is started on the police report the procedure prescribed for it and if the case is started on private complaint the procedure prescribed for it should be followed. That does not in any way affect the discretion vested in the Magistrate to take cognizance of the same offences only once. And to use discretion is an important power. Magistrates should realise that when they take cognizance of an offence they are discharging a judicial function. Instead of mechanically taking cognizance of the same offences twice on police report and private complaint they should when they receive a police report or private complaint consider whether they have already taken cognizance of the same offences and whether they cannot be tried at one trial. It is high time that the prevailing practice of Magistrates indiscriminately taking cognizance more than once of the same offences which can be tried at one trial is put a stop to. If a Magistrate takes cognizance of the same offences twice on the basis of the police report and the private complaint two preliminary enquiries have necessarily to be conducted separately because the procedures prescribed for them are different. But there is no such handicap for the Sessions Judge. There is only one procedure prescribed for Sessions trials and in all such trials prosecution is always conducted by the Public Prosecutor. Even if there ate several committal orders with regard to distinct offences the Sessions Judge is competent to club them, frame only one charge and try all those offences and all the accused at one trial if joint trial of those offences and the accused is warranted by S.234 to 239 of the Code. Even if there ate several committal orders with regard to distinct offences the Sessions Judge is competent to club them, frame only one charge and try all those offences and all the accused at one trial if joint trial of those offences and the accused is warranted by S.234 to 239 of the Code. Therefore even if the Magistrate acting under S.190 (1) has not discharged his functions properly there is still an opportunity for the Sessions Judge to prevent two trials. Sessions Judges should dispel themselves of the notion that every committal order should be followed by a separate trial and use their discretion properly in such cases, If they do that there would be no occasion at all for an accused to face two trials and to be acquitted twice in respect of the same offence. If the Sessions Judge after use of discretion decides that there should be two separate and independent trials instead of one he would not be justified in examining common witnesses in one case alone and using copies of their depositions in the other. If two trials are held common witnesses have to be examined in both the cases unless one or the other of the conditions mentioned in S.33 of the Evidence Act is satisfied. Use of evidence in violation of the provisions of S.353 and 356 of the Code and S.33 of the Evidence Act is illegal. If in spite of all that the Sessions Judge resorts to examination of the common witnesses only in one case and disposes of both the cases on that evidence his judgment can be supported only on the ground that his previous view that two trials were necessary was wrong and that as one trial alone was sufficient the examination of the witnesses once was sufficient.