ORDER : These two Criminal Miscellaneous Cases are connected and therefore, I am disposing these cases by a common order. I will narrate the facts in Crl.M.C.No.746/2020 first. 2. Crl.M.C.No.746/2020 is filed by the State of Kerala challenging Annexure-4 order of the Judicial First Class Magistrate Court, Devikulam. Annexure-4 is an order dated 19.09.2019 in C.M.P. No.1596/2019 in C.C.No.49/2014 on the file of the Judicial First Class Magistrate Court, Devikulam. The above petition was filed by the State of Kerala through its Assistant Public Prosecutor before the learned Magistrate under Section 323 of the Code of Criminal Procedure, 1973 (for short, Cr.P.C.). The case of the petitioner is that C.C.No.49/2014 is a complaint filed by the Deputy Range Officer, Marayoor Forest Station, against the respondents in that petition, for the offences punishable under Sections 27(1) (e)(iii) and (iv) of the Kerala Forest Act, 1961, alleging that the respondents committed theft of about 200 kgs of sandal wood from Marayoor Sandal Reserve Forest. Respondents 1 and 2 are no more. In connection with the death of the 1st respondent Babu Thomas in that petition, Crime No.147/2006 was registered by the Marayoor Police under Section 174 Cr.P.C. The above case was subsequently investigated by the District Crime Branch, Idukki, and submitted a final report alleging offences punishable under Sections 143, 147, 148, 109, 114, 348, 330, 218, 201, 120 B and 302 read with Section 149 of the Indian Penal Code. The prosecution case is that on 23.11.2006, the forest officers, after arresting the 1st respondent Babu Thomas, physically assaulted him and due to the grave injuries sustained because of the physical torture, he died on the way to hospital. Based on the charge sheet, the case was committed to the Sessions Court and now the same is pending before the Sessions Court, Thodupuzha, as S.C.No.262/2010. 3. The forest case registered as C.C.No.49/2014 arising from OR No.15/2006 was filed by the Deputy Range Officer, Marayoor Forest Station, under Section 27(1)(e)(iii) and (iv) of the Kerala Forest Act. The learned Magistrate has taken cognizance of the same and the case is now pending as C.C.No.49/2014, which is posted for pre-charge evidence. The deceased and CW2 to CW4 in S.C.No.262/2010 on the file of the Sessions Court, Thodupuzha are the accused in C.C.No.49/2014 pending before the Judicial First Class Magistrate Court, Devikulam. The learned Magistrate has taken cognizance of the same and the case is now pending as C.C.No.49/2014, which is posted for pre-charge evidence. The deceased and CW2 to CW4 in S.C.No.262/2010 on the file of the Sessions Court, Thodupuzha are the accused in C.C.No.49/2014 pending before the Judicial First Class Magistrate Court, Devikulam. The witnesses namely CW11, CW20, CW21 and CW22 as well as the accused in S.C.No.262/2010 are the witnesses in C.C.No.49/2014 pending before the learned Magistrate. Therefore, according to the State, the witnesses to be examined and documents to be adduced in evidence in both these cases are connected. Therefore, for the proper decision of both the cases and in the interest of justice, it is inevitable to try S.C.No.262/2010 pending before the Sessions Court, Thodupuzha along with C.C.No.49/2014 pending before the Judicial First Class Magistrate Court, Devikulam is the submission. Hence the State filed an application under Section 323 Cr.P.C. before the Judicial First Class Magistrate Court, Devikulam, to commit the case to the Sessions Court for trying along with S.C.No.262/2010 pending before the Sessions Court, Thodupuzha. The learned Magistrate dismissed the same as per Annexure-4 order. Aggrieved by the same, this criminal miscellaneous case is filed by the State. The same order is challenged in Crl.M.C.No.947/2020 by the victim, who is the father of the deceased in S.C.No.262/2010 on the file of the Sessions Court, Thodupuzha. Annexure-F in Crl.M.C.No.947/2020 is Annexure-4 in Crl.M.C.No.746/2020. Aggrieved by the order passed by the learned Magistrate in the petition under Section 323 Cr.P.C., these criminal miscellaneous cases are filed by the State and the victim. 4. Heard the Additional Director General of Prosecution, Sri.Gracious Kuriakose, Adv.Manu Tom Cheruvally appearing for the petitioner in Crl.M.C.No.947/2020 and Adv.Sojan Michael appearing for respondents 3 and 4 in Crl.M.C.No.746/2020. Notice was issued to the other respondents in Crl.M.C.No.746/2020. Service on respondents 5 and 6 in Crl.M.C.No.746/2020 was not complete. Hence the State filed I.A.No.1/2023 stating that respondents 5 and 6 in this criminal miscellaneous case are absconding accused and they did not appear before the court below and they could not be arrested. Therefore, the State filed the above petition to dispense with the presence/appearance of respondents 5 and 6 in the above case and declare service in the case as complete. That petition was allowed by this Court at the risk of the applicants. 