Judgment :- All the five petitioners are accused in two criminal cases, one instituted on police report (Annexure-I) and another instituted on a complaint filed by the first respondent (Annexure-II). The incident which gave rise to both cases was the same. Learned magistrate, who took the complaint case on file when the police case was pending in his court, has now ordered that both cases "would be tried together, but not consolidated". The accused are aggrieved by the said order. Hence they have come up with this petition to quash it. 2. Learned magistrate referred to the decision of the Supreme Court inHarjinder Singh v. State of Punjab (AIR 1985 SC 404) and the decision of this Court in Mani v. Swaminathan (1986 KLT 170) to support the course of procedure which he has adopted with the two cases. 3. Facts alleged in both cases are substantially the same, the persons arrayed as accused in both cases are the same and the offences mentioned in both cases are also the same. According to the learned counsel for the petitioners, unless the two cases are tried together as envisaged in S.223 of the Code of Criminal Procedure (for short 'the Code') prejudice would be caused to the accused besides the hardships which they have to bear in facing two criminal prosecutions on the same incident. Referred to 4. Under S.223 of the Code, persons accused of the same offence or even different offences "committed in the course of the same transaction" can be charged and tried together. When the Code permits all persons accused of the same or different offences committed in the course of "the same transaction" it is useful to know whether the offences alleged in a case would have been committed in the course of the same transaction. The expression " same transaction" is not defined in the Code and the Supreme Court has pointed out in State of A.P. v. Cheermalapati Ganeswara Rao (1964 (3) SCR 297) that it would be difficult to define precisely what that expression means. Their Lordships further stated thus: "Whether a transaction can be regarded as the same would necessarily depend upon the particular facts of each case and it seems to us to be a difficult task to undertake a definition of that which legislature has deliberately left undefined. Their Lordships further stated thus: "Whether a transaction can be regarded as the same would necessarily depend upon the particular facts of each case and it seems to us to be a difficult task to undertake a definition of that which legislature has deliberately left undefined. We have not come across a single decision of any court which has embarked upon the difficult task of defining the expression. But it is generally thought that where there is proximity of time or place or unity of purpose and design or continuity of action in respect of a series of acts, it may be possible to infer that they form part of the same transaction". 5. When S.223 says that such cases "may be charged and tried together" what is contemplated is joint trial of such cases. The practical method to achieve the same is the following: There need be only one trial for both cases. One of the cases can be treated as the main case. All witnesses can be examined and all documents can be marked in that case. Examination of all accused as provided in S.313 of the Code can also be held in that case. All such evidence can be treated as evidence adduced in the other case also. Both cases can be disposed of by a common judgment. If the aforesaid procedure is adopted there is no consolidation of the two cases together. If two cases are consolidated with each other identity of at lease one case would be lost. But in a joint trial, as indicated above, identity of both cases are kept alive though separate evidence is not collected in both cases. 6. It is in the discretion of the court to decide whether two cases need be jointly tried. The commencing words in S.223 of the Code are: "May be charged and tried together". From those words what can be discerned is that a discretion is conferred on the court to decide whether any particular two or more cases need joint trial if offences have been committed in the course of the same transaction. If the cases arc substantially different from each other, though the same incident is the basis for both cases, court may have to bear in mind the possibilities of such trial causing prejudice to the defence. If the cases arc substantially different from each other, though the same incident is the basis for both cases, court may have to bear in mind the possibilities of such trial causing prejudice to the defence. The real test is whether prejudice would be caused to the accused in such joint trial. Proviso to S.223 indicates that even cases not falling under any of the categories enumerated in the section can nevertheless be jointly tried if the accused would express the desire in writing to have such joint trial and if no prejudice would be caused to the accused. S.218(1) of the Code directs that every charge for different offences should be tried separately. But there also an option is given to the accused to request the court to conduct a joint trial. When accused makes a request for joint trial the court can presume that no prejudice would be caused to him by adopting that course. 7. Even the procedure prescribed in S.210 of the Code is intended to achieve the above purpose, though it refers to a different situation. Under the said section when a complaint case is pending while police investigation is in progress in relation to the offence which is subject matter of the complaint case, the magistrate is to wait until final report is laid by the police. After the final report is laid "the magistrate shall inquire into or try together the complaint case and the case arising out of the police report" as if both the cases were instituted on a police report. No doubt, the procedure envisaged in S.210 of the Code is consolidation of the two cases and not merely a joint trial. S.210(3) of the Code permits the magistrate to make a departure if the police report does not relate to any accused in the complaint case in which event the magistrate is free to proceed in accordance with the provisions of the Code. 8. The Supreme Court has observed in State of A.P. v. Cheemalapati Ganeswara Rao (cited supra) that the object of enacting S.223 (S.239 of the old Code) was to avoid multiplicity of trials and the only limitation which could properly be placed on the trial of several persons for the same kind of or different offences would be considerations of justice and fairness. 9. 9. In Harjinder Singh v. State of Punjab (AIR 1985 SC 404) consolidation of two cases was not permitted though they related to the same transaction. One was a police charge sheeted case and the other was a private complaint. Both cases were committed to the same Court of Sessions. Learned judges of the Supreme Court, on the facts and circumstances of that particular case, fell that the two cases should not be consolidated and evidence should be recorded separately in both cases. The reason for adopting such a course in those cases was that the prosecution version in the police case and the complaint "are materially different, contradictory and mutually exclusive." I don't think that the procedure adopted by the Supreme Court on the facts of the said case is meant to be a procedure of uniform application whenever there is a police case and a complaint case on the same transaction. 10. Padmanabhan, J. has in Mani v. Swaminathan (1986 KLT170) disapproved the procedure adopted by a magistrate in trying two cases together by clubbing them into a single case. Learned Judge pointed out that S.210 of the Code was not attracted to the situation in the said cases. There were three accused in the complaint case whereas there was only one accused in the police charge sheeted case in Mani v. Swaminathan. Offences were also not common in both cases, though both cases arose from the same transaction. It was in the peculiar circumstances of that case a different procedure was resorted to. Hence the said procedure need not be followed in the present case. This Criminal Miscellaneous Case is disposed of by directing the magistrate to conduct a joint trial of both cases in the manner indicated above. Criminal Miscellaneous Case is disposed of in the above terms.