1. In this petition filed under Section 407 Cr. P.C, the petitioner/ accused seeks to transfer Sessions Case No.432 of 2013 from the Court of VI Additional District and Sessions Judge, Siddipet wherein the trial is under way to the Court of Principal District Judge, at Sangareddy, Medak District.

2. The petitioner/accused is facing the charge under Sec.302 I.P.C on the accusation that suspecting the fidelity of his wife—Rajitha he killed her by inflicting injuries with an axe. The case is undergoing trial before the learned VI Additional District and Sessions Judge, Siddipet and PW.1 was examined. At this stage, the petitioner filed the present transfer application mainly casting aspersions on the attitude of the learned Presiding Officer which according to the petitioner/accused is biased towards him. In this context, he narrated certain instances in his transfer application. Precisely they are:

i) Though PW.1 did not specifically depose the contents of Ex.P.1 and 161 Cr.P.C statement, the Presiding Officer suggested the contents inspite of the objections raised by learned counsel for accused.

ii) During the cross-examination of PW.1, when important points which are favourable to the defence side are sought to be elicited through PW.1 by the defence counsel, the Presiding Officer interdicted and told PW.1 not necessary to answer and did not record the answers. Similarly, when the defence counsel sought to elicit the events that took place prior to the marriage of the deceased and accused and the attitude of the deceased towards him and her relation with one Nalla Ravinder etc., the Presiding Officer suggested PW.1 not necessary to answer the questions and did not record the answers.

iii) When the defence counsel sought to prove the alibi plea through PW.1, Presiding Officer raised objection in high voice stating as if the accused was guilty of causing murder of his wife.

Apart from above, the petitioner/accused mentioned some other instances of Presiding Officer making unwarranted intrusion in trial. Thereby, he felt that fair trial may not be conducted and he may not be able to establish h is defence. On this ground, he sought for transfer of the case. He relied upon the following decisions:

i) State of W.B vs. Gangadhar Dawn and others (1989 Cri.L.J. 563 (Calcutta)

ii) Musa Mahammad Malek vs. State of Gujarat (1994 Law Suit (Guj) 346)

iii) In re: Smt. Tarulata Kala (1997 Cri.L.J 1401 (Calcutta)

3) Heard both sides.

4) Learned Public Prosecutor opposed the transfer application.

5) The point for determination is:

“Whether there are merits in this petition to allow?”

6. POINT: During the course of hearing, it came to the notice of this Court that the petitioner/accused has filed the transfer application straightaway before the High Court without filing similar application before the Sessions Court in compliance with the proviso to sub-section(2) of Section 407 Cr.P.C. The said proviso reads thus:

“The High Court may act either on the report of the lower Court, or on the application of a party interested, or on its own initiative:

Provided that no application shall lie to the High Court for transferring a case from one Criminal Court to another Criminal Court in the same sessions division, unless an application for such transfer has been made to the Sessions Judge and rejected by him.”

a) When the maintainability of the transfer application before High Court in the light of the restriction imposed under the proviso is brought to the notice of the petitioner, it was argued that in view of Section 409(2) Cr.P.C, the Sessions Court cannot entertain a transfer application and transfer the case once the trial is commenced before the concerned Court and as in the instant case, trial was already commenced and the evidence of PW.1 was completed, the petitioner could not file the transfer application before the Sessions Court and hence he directly approached the High Court.

b) On a keen perusal of Sections 407, 408 and 409 Cr.P.C, I am afrai