Judgment :- Mohan Shantanagoudar, J 1. The Division Bench has referred the following questions for consideration by Larger Bench:- (1) Whether the proceedings are vitiated if the case and counter case are not tried as held by the Honorable Supreme Court in Nathi Lal vs. State of U.P. reported in 1990 SCC (Cri) 638 and Sudhir and others vs. State of M.P. reported in 2001 SCC (Cri) 387? (2) Whether the evidence recorded in one case can be looked into the other case? If so, when and to what extent? (3) If the Trial Court disposes of case and counter case on different dates acquitting the accused therein and no appeal is preferred in one of the cases and appeal is preferred in the case decided later whether the proceedings in the later case are vitiated? 2. Brief facts leading to this reference are as under: The case and counter case i.e., Sessions Case No. 1/1995 and Sessions Case No.11/1995, arose out of the same incident that occurred at 2.00 P.M. on 31.3.1994 in front of Neelamma Temple, situated at Hippatheri Magani, Hospet Taluk, Bellary District. Though the aforementioned two sessions cases were the case and the counter case (or cross cases), they were not tried simultaneously and the judgments were not pronounced one after the other. Sessions Case No. 11/1995 was decided on 3.10.2003 by acquitting the accused therein. Whereas, Sessions Case No. 1/1995 was decided on 10.2.2005 and the accused therein are also acquitted. The judgment and order of acquittal passed in Session Case No. 11/1995 has attained finality, inasmuch as, no appeal is filed questioning the acquittal of the accused. However, Criminal Appeal No. 971/2005 came to be filed by the State against the judgment and order of acquittal dated 10.2.2005 passed in Sessions Case No. 1 /1995. 2A. During the course of hearing of Criminal Appeal No. 971/2005, it was brought to the notice of the Division Bench that the Sessions Case No. 1/1995 and Sessions Case No. 11/1995 were not tried simultaneously as per the dictum laid down by the Supreme Court in the case of NATHI LAL vs. STATE OF U.P. 1990 Supp. SCC 145: 1990 SCC (Cri) 638 and the judgment in the case of SUDHIR AND OTHERS vs. STATE OF M.P. 2001 SCC (Cri) 387 AND STATE OF M.P. vs. LAVKUSH AND OTHERS. SCC 145: 1990 SCC (Cri) 638 and the judgment in the case of SUDHIR AND OTHERS vs. STATE OF M.P. 2001 SCC (Cri) 387 AND STATE OF M.P. vs. LAVKUSH AND OTHERS. Various other judgments, including the judgment of the Division Bench of this Court in the case of ABDUL MAJID SAB AND OTHERS vs. STATE OF KARNATAKA ILR 2010 Karnataka 1719, where brought to the notice of the court in Crl.A. No. 971/2005. 2B. Since the judgment of this court in the case of ABDUL MAJID SAB (cited supra) contains certain observations contrary to the judgments of the Supreme Court in the case of NATHI LAL AND SUDHIR (cited supra), the Division Bench framed the aforementioned points and referred the said points for decision by the Larger Bench. 3. We have heard Sri. B.V. Acharya, Learned Advocate General, Sri V.M. Banakar, Learned Addl. SPP, and Learned Advocates Sri K.B. Navalgimath, Sri M.B. Gundawade and Sri Mallikarjun Masali. 4. In the case of NATHI LAL vs. STATE OF U.P. (cited supra), the Supreme Court has observed thus : - “2. We think that the fair procedure to adopt in a matter like the present where there are cross cases, is to direct that the same Learned Judge must try both the cross cases one after the other. After the recording of evidence in one case is completed, he must hear the arguments but he must reserve the judgment. Thereafter he must proceed to hear the cross case and after recording all the evidence he must hear the arguments but reserve the judgment in that case. The same Learned Judge must thereafter dispose of the matters by two separate judgments. In deciding each of the cases, he can rely only on the evidence recorded in that particular case. The evidence recorded in the cross case cannot be looked into. Nor can the judge be influenced by whatever is argued in the cross case. Each case must be decided on the basis of the evidence which has been placed on record in that particular case without being influenced in any manner by the evidence or arguments urged in the cross case. Nor can the judge be influenced by whatever is argued in the cross case. Each case must be decided on the basis of the evidence which has been placed on record in that particular case without being influenced in any manner by the evidence or arguments urged in the cross case. But both the judgments must be pronounced by the same Learned Judge one after the other.” (Emphasis supplied by us) In the case of SUDHIR AND OTHERS vs. STATE OF M.P. (cited supra), the Supreme Court has observed thus: “It is salutary practice, when two criminal cases relate to the same incident, they are tried and disposed of by the same court by pronouncing judgments on the same day. Such two different versions of the same incident resulting in two criminal cases are compendiously called “case and counter case” by some High courts and “cross cases” by some other High courts. Way back in nineteen hundred and twenties a Division Bench