5. Therefore, the State filed the above petition to dispense with the presence/appearance of respondents 5 and 6 in the above case and declare service in the case as complete. That petition was allowed by this Court at the risk of the applicants. 5. The short point to be decided in these cases is whether C.C.No.49/2014 pending before the Judicial First Class Magistrate Court, Devikluam is to be committed to the Sessions Court, Thodupuzha, invoking the powers under Section 323 Cr.P.C. Admittedly the offences alleged in C.C.No.49/2014 pending before the Judicial First Class Magistrate Court, Devikulam are offences triable by the Magistrate Court. The State filed C.M.P.No.1596/2019 before the learned Magistrate under Section 323 Cr.P.C. stating that C.C.No.49/2014 pending before the Judicial First Class Magistrate Court, Devikulam is a case which ought to be tried by the Court of Sessions. The scope of the power of the learned Magistrate under Section 323 Cr.P.C. is to be discussed first. It will be better to extract Section 323 Cr.P.C.: “323. Procedure when, after commencement of inquiry or trial, Magistrate finds case should be committed:- If, in any inquiry into an offence or a trial before a Magistrate, it appears to him at any stage of the proceedings before signing judgment that the case is one which ought to be tried by the Court of Session, he shall commit it to that Court under the provisions hereinbefore contained and thereupon the provisions of Chapter XVIII shall apply to the commitment so made.” 6. From the above Section, it is clear that the learned Magistrate has got the power to commit a case to the Court of Sessions, if the learned Magistrate considers that the same ought to be tried by the Court of Sessions. Section 209 Cr.P.C. deals with the commitment of cases to the Court of Sessions when the offence is triable exclusively by it. It will be better to extract Section 209 Cr.P.C.: “209. Section 209 Cr.P.C. deals with the commitment of cases to the Court of Sessions when the offence is triable exclusively by it. It will be better to extract Section 209 Cr.P.C.: “209. Commitment of case to Court of Session when offence is triable exclusively by it:- When in a case instituted on a police report or otherwise, the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall- (a) Commit, after complying with the provisions of section 207 or section 208, as the case may be, the case to the Court of Session, and subject to the provisions of this code relating to bail, remand the accused to custody until such commitment has been made; (b) Subject to the provisions of this Code relating to bail, remand the accused to custody during, and until the conclusion of, the trial; (c) Send to that Court the record of the case and the documents and articles, if any, which are to be produced in evidence; (d) Notify the Public Prosecutor of the commitment of the case to the Court of Session.” 7. As per Section 209 Cr.P.C., when in a case instituted on a police report or otherwise, the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Sessions, he shall commit the case, after complying with the provisions of Section 207 or section 208, as the case may be, to the Sessions Court, subject to the provisions of the Code relating to bail, etc. The wording used in Section 209 Cr.P.C. is that “……. it appears to the Magistrate that the offence is triable exclusively by the Court of Sessions, he shall– (a) commit ….”. The wording used in Section 323 Cr.P.C. is that “If in any inquiry into an offence or a trial before a Magistrate, it appears to him at any stage of the proceedings before signing judgment that the case is one which ought to be tried by the Court of Sessions, he shall commit it to that Court …..”. So, as per Section 209 Cr.P.C., if the offence is triable exclusively by the Court of Sessions, the learned Magistrate has no other option, except to commit the case to the Sessions Court. So, as per Section 209 Cr.P.C., if the offence is triable exclusively by the Court of Sessions, the learned Magistrate has no other option, except to commit the case to the Sessions Court. But, as per Section 323 Cr.P.C. the Magistrate has to consider whether the case in hand is to be tried by the Court of Sessions. While considering Section 323 Cr.P.C., the Court can commit a case even though it is not an offence exclusively triable by the Court of Sessions, if the Magistrate feels that the case ought to be tried by the Court of Sessions. This principle is laid down by the Apex Court in Sudhir and Others v. State of M.P. [2001 SCC (cri) 387]. The relevant portion of the judgment is extracted hereunder: “9. It is a 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 a suggestion (In Re Goriparthi Krishtamma -1929 Madras Weekly Notes 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." 10. Close to its heels Jackson, J, made an exhortation to the then legislature to provide a mechanism as a statutory provision for trial of both cases by the same court (vide Krishna Pannadi vs. Emperor AIR 1930 Madras 190). The learned judge said thus: "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." 11. We are unable to understand why the legislature is still parrying to incorporate such a salubrious practice as a statutory requirement in the Code. 