G. PATRI BASAVANA GOUD, J. ( 1 ) ON 9-12-1990, one Ibrahim lodged a complaint with the Belthangady Police, alleging in brief thus: after returning from work, at about 7. 30 p. m. , he was standing by the side of the road in front of his house at Gurumpakal. His neighbour latief also was standing by the side of the road. At that time, Ramesh, purandara, Kariya," Venugopal along with others came there. Ramesh was holding a stick. With that, he hit him on his left shoulder and on the head. Then, that group went to the place where Latief was standing and hit him with stick and chain and he i. e. , Ibrahim and Latief then ran home. Both himself and Latief had sustained injuries on account of that assault. On the said complaint, a case was registered at Crime No. 221 of 1990 of Belthangady Police Station, same was investigated into, and b-report was filed. Then, of the two injured, present petitioner-Abdul latief filed a complaint under Section 200 of the Cr. P. C. before the learned Judicial Magistrate of the First Class, Bantawal, against Ramesh poojary and eight others respondents 2 to 9 herein. What was alleged therein was to the same effect as had been done in the complaint referred to above. Cognizance was taken by the learned Magistrate, sworn statements of the complainant and witness Ibrahim were recorded, and on the learned Magistrate finding sufficient ground to proceed, he directed issuing of process against all the accused for offences punishable under Sections 143, 148, 341, 324 read with Section 149 of the IPC, at C. C. No. 2925 of 1992. ( 2 ) ON the very day Ibrahim lodged complaint with Belthangady Police as referred to at the outset, i. e. , on 9-12-1990, Ramesh Poojary also lodged complaint with the said police, which came to be registered at Crime No. 220 of 1990 of the said Police Station. The said Ramesh Poojary alleged in brief thus : at about 7. 30 p. m. on that day, they got down from the bus from bantawal, and were proceeding on the road by the side of the above said ibrahim's house. The said Ramesh Poojary alleged in brief thus : at about 7. 30 p. m. on that day, they got down from the bus from bantawal, and were proceeding on the road by the side of the above said ibrahim's house. At that time, Ibrahim and Latief referred to above, as also Rafeeq Khader, Abdul Rehman, Iqbal, Hameed, Mohammed bhashir, Mohammed Razaq and others made fun of them and when they questioned as to why they were doing so, they restrained them from going further, and he, i. e. , Ramesh was pushed to the ground by three of them and he was hit with stone and an attempt made on his life. This was investigated into, and on completion of the investigation, police submitted charge-sheet, alleging commission of offences punishable under Sections 143, 147, 148, 341, 324 and 307 read with Section 149 of the IPC against Abdul Latief, Ibrahim and others. The learned magistrate committed that case to the Court of Session, Mangalore, and same came to be numbered as S. C. No. 2 of 1993, and same is pending in the Sessions Court. ( 3 ) IN view of the above said sessions case, Abdul Latief, complainant in C. C. No. 2925 of 1992 before the learned Judicial Magistrate of the First Class, Bantawal, filed an application under Section 323 of the Cr. P. C. , requesting that, in view of the said S. C. No. 2 of 1993 pending before the Court of Session, C. C. No. 2925 of 1992 which is a countercase, also be committed to the Court of Session to be tried along with the said S. C. 2 of 1993. That request was negatived by the Judicial Magistrate of the First Class, Bantawal, by the order dated 16-10-1996. Complainant Abdul Latief questioned the said order of rejection before the learned Sessions Judge, Mangalore in Criminal Revision Petition No. 343 of 1996. The said revision petition was allowed by the learned Sessions judge, and the learned Sessions Judge directed the learned Judicial magistrate of the First Class, Bantawal, to consider the request of the complainant Abdul Latief in the matter of committing the case concerned to the Court of Session. The said revision petition was allowed by the learned Sessions judge, and the learned Sessions Judge directed the learned Judicial magistrate of the First Class, Bantawal, to consider the request of the complainant Abdul Latief in the matter of committing the case concerned to the Court of Session. When the matter thus went back to the learned Judicial Magistrate of the First Class, for consideration of the request of the complainant to commit the case, the accused before the learned Judicial Magistrate of the First Class, viz. , Ramesh Poojary and others, sought for discharge in view of the directions of the Supreme court in the case of "common Cause", a Registered Society through its director v Union of India and Others. On 15-3-1999, the learned Judicial magistrate of the First Class, acceded to the request of the complainant abdul Latief in the matter of committing the case to the Court of Session and so committed the case. At the same time, the learned magistrate also rejected the request of