of the Madras High Court (Waller and Cornish, JJ) made suggestions. Goriparthi Krishtamma 1929 MWN 881 that “a case and counter case” arising out of the same affair should always, if practicable, be tried by the same court; and each party would represent themselves as having been the innocent victims of the aggression of the other.” (Emphasis supplied) From the observations made by the Supreme court quoted supra, it is clear that where two cases arise out of the same incident which are commonly called a case and counter case (or cross cases), it is a salutary practice or a fair practice that they are tried and disposed of by the same court simultaneously by pronouncing the judgments one after another by the very Judge. The procedure to be adopted in such matters is specifically laid down by the Supreme court in the case of NATHI LAL. It is generally recognized and salubrious practice to be adopted by the courts as per the observations made by the Supreme Court. 4A. The Division Bench of Madras High Court in the case of GORIPARTHI KRISHTAMMA In re. 1929 MWN 881 way back in the year 1929 has held that the case and the counter case arising out of the same incident always, if practicable, be tried by the same court; and each party would represent themselves as having been the innocent victims of the aggression of the other. 1929 MWN 881 way back in the year 1929 has held that the case and the counter case arising out of the same incident always, if practicable, be tried by the same court; and each party would represent themselves as having been the innocent victims of the aggression of the other. The Division Bench of Mysore High Court in the case of GUNDI GIRIYAPPA & OTHERS 1939 Mysore Law Reports Vol. XVIII Page 229 has observed that the same Public Prosecutor was not right in having presented both cases one after the other before the court for trial. It has further observed that it is not legitimate or honourable for a Police Officer to put in a charge sheet and start a prosecution not caring whether it is true or false. The court has discussed the importance of the Police acting impartially and honestly in investigating the crime and launching prosecutions in the Courts. In the case of KRISHNA PANNADI vs. EMPEROR the Madras High Court has observed that, 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. 4B. The Supreme Court in the case of MITTULAL & ANOTHER vs. STATE OF MADHYA PRADESH AIR 1975 SC 149 has observed thus : - “It is difficult to comprehend as to how the High Court could decide the appeal before it by taking into account evidence recorded in another case, even though it might be what is loosely called a cross-case. It is elementary that each case must be decided on the evidence recorded in it and evidence recorded in another case cannot be taken into account in arriving at the decision. Even in civil cases this cannot be done unless the parties are agreed that the evidence in one case may be treated as evidence in the other. Much more so in criminal cases would this be impermissible. It is doubtful whether the evidence recorded in one criminal case can be treated as evidence in the other, even with the consent of the accused. Much more so in criminal cases would this be impermissible. It is doubtful whether the evidence recorded in one criminal case can be treated as evidence in the other, even with the consent of the accused. But here there was clearly no consent of the appellants to treat the evidence recorded in the cross – case against Ganpat and Rajdhar as evidence in the case against them. The High Court was, therefore, clearly in error in taking into consideration the evidence recorded in the cross-case against Ganpat and Rajdhar. The High court ought to have decided the appeal before it only on the basis of the evidence recorded in the present case and ought not to have allowed itself to be influenced by the evidence recorded in the cross-case against Ganpat and Rajdhar. It is regrettable that the High Court should have fallen into such an obvious error.” (Emphasis supplied) 4C. In the case of HARJINDER SINGH vs. STATE OF PUNJAB AND OTHERS (1985) 1 SCC 422 the Supreme Court has observed thus: “Para – 8 :In the facts and circumstances of this particular case we feel that the proper course to adopt is to direct that the two cases should be tried together by the Learned Additional Sessions Judge but not consolidated i.e. the evidence should be recorded separately in both the cases one after the other except to the extent that the witnesses for the prosecution who are common to both the cases be examined in one case and their evidence be read as evidence in the other. The Learned Additional Sessions Judge should after recording the evidence of the prosecution witnesses in one case, withhold his judgment and then proceed to record the evidence of the prosecution in the other case. Thereafter he shall proceed to simultaneously dispose of the cases by two separate judgments taking care that the judgment in one case is not based on the evidence recorded in the other case. In Kewal Krishnan case, this court had occasion to deal with a situation as the present, where