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." 11. We are unable to understand why the legislature is still parrying to incorporate such a salubrious practice as a statutory requirement in the Code. The practical reasons for adopting a procedure that such cross cases shall be tried by the same court, can be summarised thus: (I) It staves off the danger of an accused being convicted before his whole case is before the court. (2) It deters conflicting judgments being delivered upon similar facts; and (3) In reality the case and the counter case are, to all intents and purposes, different or conflicting versions of one incident. 12. In fact, many High Courts have reiterated the need to follow the said practice as a necessary legal requirement for preventing conflicting decisions regarding one incident. This court has given its approval to the said practice in Nathi Lal & Ors. vs. State of U.P & anr. [1990 (Supp) SCC 145]. The procedure to be followed in such a situation has been succinctly delineated in the said decision and it can be extracted here: "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 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." 13. How to implement the said scheme in a situation where one of the two cases (relating to the same incident) is charge-sheeted or complained of, involves offences or offence exclusively triable by a Court of Sessions, but none of the offences involved in the other case is exclusively triable by the Sessions Court. The magistrate before whom the former case reaches has no escape from committing the case to the Sessions Court as provided in Section 209 of the Code. Once the said case is committed to the Sessions Court, thereafter it is governed by the provisions subsumed in Chapter XVIII of the Code. Though, the next case cannot be committed in accordance with Section 209 of the Code, the magistrate has, nevertheless, power to commit the case to the court of Sessions, albeit none of the offences involved therein is exclusively triable by the Sessions Court. Section 323 is incorporated in the Code to meet similar cases also. That section reads thus: "If, in any inquiry into an offence or a trial before a Magistrate, it appears to him at any stage of the proceedings before signing judgment that the case is one which ought to be tried by the Court of Session, he shall commit it to that Court under the provisions hereinbefore contained and thereupon the provisions of chapter XVIII shall apply to the commitment so made." 14. The above section does not make an inroad into Section 209 because the former is intended to cover cases to which Section 209 does not apply. When a magistrate has committed a case on account of his legislative compulsion by Section 209, its cross case, having no offence exclusively triable by the Sessions Court, must appear to the magistrate as one which ought to be tried by the same Court of Sessions. We have already adverted to the sturdy reasons why it should be so. When a magistrate has committed a case on account of his legislative compulsion by Section 209, its cross case, having no offence exclusively triable by the Sessions Court, must appear to the magistrate as one which ought to be tried by the same Court of Sessions. We have already adverted to the sturdy reasons why it should be so. Hence the magistrate can exercise the special power conferred on him by virtue of Section 323 of the Code when he commits the cross case also to the Court of Sessions. Commitment under Section 209 and 323 might be through two different channels, but once they are committed their subsequent flow could only be through the stream channelised by the provisions contained in Chapter XVIII.” 8. Therefore, in the light of the above dictum also, it is clear that if the Magistrate wants to commit a case to the Sessions Court as per Section 323 Cr.P.C., that case need not be a case exclusively triable by the Sessions Court. 9. The main contention raised by the counsel appearing for respondents 3 and 4 to support the impugned order is that if the case is committed to the Sessions Court in the peculiar nature of the present case, they will be prejudiced to cross examine the witness because there will not be any previous statement of the witnesses. According to the counsel, C.C.No.49/2014 pending before the Judicial First Class Magistrate Court, Devikulam is a case lodged under Section 27(1)(e)(iii) and (iv) of the Kerala Forest Act. In that case, cognizance was taken on the basis of the complaint filed by the Deputy Forest Range Officer, Marayoor Forest Station. Before hearing on charge, pre-charge evidence is necessary under Section 244 Cr.P.C. in that case. Therefore, it is contended by the counsel for respondents No. 3 and 4 that they will get an opportunity to cross examine the witness based on the statement recorded under Section 244 Cr.P.C. However, once the case is committed to the Court of Sessions, pre-charge evidence could not be recorded. Hence there is prejudice to the accused in C.C.No.49/2014 pending before