Santosh Yadav And 5 Others vs State of U.P. and Another

HIGH COURT OF JUDICATURE AT ALLAHABAD
MATTERS UNDER ARTICLE 227 No. - 14541 of 2025
Santosh Yadav And 5 Others
.....Petitioner(s)
Versus
State of U.P. and Another
.....Respondent(s)
Counsel for Petitioner(s) : Mayank Yadav, Shailendra Kumar Gupta
Counsel for Respondent(s) : G.A., Rakesh Prasad Mishra, Ravi
Prakash Singh
AFR

Court No. - 46
HON'BLE GARIMA PRASHAD, J.
1. Heard Sri Dhirpal Singh, learned counsel holding brief of Sri Shailendra
Kumar Gupta, learned counsel for the petitioners, Sri Rakesh Prasad Mishra,
learned counsel for respondent no.2 and the learned AGA for the State.

2. The present petition under Article 227 of the Constitution of India has
been filed challenging the order dated 23.05.2025 passed by the Sessions
Judge, Mirzapur in Transfer Application No.158 of 2025 arising out of
Sessions Trial No.1309 of 2024 (State vs. Surendra Yadav and others).

3. The case of the petitioners is that respondent no.2 lodged a first
information report which was registered as Case Crime No.252 of 2023
under Sections 147, 323, 352, 504 and 506 IPC and Sections 3(2)(Va),
3(1)(da) and 3(1)(dha) of the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989 at Police Station Kotwali Dehat, District
Mirzapur. It is further stated that the mother of petitioner no.2 lodged a
counter first information report against respondent no.2 and his family
members, which was registered as Case Crime No.253 of 2023 under
Sections 147, 323, 427, 504 and 506 IPC at the same police station.
4. According to the petitioners, both the aforesaid FIRs arise out of the same
incident and constitute cross-cases. Since offences under the SC/ST Act
have been alleged in Case Crime No.252 of 2023, the said case is pending
before the learned Special Judge, SC/ST Act, Mirzapur, whereas Case Crime
No.253 of 2023 is pending before the Court of Chief Judicial Magistrate,

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Mirzapur.

5. It is submitted that in view of the law laid down by the Hon?ble Supreme
Court in , both cases ought
Nathi Lal Vs. State of U.P., 1990 Supp SCC 145
to be tried by the same Court. Accordingly, the petitioners moved an
application before the learned Sessions Judge seeking transfer of Case Crime
No.253 of 2023 from the Court of the Magistrate to the Court where the
connected case arising out of Case Crime No.252 of 2023 is pending.

6. The learned Sessions Judge, by the impugned order, rejected the said
application holding that the petitioners ought to have approached the learned
Magistrate under Section 323 Cr.P.C.

7. Assailing the said order, learned counsel for the petitioners submits that
once a transfer application had been filed under Section 408 Cr.P.C., it was
incumbent upon the learned Sessions Judge to examine whether the two
cases were cross-cases and whether transfer was required in the interests of
justice. It is submitted that the application could not have been rejected
merely on the ground that recourse to Section 323 Cr.P.C. was available
before the learned Magistrate.

8. Per contra, learned counsel for respondent no.2 as well as the learned
AGA support the impugned order and submit that the petitioners ought to
have first approached the learned Magistrate under Section 323 Cr.P.C. and,
therefore, no interference is called for.

9. This Court has considered the submissions of the learned counsels for the
parties and perused the record.

10. The principal issue which falls for consideration in the present petition is
whether the learned Sessions Judge was justified in rejecting the transfer
application on the ground that the petitioners ought to have approached the
learned Magistrate under Section 323 Cr.P.C., despite the petitioners having
invoked the jurisdiction of the Sessions Court under Section 408 Cr.P.C.

11. It is not disputed that two criminal cases have been registered between
the parties in relation to the incident in question. According to the
petitioners, both cases arise out of the same occurrence and constitute cross-

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cases. While one of the cases is pending before the learned Special Judge,
SC/ST Act, Mirzapur, the other is pending before the Court of the learned
Magistrate. On this basis, the petitioners moved an application before the
learned Sessions Judge seeking transfer of the case pending before the
Magistrate so that both matters could be be tried by the same Court.

12. In Nathi Lal (supra), the Hon?ble Supreme Court observed that where
there are two criminal cases arising out of the same incident, both cases
should ordinarily be tried by the same Court. The object underlying such a
procedure is to avoid conflicting judgments and inconsistent findings
regarding the same occurrence and to ensure a fair adjudication of the rival
versions put forward by the parties.

13. The aforesaid principle was subsequently reiterated and elaborated in
Sudhir and Others Vs. State of Madhya Pradesh, (2001) 2 SCC 688 . The
Supreme Court noticed the practical difficulty that frequently arises where
one of the cross-cases is triable by a Court of Session while the counter-case
is triable by a Magistrate. The Court held that such procedural distinctions
ought not to frustrate the principle laid down in Nathi Lal (supra) and
emphasized that both cases should ultimately be tried by the same Court.
The Supreme Court further observed that the Sessions Court is competent to
try offences under the Indian Penal Code and can adopt a procedure ensuring
that both cross-cases are heard by the same Judge one after the other.