two cases exclusively triable by the Court of Session, one instituted on a Police report under Section 173 of the Code and the other initiated on a criminal complaint, arose out of the same transaction. In Kewal Krishnan case, this court had occasion to deal with a situation as the present, where two cases exclusively triable by the Court of Session, one instituted on a Police report under Section 173 of the Code and the other initiated on a criminal complaint, arose out of the same transaction. The Court observed that to obviate the risk of two courts coming to conflicting findings, it was desirable that the two cases should be tried separately but by the same court. The High Court was largely influenced in upholding the order of the Learned Additional Sessions Judge by the fundamental right of the accused guaranteed by Article 20 (2) of the Constitution and Section 300 of the Code which provides that no person shall be prosecuted and punished for the same offence more than once. If there is no punishment for the offence as a result of the prosecution, sub-clause (2) of Article 20 has no application. The constitutional right guaranteed by Article 20 (2) against double jeopardy can still be reserved if the two cases are tried together but not consolidated i.e, the evidence be recorded separately in both cases and they be disposed of simultaneously. Further, the second prosecution must be for the ‘same offence’. If the offences are distinct, there is no question of the rule as to double jeopardy being applicable.” (Emphasis supplied) 4D. The same is the dictum laid down by the Supreme Court in the recent judgment in the case of KULDIP YADAV AND OTHERS vs. STATE OF BIHAR (2011) 5 SCC 324 . The dictum laid down by the Supreme Court successively in the cases of NATHI LAL (supra), SUDHIR (supra). MITTULAL (supra) and KULDIP YADAV (supra) is being followed by the courts in India. 4E. The Division Bench of this court in the case of STATE OF KARNATAKA vs. BALAPPA BHAU VADAGAVE AND OTHERS ILR 1984 (1) Kar 21 has referred to all the earlier judgments of the Supreme Court and High Courts and has observed thus: “There cannot be any two opinions that the case and the counter case arising out of the same incident though registered in separate crime numbers, are not two independent cases but two versions of the same incident. For the purpose of investigation, both the complaint and the counter-complaint are registered separately but the truth or otherwise of the complaint and the counter-complaint shall have to be verified by the same Investigating Officer, investigating both the crimes impartially and diligently and after completing the investigation, assess the material collected in both the crimes, form an opinion as to which of the persons in the complaint or the counter-complaint, as the case may be, have committed the offence and place the charge-sheet against such persons and refer the case in which he found no offence is made out, so that the concerned party may prosecute his complaint in a court of law. However, we may emphasize that in appropriate cases, though such cases seldom occur, the Investigating Officer may file charge-sheets against both the parties as illustrated in “Gundi Giriyappa” case (supra) to which a reference has been made earlier.” The Division Bench of this court in the aforementioned judgment has even laid down law with regard to the procedure for investigation of the case and counter case. 4F. We do not want to burden this order by quoting all such judgments on the very point. However, we feel it necessary to refer to certain judgments viz., STATE OF VIJAYAPURA POLICE vs. DODDASUBBANNA @ SUBBARAYAPPA ILR 2010 KAR 737, K.M. GANESHA vs. STATE OF KARNATAKA ILR 2003 KAR 2489, SHIVALINGAIAH vs. STATE OF KARNATAKA 1993 (1) Crimes 1109 and ABDUL LATIEF vs. STATE BY BELTHANGADI POLICE 2001 (3) KLJ 31. 5. Case and counter case (cross cases) are, for all purposes, different or conflicting versions of one incident. Reading of the aforementioned judgments makes clear that, in order to avert the danger of an accused being convicted before his whole case is before the court and in order to deter conflicting judgments being delivered upon similar facts, the consistent and salubrious practice adopted by the Courts in India right from 1929 is that the cross cases shall be tried simultaneously by the same Judge. After recording evidence and after hearing the arguments, the Judgment should be reserved in one case and thereafter the evidence should be recorded and the arguments shall be heard in another case. Arguments in both the cases shall be heard by the same judge. The Judgments should be pronounced by the same Judge one after another. After recording evidence and after hearing the arguments, the Judgment should be reserved in one case and thereafter the evidence should be recorded and the arguments shall be heard in another case. Arguments in both the cases shall be heard by the same judge. The Judgments should be pronounced by the same Judge one after another. It is also settled position in law as laid down by the Supreme Court in the aforementioned judgments that in deciding the case and the counter case, the Trial Judge can only rely on the evidence recorded in that particular case and the evidence recorded in the cross case cannot be looked into, nor can the Judge be influenced by the arguments in the cross case. Each case must be decided on the basis of the evidence which has been placed on record in that particular case without being influenced in any manner by the evidence and the arguments in the cross case. 6. It is also relevant to note that the investigation is to be conducted by the same Investigating Officer and the prosecution should be conducted by two different Public Prosecutors. The Government of Karnataka has issued the law Circular dated 24.9.1982 bearing No. 4836 and the law Circular dated 12.11. 