the Judicial First Class Magistrate Court, Devikulam, is the contention. Hence there is prejudice to the accused in C.C.No.49/2014 pending before the Judicial First Class Magistrate Court, Devikulam, is the contention. This Court once again considered Section 323 Cr.P.C. Once the learned Magistrate has decided that a case ought to be tried by the Court of Sessions, it is the mandatory duty of the learned Magistrate to commit it to the Sessions Court, and thereupon the provisions of Chapter XVIII Cr.P.C. is applicable. Chapter XVIII Cr.P.C. deals with the trial before a Court of Sessions. Therefore, once the Magistrate decided that a case ought to have been tried by the Court of Sessions as per Section 323 Cr.P.C. the procedure to be followed is Chapter XVIII Cr.P.C. Nowhere in Cr.P.C., it is stated that a witness can be cross examined only if a previous statement of the witness is supplied to the accused. Normally in criminal cases registered by the Police there will be Section 161 Cr.P.C. statement. Section 161 Cr.P.C. can be used only to contradict the statement of a witness in Court. In all criminal cases, previous statement of a witness may not be available for cross examination. That alone is not a reason for rejecting an application under Section 323 Cr.P.C. 10. There may be cases in which previous statement of the witness is available for cross examination and there may be cases in which previous statement of the witnesses are not available. That alone is not a reason for rejecting an application under section 323 Cr.P.C once the Magistrate has decided that the case ought to be tried by a Court of Session. 11. Moreover, as per section 227 of the Criminal Procedure Code, the sessions Court has to consider the records of the case and the documents submitted therewith and after hearing the submission of the accused and the prosecution, to find out whether there is sufficient ground for proceeding against the accused. Section 227 Cr.P.C does not say that the statement under section 161 Cr.P.C also should be considered while deciding whether there is sufficient ground for proceeding against the accused. Hence, it is clear that, there cannot be a uniform law that in cases in which there is no previous statement of a witness, the witness cannot be cross examined by the accused. Therefore that contention of respondents no.3 and 4 in Crl.M.C.No.746/2020 cannot be accepted. 12. Hence, it is clear that, there cannot be a uniform law that in cases in which there is no previous statement of a witness, the witness cannot be cross examined by the accused. Therefore that contention of respondents no.3 and 4 in Crl.M.C.No.746/2020 cannot be accepted. 12. Then the next question to be decided is whether S.C.No.262/2010 pending before the Sessions Court, Thodupuzha and C.C.No.49/2014 pending before the Judicial First Class Magistrate Court, Devikulam are connected and is to be tried by the Sessions Court itself. In Sudhir’s case (supra), this point is considered in detail by the Apex Court. 13. Moreover in Amir and Another v. State of Kerala [ 2022 (4) KHC 371 ] this Court considered about the case and counter case and also similar cases which is to be committed to the Sessions Court. It will be better to extract the relevant portion of the judgment. “12. In the light of the above quoted decisions and other decisions of this Court and the Apex Court, it is well settled that, as far as case and counter cases are concerned, each case has to be decided on its own merit and the evidence is to be recorded in one case cannot be used in its cross case. The only caution is that, both trials should be conducted one after the other. The practical reasons for adopting a procedure that counter cases shall be tried by the same Court is summarized in Sudir's case (supra). The same is extracted hereunder: (1) It staves off the danger of an accused being convicted before his whole case is before the Court. (2) It deters conflicting judgments being delivered upon similar facts. (3) In reality, the case and counter case are, to all intents and purpose, different or conflicting versions of one incident.” 14. From the above discussion, the point to be decided is whether C.C.No.49/2014 is to be tried by the Sessions Court in the facts and circumstances of this case. For this purpose, it will be better to extract the court charge framed in S.C.No.262/2010. From the above discussion, the point to be decided is whether C.C.No.49/2014 is to be tried by the Sessions Court in the facts and circumstances of this case. For this purpose, it will be better to extract the court charge framed in S.C.No.262/2010. ‘That on 23-11-2006 at 6.30 PM you all accused formed unlawful assembly with common object to wrongfully confine and torture deceased Babu Thomas with the intention to extort confession illegally, that you caused hurt to him and that you were armed deadly weapons and being members of the unlawful assembly you committed offence punishable U/Ss.147 and 148 of the Indian Penal Code, that on the same day you wrongfully confined deceased Babu Thomas in the hall room of Marayoor Forest