the accused Ramesh Poojary and others, in the matter of discharging them on the basis of the directions in the "common Cause" case, supra. Against both these orders, accused ramesh Poojary and others preferred revision before the learned Sessions judge, Mangalore, at Criminal Revision Petition Nos. 39 and 40 of 1999. On 18-6-1999, the learned Sessions Judge disposed of both the revision petitions by a common order. The learned Sessions Judge allowed criminal Revision Petition No. 39 of 1999 that related to the order of the learned Magistrate committing the case to the Court of Session. The learned Sessions Judge set aside that order, and dismissed complainant abdul Latiefs application under Section 323 of the Cr. P. C. , under which, committal of C. C. No. 2925 of 1992 had been sought. So far as the other order of the learned Magistrate impugned in the other criminal Revision Petition No. 40 of 1999, is concerned, viz. , declining to accede to the request of the accused Ramesh Poojary and others on the basis of "common Cause" case, supra, the learned Sessions Judge dismissed that application, and specifically held that the order of the learned Magistrate in that regard stood maintained. , declining to accede to the request of the accused Ramesh Poojary and others on the basis of "common Cause" case, supra, the learned Sessions Judge dismissed that application, and specifically held that the order of the learned Magistrate in that regard stood maintained. ( 4 ) WHEN the matter thus went back to the learned Judicial Magistrate of the First Class after the above said common order of the learned Sessions Judge, the learned Magistrate misunderstood the order of the learned Sessions Judge in the matter of "common Cause" case, supra, and the learned Magistrate so understood the order of the learned Sessions judge as to conclude that the request of the accused Ramesh Poojary and others for discharge in the light of common cause case actually needed to be acceded to. The learned Magistrate, therefore, by his order dated 5-8- 1999, discharged the accused of the offences concerned. This order dated 5-8-1999 of the learned Magistrate is questioned herein in Criminal Revision Petition No. 679 of 1999. So far as the order of the learned Sessions Judge, dated 18-6-1999, by which he had set aside the earlier order of the learned Magistrate in the matter of committal of the case, complainant Abdul Latief has preferred another revision Petition No. 651 of 1999. Both are heard together. ( 5 ) SO far as Criminal Revision Petition No. 679 of 1999 is concerned, there is no doubt at all that in discharging the accused in the light of "common Cause" case, supra, the learned Magistrate has misunderstood the common order of the learned Sessions Judge dated 18-6-1999 in Criminal Revision Petition Nos. 39 and 40 of 1999. What the learned sessions Judge had actually done was to uphold the order of the learned magistrate and to refuse to accede to the request of the accused for being discharged in the light of the "common Cause" case, supra. When the matter came to the learned Magistrate, what the learned Magistrate thought was that the learned Sessions Judge had actually directed discharge of the accused. It was not so. As found earlier, the learned Sessions judge had upheld the order of the learned Magistrate in that regard, and had specifically said that the order of the learned Magistrate stood maintained. In spite of it, learned Magistrate passed the order of discharge. The said order is legally unsustainable. It was not so. As found earlier, the learned Sessions judge had upheld the order of the learned Magistrate in that regard, and had specifically said that the order of the learned Magistrate stood maintained. In spite of it, learned Magistrate passed the order of discharge. The said order is legally unsustainable. Criminal revision Petition No. 679 of 1999 is therefore allowed, and the order of the learned Magistrate dated 5-8-1999 in C. C. No. 2925 of 1992 is set aside. That means that, the said matter now goes back to the learned magistrate, Bantawal. It is then that the next question arises as to the necessity of committing it for being tried along with the above said S. C. No. 2 of 1993, pending on the file of the learned Sessions Judge, Mangalore. ( 6 ) COMMITTING of C. C. No. 2925 of 1992 for being tried along with S. C. No. 2 of 1993 is sought for on the footing that both the cases arise out of one single incident, and that they are nothing but, a case and counter-case. Apart from the learned Additional State Public Prosecutor Sri N. V. Prakash, the two learned Counsels appearing for the rival parties Sri Chandranath Ariga and Sri Sharanappa Mattur have taken me in detail through the entire material in both the cases. The date of incident is common, viz. , 9-12-1990. The time at which the incident took place, as alleged by each of the parties, is also same, viz. , at 7. 