1982 bearing No. 4839, stipulating that the same Investigation Officer shall investigate case and counter case. 7. However, the Division Bench of this Court in ABDUL MAJID SAB AND OTHERS vs. STATE OF KARNATAKA BY RIPPONPETE POLICE (Supra) has observed thus: “Para 27: It is well-settled principle in a case and a counter the same I.O. should investigate both the cases and should file final report. The different prosecutors should conduct prosecution; the same Judge should try the cases simultaneously and render separate judgments. It is a judicial dicta that the court should not read/get influenced by the evidence recorded in the other case, unless the said material in the other case is marked as an evidence in the case in question. To say that the court should not read/influenced by the evidence recorded in the other case under all circumstances would be a perverse view and runs counter to the logic of holding simultaneous investigation by the same I.O. and trial by the same Judge. To say that the court should not read/influenced by the evidence recorded in the other case under all circumstances would be a perverse view and runs counter to the logic of holding simultaneous investigation by the same I.O. and trial by the same Judge. Otherwise, it is impossible for the Judge to appreciate the guilt of the accused to find out whether both are aggressors and both are guilty of indulging in free fight or one of them is an aggressor and the other caused injuries on the accused in exercise of right of private defence.” (Emphasis supplied by us) The aforementioned observations made by the Division Bench in the case of ABDUL MAJID SAB, in our considered opinion, run contrary to the dictum laid down by the Supreme Court in various judgments cited supra, including the cases of NATHI LAL vs. STATE OF U.P.(supra), SUDHIR AND OTHERS vs. STATE OF M.P. (supra), MITTULAL AND ANOTHER vs. THE STATE OF M.P. (supra) and KULDIP YADAV vs. STATE OF BIHAR (supra). There is no statute governing the procedure to be adopted in case and counter case or cross cases. However, the Supreme court has laid down the procedure for trial in such matters. The Legislature ought to remedy the defect by enacting the procedure in that regard. However, the Judge made law relating to procedure mentioned supra is being followed since 1929 till this day. The law declared by the Supreme Court binds all the courts in India under Article 141 of the Constitution of India. Hence, the observations, made by the Division Bench in the case of ABDUL MAJID SAB (quoted supra) do not lay down good law on the point, inasmuch as, the observations run contrary to the well established principles of law as laid down by the Supreme court from time to time. 8. The Supreme court has described the procedure and practice of simultaneous trial of case and counter case as “fair procedure”, ‘salubrious practice”, “salutary practice”, “generally recognized rule”, “proper procedure to adopt” etc., in various judgments. The procedure to be adopted by the Courts while dealing with the case and counter case is the Judge made procedure and not a statutory procedure. The question, however, is whether the wrong procedure adopted by the Learned Trial Judge vitiates the trial, irrespective of the fact whether prejudice has been caused to the accused or not. 9. The procedure to be adopted by the Courts while dealing with the case and counter case is the Judge made procedure and not a statutory procedure. The question, however, is whether the wrong procedure adopted by the Learned Trial Judge vitiates the trial, irrespective of the fact whether prejudice has been caused to the accused or not. 9. In case of irregularity in not adopting the procedure which otherwise ought to have been adopted, generally the trial or proceeding does not get vitiated. Only in the case of want of competency of the Trial court, the procedure vitiates. The Privy Council in the case of PULUKURI KOTAYYA vs. EMPEROR AIR 1947 PC 67 has observed thus: “Para 7 : Even on this basis, Mr. Pritt for the accused has argued that a breach of a direct and important provision of the Code of Criminal Procedure cannot be cured, but must lead to the quashing of the conviction. The Crown, on the other hand, contends that the failure to produce the note book in question amounted merely to an irregularity in the proceedings which can be cured under the provisions