14. The learned Sessions Judge has rejected the transfer application on the
ground that the petitioners ought to have approached the learned Magistrate
under Section 323 Cr.P.C. It is therefore necessary to examine the scope of
Sections 323 and 408 Cr.P.C. and the field in which each of the said
provisions operates. Section 323 Cr.P.C. reads as under:-
"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."

15. A plain reading of Section 323 Cr.P.C. shows that the provision

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empowers a Magistrate to commit a case to the Court of Session if, during
the course of inquiry or trial, it appears to him that the case is one which
ought to be tried by the Court of Session. The power under the provision is
thus one of committal and is exercisable by the Magistrate in relation to the
proceedings pending before him.

16. However, the controversy in the present case is not merely whether the
case pending before the Magistrate ought to be committed to the Court of
Session. The petitioners have approached the Sessions Judge with a specific
plea that the two criminal cases arise out of the same incident and constitute
cross-cases and, therefore, should be tried by the same Court. Such a prayer
necessarily requires consideration of the scope of Section 408 Cr.P.C. as
well. Section 408(1) Cr.P.C. provides as follows:-

"408(1) Whenever it is made to appear to a Sessions Judge that an order under
this sub-section is expedient for the ends of justice, he may order that any
particular case be transferred from one Criminal Court to another Criminal
Court in his sessions division."

17. The power conferred under Section 408 Cr.P.C. is wide in nature. The
provision empowers the Sessions Judge to transfer a criminal case from one
Court to another within the Sessions Division whenever such transfer is
considered necessary in the interests of justice. The test under the provision
is whether the proposed transfer would serve the ends of justice.

18. In the considered opinion of this Court, the power under Section 323
Cr.P.C. and the power under Section 408 Cr.P.C. operate in distinct spheres.
Section 323 concerns the power of committal exercisable by a Magistrate,
whereas Section 408 concerns the power of transfer exercisable by the
Sessions Judge. Merely because recourse to Section 323 Cr.P.C. may be
available in a given case, it does not follow that the jurisdiction vested in the
Sessions Judge under Section 408 Cr.P.C. stands excluded.

19. Once an application is presented before the Sessions Judge asserting that
two criminal proceedings arise out of the same incident and constitute cross-
cases, the Sessions Judge is required to examine whether the facts warrant
exercise of powers under Section 408 Cr.P.C. Such examination necessarily
requires consideration of the allegations in both FIRs, the nature of offences

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involved, the stage of proceedings and the possibility of conflicting findings
if the matters are tried by different Courts.

20. The necessity of such examination assumes greater significance where
one case is pending before the Court of the Magistrate and the connected
case is pending before the Special Court constituted under the SC/ST Act.
The plea that both matters arise out of the same occurrence and should be
tried by the same Court cannot be effectively examined without considering
both proceedings together.

21. In the present case, the petitioners had specifically asserted before the
learned Sessions Judge that the two prosecutions arose out of the same
occurrence and constituted cross-cases. The application, therefore, squarely
invoked the jurisdiction of the Sessions Judge under Section 408 Cr.P.C.

22. The learned Sessions Judge, however, did not examine whether the two
cases were in fact cross-cases. No finding has been recorded regarding the
identity of the occurrence, the nature of allegations, or the desirability of a
common trial. The transfer application has been rejected solely on the
ground that the petitioners ought to have approached the learned Magistrate
under Section 323 Cr.P.C.

23. In the opinion of this Court, such an approach cannot be sustained. The
availability of a remedy under Section 323 Cr.P.C. could not by itself furnish
a ground for declining to consider an application otherwise maintainable
under Section 408 Cr.P.C. Once the jurisdiction of the Sessions Judge had
been invoked, it was incumbent upon him to examine whether transfer of the
case was expedient for the ends of justice.

24. The impugned order thus reflects a failure to exercise the jurisdiction
vested in the learned Sessions Judge under Section 408 Cr.P.C. and is liable
to be set aside.

25. Consequently, the impugned order dated 23.05.2025 passed by the
Sessions Judge, Mirzapur is hereby set aside. The matter is remitted to the
learned Sessions Judge, Mirzapur to consider the petitioners? transfer
application afresh on its own merits in accordance with law, keeping in view
the principles governing trial of cross-cases as laid down in Nathi Lal

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and , and after recording a reasoned finding as to
(supra) Sudhir (supra)
whether the two prosecutions arise out of the same occurrence and whether
transfer of one case to the Court where the other is pending would be
expedient for the ends of justice.

26. Accordingly, the writ petition is allowed.

June 17, 2026
SFH
(Garima Prashad,J.)
Digitally signed by :-
SYED FAHIM HUSAIN
High Court of Judicature at Allahabad