30 p. m. The place at which the incident, as alleged by each party, took place, is also same, viz. , on the road near the houses of Ibrahim and Abdul Latief. There is therefore, no doubt at all that what is alleged by both the parties relate to one single incident, but only that each party alleging that the other group is the aggressor. I am therefore of the opinion that these two are case and counter-case. Since in one of the cases, the offence punishable under Section 307 of the IPC had been alleged, same is committed to the Court of Session, Mangalore, where it is pending at s. C. No. 2 of 1993. Other one arising out of Abdul Latiefs complaint under Section 200 of the Cr. Since in one of the cases, the offence punishable under Section 307 of the IPC had been alleged, same is committed to the Court of Session, Mangalore, where it is pending at s. C. No. 2 of 1993. Other one arising out of Abdul Latiefs complaint under Section 200 of the Cr. P. C. relates to offences exclusively triable by the learned Magistrate, Bantawal, and therefore, it is not committed. But, its committal is sought on the ground that it is a case and countercase in relation to above said S. C. No. 2 of 1993. While the learned magistrate had come to the conclusion that the said case C. C. No. 2925 of 1992 should be committed to the Court of Session, the learned Sessions judge, however, has disagreed. Hence, the other Revision Petition no. 651 of 1999. ( 7 ) I have found above that the two cases arise out of one single incident, each party blaming the other one as the aggressor. I have therefore found that the two cases are nothing but a case and a countercase. One is a Sessions case which is already pending before the learned Sessions Judge, Mangalore. In view of the fact that the two cases are a case and a counter-case, it becomes necessary under Section 323 of the cr. P. C. to commit the other case pending before the learned Magistrate also for trial before the Sessions Court. The procedure to be followed in respect of a case and a counter-case is by now well-settled. Both the cases are to be tried before the same Court. Both are to be tried simultaneously or one after the other. Even if the trial in one case is completed earlier, the learned Trial Judge shall have to, after completion of arguments, reserve it for judgment and then proceed to complete the trial in the other case. When he thus hears arguments in both the cases, he must post both the cases for judgment on one single day. On that day, he shall pronounce judgments in the two cases. While doing all this, it is absolutely necessary that the Trial Judge should not import knowledge of one case to the other, and should not refer to or rely upon the evidence in one case for the purpose of the other case. On that day, he shall pronounce judgments in the two cases. While doing all this, it is absolutely necessary that the Trial Judge should not import knowledge of one case to the other, and should not refer to or rely upon the evidence in one case for the purpose of the other case. It is this procedure that is to be followed in respect of a case and a counter-case. It is for this purpose that one case, though exclusively triable by the Magistrate, is now required to be committed to the Sessions Court under Section 323 of the Cr. P. C. Once it is so committed, in spite of the fact that the case at present is one instituted otherwise than on a police report and in spite of the fact that the prosecution at present is being conducted by an Advocate, it would be necessary that its trial before the Court of Session shall have to be conducted by a public prosecutor in view of Section 225 of the cr. P. C. The prosecuting agency therefore shall have to make arrangements to have two separate public prosecutors, one for conducting prosecution in s. C. No. 2 of 1993 already pending before the Court of Session, dakshina Kannada, Mangalore, and another one for conducting the prosecution in the case to be now committed to Court of Session, Dakshina kannada, Mangalore in pursuance of the directions hereunder. ( 8 ) WHEN a case is committed under Section 323 of the Cr. P. C. , the distinction between a case committed under Section 323 of the Cr. P. C. and the normal committing of a case under Section 209 of the Cr. P. C. is this: viz. , that while committing a case under Section 209 of the Cr. P. C. , it is because of the fact that the case is exclusively triable by the Sessions Judge, whereas, the committing of a case under Section 323 of the Cr. P. C. is because it appears to the learned Magistrate that the case is one which ought to be tried by the Court of Session. Committing one case because the counter-case is pending before the Court of Session is one instance wherein the Magistrate has to conclude under Section 323 of the Cr. P. C. that he has to commit that case also to be tried by the court of Session. Committing one case because the counter-case is pending before the Court of Session is one instance wherein the Magistrate has to conclude under Section 323 of the Cr. P. C. that he has to commit that case also to be tried by the court of Session. Once that decision is reached, then, as the later part of section 323 of the Cr. P. C. specifies, the