of S. 537, Criminal P.C., if the court is satisfied that such irregularity has not in fact occasioned any failure of justice. There are, no doubt, authorities in India which lend some support to Mr. Pritt’s contention, and reference may be made to 49 ALL. 475, in which the court expressed the view that S. 537, Criminal P.C. applied only to errors of procedure arising out of mere inadvertence, and not to cases of disregard of, or disobedience to, mandatory provisions of the Code, and to 45 Mad, 820 in which the view was expressed that any failure to examine the accused under S, 342, Criminal P.C. was fatal to the validity of the trial and could not be cured under S. 537. In their Lordship’s opinion this argument is based on too narrow a view of the operation of S. 537. In their Lordship’s opinion this argument is based on too narrow a view of the operation of S. 537. When a trial is conducted in a manner different from that prescribed by the Code as in 28 I.A. 257, the trial is bad, and no question of curing and 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 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 or more of the very comprehensive provisions of the Code. The distinction drawn in many of the cases in India between an illegality and an irregularity is one of degree rather than of kind. This view finds support in the decision of their Lordship’s Board in 5 Rang. 53, where failure to comply with S. 360, Criminal P.C. was held to be cured by SS. 535 and 537. The present case falls under S. 537, and their Lordships hold the trial valid notwithstanding the breach of S.162.” It seems to us that the case falls within the second category mentioned by the Privy Council. This is not a case of want of competency, but is a case of irregularity. 10. Though the procedure prescribed by the Supreme court mentioned supra is indicative of the mandatory nature of the procedure to be followed, in our considered opinion, the proceedings ipso facto are not vitiated if the case and counter case are not tried as per the procedure laid down by the Supreme court in case of NATHI LAL vs. STATE OF U.P. (Supra), SUDHIR AND OTHERS vs. STATE OF M.P. (supra) and other cases. In this context it is relevant to refer to section 465 of Code of Criminal Procedure, 1973 (hereinafter referred to as ‘Code’ for short) which reads thus: “Section 465: Finding or sentence when reversible by reason of error, omission or irregularity. In this context it is relevant to refer to section 465 of Code of Criminal Procedure, 1973 (hereinafter referred to as ‘Code’ for short) which reads thus: “Section 465: Finding or sentence when reversible by reason of error, omission or irregularity. – (1) Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered by a court or appeal, confirmation or revision on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this code, or any error, or irregularity in any sanction for the prosecution, unless in the opinion of that court, a failure of justice has in fact been occasioned thereby. (2) In determinig whether any error, omission or irregularity in any proceeding under this code, or any error, or irregularity in any sanction for the prosecution has occasioned a failure of justice, the court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings.” (Emphasis supplied) 11. Use of the words in the judgments cited supra, no doubt is prima facie indicative of mandatory character of the procedure to be followed in case and counter case, a close analysis thereof, in the light of the provisions contained in Section 465 of the Code would indicate that non-compliance of such a procedure, by itself, is not sufficient to denude the concerned Judge of the jurisdiction to proceed with the trail and to pass the final order. If the procedure as stated by the Supreme Court mentioned supra in the cases of NATHI LAL and similar matters are not followed, the same would be a case of irregularity, but not a case of want of competency. The wrong procedure adopted by the Trial Judge in such matters does not in any way relate to competency of the Court, but, it relates to adopting irregular procedure. 12. The omission on the part of the Trial Judge in not following the procedure of simultaneous trails does not vitiate the trial in view of section 465 Cr.P.C., particularly when it is not shown that any prejudice is caused to the accused on account of this omission. 