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37. Aforesaid application dated 05.12.2017, filed by complainant was opposed by accused including present applicant and he, accordingly, filed an objection dated 21.12.2017 (Paper No.70-kha). In opposition to aforesaid application it was pleaded by applicant that application dated 5.12.2017 filed by complainant is not maintainable and is, therefore, liable to be dismissed. According to applicant, Complaint Case No. 1716 of 2016 (Nirmal Singh Garewal Vs. Nitin Jaiswal and others) under Sections 143, 456 and 427 I.P.C., P.S.-Kotwali Bareilly, District-Bareilly, is not the cross version of S.T. No. 123 of 2013 (State Vs. Nirmal Singh Garewal) and Others under Sections 452, 307 IPC P.S.-Kotwali Bareilly, District-Bareilly. Since above mentioned complaint case has not been transferred to Court of Sessions in terms of Sections 323 or 209 Cr.P.C. therefore, trial of complaint case shall not proceed in accordance with section 225 Cr.P.C. There is no provision in Section 225 Cr.P.C. which enables the Court to provide Government Counsel to complainant. Appointment of Government Counsel in a case triable by Court of Sessions is regulated by Section 209 (d) Cr.P.C. As the contingency provided in Section 209 (d) is not attracted in present case, inasmuch as the complaint case has neither been committed to Court of Sessions nor transferred in terms of section 323 Cr.P.C. therefore, prayer made by complaint for providing him with a Government Counsel to conduct the proceedings of complaint case is liable to be rejected.

38. Ultimately, Court below i.e. Additional Sessions Judge, Court No.1, Bareilly, vide order dated 25.01.2018 allowed application (paper no. 70 Kha) filed by complainant Nirmal Singh Garewal. It was, accordingly, directed that proceedings of above mentioned complaint case shall be conducted by Public Prosecutor and same shall proceed in accordance with Chapter XVIII Cr.P.C.

39. Order dated 25.1.2010 was passed by court below on the grounds that Sessions Judge, Bareilly, vide order dated 13.7.2017 has already concluded that S.T. No. 123 of 2013 (State Vs. Nirmal Singh Garewal and Others), under Sections 452, 307 IPC P.S.-Kotwali Bareilly, District-Bareilly, is the cross version of Complaint Case No. 1716 of 2016 (Nirmal Singh Garewal Vs. Nitin Jaiswal and others) under Sections 143, 456 and 427 I.P.C., P.S.-Kotwali Bareilly, District-Bareilly and accordingly directed A.C.J.M. Court No.2 Bareilly to transfer record of complaint case to the Court of Ist Additional Sessions Judge, Bareilly, where above mentioned Sessions Trial is pending. Court below further considered that in the order dated 13.7.2017, passed by Sessions Judge, Bareilly, it has been observed that Apex Court in Sudhir Vs. State of U.P., 2001 (2) SCC 688, and Nathi Lal Vs. State of U.P., 1990 Supp SCC 145 and Kerala High Court in Santosh Vs. State of Kerala (2007) (1) 139 AICLR (Kerala) have held that where the Magistrate does not commit cross case to Court of sessions, then Sessions Judge, by exercising powers under section 408(1) Cr.P.C. can transfer such case to Court of Sessions. It was in the light of aforesaid that transfer application filed by Nirmal Singh Garewal was allowed by Sessions Judge, Bareilly, vide order dated 13.7.2017, as concerned Magistrate refused to exercise jurisdiction under section 323 Cr.P.C. It was then observed that order dated 13.7.2017 passed by Sessions Judge, Bareilly was challenged by accused Nitin Jaiswal, vide Criminal Misc. Application U/S 482 No. 22262 of 2017. Aforesaid application was dismissed by High Court (vide order dated 29.8.2017, quoted above). The High Court in aforesaid order considered the judgement in case of Sudhir and Others Vs. State of U.P., 2001 (2) SCC 688, wherein Apex Court considered the judgement in Nathi Lal's Case and has observed that trial of case and counter case arising out of same incident should be conducted jointly. Supreme Court has further observed that even if one case is not being tried by Court of Sessions then by placing reliance upon judgement in Nathi Lal's Case (Supra) such trial can be conducted by Sessions Judge. It was further observed that when case is committed to Court of Sessions under section 209 Cr.P.C., then consequential trial will be conducted in accordance with Chapter XVIII Cr.P.C. In such cases, Magistrate can exercise powers under section 323 Cr.P.C. and without there being any formal committal to court of Sessions, it can be transferred to Court of Sessions. Thereafter Court discussed the ratio laid down in case of Sudhir (Supra). Ultimately, Court below concluded that in present case, complaint case has not been committed to Court of Sessions by Magistrate by exercising his Jurisdiction under section 323 Cr.P.C. The transfer application was allowed by Session Judge, which order has been affirmed by High Court, vide order dated 29.8.2017 and it was directed that Sessions Trial Case be tried along with complaint case. Against order dated 29.8.2017, Special Leave to Appeal was filed before Apex Court, which was rejected. Thus, Court below came to the conclusion that both the cases are related to each other, as has already been held by High Court. Transfer of complaint case shall be treated to be in alternative of section 323 and shall therefore, be tried in accordance with provisions of Chapter XVIII Cr.P.C. Consequently, by virtue of Section 225 Cr.P.C., public prosecutor has to be entrusted with the conduct of proceedings of complaint case.