order of committing the case again shall have to be under the provisions hereinbefore contained, i. e. , the provisions contained in Chapter XVI of the Cr. P. C. and as the last portion of Section 323 of the Cr. P. C. specifies, after such commitment, the provisions of Chapter XVIII would apply to the committal so made. That means that, once the Magistrate decides under Section 323 of the cr. P. C. that the case before him is the one which ought to be tried by the Court of Session, then, the order of commitment that he makes thereunder is deemed to be an order of commitment made under Section 209 of the Cr. P. C. occurring in Chapter XVI of the Cr. P. C. Thereafter, though the case before him is in respect of the offences exclusively triable by him as a warrant case, still, by virtue of the mandate in this regard under Section 323 of the Cr. P. C. , trial, nevertheless, shall have to take place as a trial before the Court of Session under Chapter XVIII of the Cr. P. C. It is thus that even a warrant case pending before a magistrate exclusively triable by him, still becomes a sessions case triable under Chapter XVIII of the Cr. P. C. ( 9 ) IN the above circumstances, it therefore becomes necessary to direct the learned Magistrate to commit under Section 323 of the Cr. P. C. , C. C. No. 2925 of 1992. Here again, in the light of the facts of this particular case, another development needs to be noticed. As the very heading of Section 323 of the Cr. P. C. shows, the procedure thereunder is to be resorted to when, after commencement of inquiry or trial, the magistrate finds that the case should be committed. Here again, in the light of the facts of this particular case, another development needs to be noticed. As the very heading of Section 323 of the Cr. P. C. shows, the procedure thereunder is to be resorted to when, after commencement of inquiry or trial, the magistrate finds that the case should be committed. The submission of sri Chandrakant Ariga, learned Counsel for the accused in C. C. No. 2925 of 1992 is that, since the stage of inquiry has not yet been reached in the said case, Section 323 of the Cr. P. C. should right now be not resorted to. Technically, Sri Ariga is right. But, having found that the said case needs to be committed to the Court of Session, because of a case and a counter-case, it would not be proper to desist from giving necessary direction in that regard and it would not be proper to give rise to another proceeding to be brought before this Court for that purpose. I am of the opinion that such a direction needs to be given right now, but with the rider that the actual commitment shall be made after the inquiry is commenced and completed. Such a course is necessary for another reason also. Once the commitment is made under Section 323 of the Cr. P. C. , the next stage will be before the Court of Session commencing from Section 225 of the Cr. P. C. onwards, particularly, Sections 227 and 228 of the Cr. P. C. with regard to framing of charge or passing the order of discharge. To do that, the learned Sessions Judge shall have to consider the record of the case and the documents submitted therewith. As it is, the material for this purpose in C. C. No. 2925 of 1992 is lacking for the reason that, it being a warrant case instituted otherwise than on a police report, even the evidence for the purpose of deciding whether charge should be framed or not has first to be adduced under Section 244 of the Cr. P. C. It is only when such evidence is led and thereafter when the case is committed, that it would be possible for the learned sessions Judge to decide at the stage of Section 227/228 of the Cr. P. C. It is only when such evidence is led and thereafter when the case is committed, that it would be possible for the learned sessions Judge to decide at the stage of Section 227/228 of the Cr. P. C. as to whether the charge should be framed or whether an order of discharge shall be passed. It is for this reason, as also for the earlier stated reason viz. , Section 323 of the Cr. P. C. needed to be resorted to after the commencement of the inquiry, that I am of the opinion that the learned Magistrate should be directed to first record evidence under section 244 of the Cr. P. C. and then pass an order of commitment under section 323 of the Cr. P. C. ( 10 ) IN view of the above, Criminal Revision Petition No. 651 of 1999 also is allowed. The learned Magistrate is directed to proceed to record evidence for prosecution under Section 244 of the Cr. P. C. Once that is done, the learned Magistrate is directed to commit the case concerned, i. e. , C. C. No. 2925 of 1992 to the Court of Session, upon which, the learned Sessions Judge shall thereafter continue to deal with both the cases in the manner already indicated. Until the order of commitment is so made by the learned Magistrate, the learned Sessions Judge is directed not to dispose of S. C. No. 2 of 1993. So far as the other Criminal revision Petition No. 679 of 1999 is concerned, as already stated in paragraph 5 of the order, same is allowed. --- *** --- .