12. The omission on the part of the Trial Judge in not following the procedure of simultaneous trails does not vitiate the trial in view of section 465 Cr.P.C., particularly when it is not shown that any prejudice is caused to the accused on account of this omission. In this context, it is relevant to note certain observations made by the Supreme court in the case of BANWARI AND ANOTHER vs. STATE OF UTTAR PRADESH AIR 1962 SC 1198 . Wherein the effect of the provisions of section 537 of the Code of Criminal Procedure, 1898 (akin to section 465 of Code of Criminal Procedure, 1973,) is considered. The said observations are as follows: “Para 20: 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 prejudice has been caused to the accused or not. Para28: We have already said that the proceedings in each separate trail should be separate and that on that basis the procedure adopted by the Learned Sessions Judge was wrong. The question for determination, then, is whether his following the wrong procedure vitiates the trial and the conviction of the appellants or is curable under S. 537 of the Code.” Para– 29: We are of opinion that such a defect does not invalidate the trial in view of S. 537 of the Code.” In the above case. The Sessions Judge had tried the three sessions cases jointly arising out of three different charge sheets. The Supreme Court has held that the procedure adopted by the Sessions Judge was wrong. However, while deciding the question as to whether following of wrong procedure vitiates the trial, the Supreme Court held that such a defect does not invalidate or vitiate the trial. 13. Section 465 of the Code is intended to cure any error, omission, irregularity or infraction of procedural law committed by the Court of competent jurisdiction, unless such irregularity or illegality has in fact occasioned a failure of justice. 13. Section 465 of the Code is intended to cure any error, omission, irregularity or infraction of procedural law committed by the Court of competent jurisdiction, unless such irregularity or illegality has in fact occasioned a failure of justice. The object of the section is to secure justice by preventing the invalidation of a trial held on the ground of technical breaches of any provisions of the Code causing no prejudice to the accused. The intention is to eliminate all possibilities of acquittal of persons committing offences except on the merits. The procedural laws are designed to further the ends of justice and not to frustrate them by the introduction of endless technicalities. The object of the Code is to ensure that an accused person gets a full and fair trial along with certain well established and well-understood principles that accord with out notions of natural justice. If there be substantial compliance with the requirements of law providing the accused a full and fair trial in accordance with principles of natural justice, no order of a competent court should be reversed or altered in appeal or revision on account of a procedural irregularity unless the same results in miscarriage of justice. The procedural laws are designed to subserve the ends of justice and not to frustrate them. The test to be applied is whether the accused had a fair trial in spite of the transgression of the prescribed rule or procedure. In judging the question of prejudice, Courts must act with a broad vision and look to the substance and not to technicalities and their main concern should be to see whether the accused had a fair trial; whether he knew that he was being tried for; whether the main facts sought to be established against him were explained to him fairly and clearly; and whether he was given a full and fair chance to defend himself. 14. In our considered opinion, in each case, it has to be decided on merits based on the facts and circumstances of that case, as to whether irregularity in the procedure adopted by the Trial Judge while proceeding with the trial has occasioned failure of justice or not. If the irregularity in procedure adopted by the sessions court has occasioned failure of justice, then only the proceedings vitiate. Otherwise, not. 15. If the irregularity in procedure adopted by the sessions court has occasioned failure of justice, then only the proceedings vitiate. Otherwise, not. 15. But as a proposition of law, it cannot be laid down in omnibus manner that in case if the procedure relating to simultaneous trial of case and counter case as mentioned in NATHI LAL AND SUDHIR is not followed, the trial vitiates. We are clearly of the opinion that, if the procedure adopted by the Trial Court while trying the case and the counter case is in derogation of the procedure prescribed by the Supreme court in the case of NATHILAL AND SUDHIR, though, amounts to adopting irregular procedure, it does not invalidate or vitiate the proceedings, or trial in view of section 465 of the Code. Therefore, if the procedure prescribed is not followed by the concerned Trial Judge, the aggrieved party would have to show as to how the same has caused prejudice to him. Hence, the proceedings will not vitiate except where prejudice is shown to have been caused to the accused. Procedural irregularity committed by the Trial Court cannot be equated to lack of competency on the part of the Trial Court. 