Station with the intention to extort confession from deceased Babu Thomas and thereby you committed the offence punishable U/S.348 of the Indian Penal Code, that on the same at the same place you voluntarily caused hurt to Babu Thomas to extort confession from him in respect of property in O.R.16/2006 of Ottappalam Forest Range Office and thereby you committed the offence punishable U/S.330 of the Indian Penal Code, that you accused persons entered into criminal conspiracy to commit offence punishable U/Ss.348 and 330 of the Indian Penal Code against deceased Babu Thomas and thereby you committed the offence punishable U/S.120(B) of the Indian Penal Code, that you accused persons committed murder of deceased Babu Thomas by intentionally causing his death by continuously torturing him on 23-11-2006 from 7 PM onwards at Marayoor Forest Station building or with intention to causing such bodily injury as likely to cause his death or with the knowledge that he is likely by such act to cause death and thereby you committed the offence punishable U/S.302 of the Indian Penal Code, that each of you being the members of unlawful assembly and having knowledge that the aforesaid offences are likely to be committed in prosecution of the common object, that you committed offences punishable U/S.149 of the Indian Penal Code r/w Section 330, 348 and 302 of the Indian Penal Code, that accused 13 to 15 abetted in commission of the aforesaid offences and thereby you committed the offence punishable U/S.114 of the Indian Penal Code, that you the 2nd accused concealed the dhoti worn by Babu Thomas at the time of the incident in order to disappear evidence with the intention to escape from punishment and thereby you committed the offence punishable U/S.201 of the Indian Penal Code, that you the 12th accused entered incorrect entries in the General Diary maintained in Marayoor Forest Station and you 9th and 10th accused prepared incorrect mahazar and others signed it in order to make appear falsely that deceased Babu Thomas was taken into custody and sandal was recovered etc. and thereby you committed the offence punishable U/S.218 of the Indian Penal Code and within the cognizance of this court. I hereby direct that you be tried by this court on the said charge.’ 15. From a perusal of the above court charge, it is clear that, there is a charge against the accused in S.C.No.262/2010 to the effect that the accused voluntarily caused hurt to Babu Thomas, the deceased in that case, to extort confession from him in another case. This Court also perused the mahazar which is relied by the prosecution in C.C.No.49/2014. Annexure-2 in Crl.M.C.No.746/2020 is the complaint in O.R.No.15/2006. In the mahazar attached to that complaint, it is clearly stated that, Babu Thomas sustained injury while he tried to escape from the custody of the forest officials. It will be beneficial to extract the relevant portion of the mahazar prepared on 23.11.2006 by the forest officials. 16. This is the defence of the accused in S.C.No.262/2010. In such circumstance, the prosecution case in S.C.No.262/2010 pending before the Sessions Court, Thodupuzha and the prosecution case in C.C.No.49/2014 on the file of the Judicial First Class Magistrate Court, Devikulam are inter connected and therefore to be decided by the same Court. The defence case in S.C.No.262/2010 is in effect the prosecution case in C.C.No.49/2014 of Judicial First Class Magistrate Court, Devikulam. Therefore, if C.C.No.49/2014 is not committed to the Sessions Court, Thodupuzha, there are chances for conflicting decisions in these two cases. Therefore, I am of the considered opinion that the impugned order passed by the learned Magistrate rejecting the application under section 323 Cr.P.C by the State is not correct and it is to be allowed. Therefore, these Crl.M.Cs are allowed in the following manner: a) The order dated 19.09.2019 in C.M.P No. 1596/2019 in C.C.No.49/2014 on the file of the Judicial First Class Magistrate Court, Devikulam is set aside. b) The Judicial First Class Magistrate Court, Devikulam is directed to commit C.C.No.49/2014 to the Sessions Court forthwith after complying with the procedure in accordance with law. c) If any of the accused have not appeared in that case, the Court can split the charge and commit the case of the accused who appeared before the Magistrate Court. b) The Judicial First Class Magistrate Court, Devikulam is directed to commit C.C.No.49/2014 to the Sessions Court forthwith after complying with the procedure in accordance with law. c) If any of the accused have not appeared in that case, the Court can split the charge and commit the case of the accused who appeared before the Magistrate Court. d) The State is free to file a petition before the Sessions Judge, Thodupuzha to keep in abeyance S.C.No.262/2010 till C.C.No.49/2014 of Judicial First Class Magistrate Court, Devikulam is committed to that Court and if such an application is filed, Sessions Judge will pass appropriate orders in accordance with law, in the light of the observations in this judgment, after hearing both sides.