16. To sum up the procedure to be adopted in case and counter case is that the investigation should be conducted by the same Investigating officer and the prosecution should be conducted by two different Public Prosecutors. The trial should be conducted by the same court. After recording the evidence and after hearing the arguments, the judgment should be reserved in one case and thereafter the evidence should be recorded and the arguments should be heard in the other case. It is needless to observe that the arguments in both the matters shall be heard by the same Learned Judge. The judgments should be pronounced by the same Judge simultaneously i.e., one after the other. In deciding each case, the Trial Judge can only rely on the evidence recorded in that particular case and the evidence recorded in the cross case (or counter case) cannot be looked into. The Judge shall not be influenced by the evidence or arguments in the cross case. However, if the evidence recorded in one case is brought on record in another case in accordance with the procedure known to law, then, such evidence which is legally brought on record can be looked into. The Judge shall not be influenced by the evidence or arguments in the cross case. However, if the evidence recorded in one case is brought on record in another case in accordance with the procedure known to law, then, such evidence which is legally brought on record can be looked into. Except in such situation, the evidence recorded in one case cannot be looked into in another case. 17. If the Trial court by not adopting the salutary procedure mentioned supra disposes of the case and the counter case on different dates acquitting the accused therein and no appeal is preferred in one of the cases and appeal is preferred in the case decided later, in our considered opinion, the proceedings in the later case are not vitiated. The court cannot compel the state to file an appeal in any given case. It is left to the wisdom of the state to decide as to whether the judgment passed by the court below needs to be questioned or not. If the State is satisfied about the judgment passed in one case it may choose not to file appeal in that case. However, the state may feel that in the other case (i.e. in the counter case), appeal may be necessary. In such an event, nobody can prevent the state from filing the appeal. If two cases arise out of the same incident and if two charge sheets are filed, two trials will be held. In a given case, the trial judge may choose to acquit the accused in both the cases or may choose to convict the accused in both the cases : the Trial Judge may even convict the accused in one case and acquit the accused in another case. The decision will depend upon facts and circumstances of each case. Merely because the appeal is not filed in one case and the appeal is filed in the other case, the proceedings will not get vitiated automatically in the later case. In our considered opinion, in such a situation, the accused in such cases will have to show prejudice suffered by him. However, as a proposition of law, it cannot be laid down that the appeal filed in the second case by the state questioning the judgment and order of acquittal needs to be dismissed in limine on the ground that the proceedings in the later case is vitiated. However, as a proposition of law, it cannot be laid down that the appeal filed in the second case by the state questioning the judgment and order of acquittal needs to be dismissed in limine on the ground that the proceedings in the later case is vitiated. It all depends upon facts and circumstances of individual case to be decided by the Appellate Court to see whether any prejudice is caused to the accused in not conducting the trial of the case and the cross case simultaneously. 18. In view of the foregoing reasons, we answer the points referred to us as under: .(a) If the case and counter case are not tried simultaneously as held by the Supreme court in the case of NATHI LAL vs. STATE OF U.P. (Supra) and in the case of SUDHIR AND OTHER vs. STATE OF M.P. (Supra) the proceedings ipso facto do not get vitiated. But, where the irregular procedure adopted by the Trial court has caused prejudice to the accused and has occasioned failure of justice, the proceeding and the trial vitiates. Otherwise, the proceedings are protected under section 465 of the code. (b) The evidence recorded in one case cannot be looked into in the other case. The Trial Judge can only rely upon the evidence recorded in that particular case and the evidence recorded in the cross case cannot be looked into. Each case must be decided on the basis of the evidence which has been placed on record in that particular case. However, if the evidence recorded in one case is brought on record in accordance with procedure known to law in the other case, then , such evidence which is legally brought on record can be looked into. Otherwise, the evidence recorded in one case cannot be looked into in the other case. .(c) If the Trial court disposes of the case and counter case on different dates acquitting the accused therein and no appeal is preferred in one of the cases and the appeal is preferred in the case decided later, the proceedings in the later case do not automatically get vitiated. Each case has to be judged on its own merits. Unless prejudice is shown to have been caused to the accused, the proceedings in the later case do not get vitiated. The reference is answered accordingly. Each case has to be judged on its own merits. Unless prejudice is shown to have been caused to the accused, the proceedings in the later case do not get vitiated. The reference is answered accordingly. Post the Criminal Appeal for hearing before the Bench having roaster.