Point of Law: Section 408(1) of Cr.P.C., only gives power to Sessions Judge to transfer a case pending in one criminal Court to another criminal Court in his Sessions Division.

JUDGMENT :

In this petition filed under section 407 of Cr.P.C., petitioner has prayed to transfer C.C.No.23250/2018 pending on the file of the II Additional Chief Metropolitan Magistrate, Bengaluru City to the Court of LXX Additional City Civil and Sessions Judge, Bengaluru City and to try the said case along with Spl C.C.No.35/2018.

2. Petitioner is the first informant in Crime No.200/2017 registered at Jayanagar Police Station against one Raghavendra, in respect of an incident which took place at about 12.30 p.m. on 10.07.2017, which culminated in filing of chargesheet against the said accused for offences punishable under Section 341, 324, 504 and 506 of IPC. The offences alleged being triable by the learned Magistrate, the said case numbered as C.C.No.23250/2018 is pending on the file of the II Additional Chief Metropolitan Magistrate, Bengaluru City.

3. It is not in dispute that with regard to the very same incident which took place on 10.07.2017 a counter complaint was lodged by the respondent herein against the petitioner and his father, which was registered in Crime No.201/2017 of Jayanagar Police Station. On completion of investigation the police have filed chargesheet against the petitioner and his father for offences punishable under Sections 323, 324 of IPC and Section 3(1)(r), 3(1)(s) of the SC/ST (Prevention of Atrocities) Act,1989 (SC/ST Act, for short). Since the offences under the SC/ST Act are triable by the Special Court, the chargesheet was filed before the Special Court, numbered as Special Case No.35/018 and the same is pending before the LXX Additional City Civil and Sessions Judge, Bengaluru City.

4. Since both the cases arise out of a case and counter case, the petitioner herein preferred a petition under Section 407 of Cr.P.C. before this Court in criminal petition No.8468/2019. It is submitted by the learned counsel for petitioner that the said petition was withdrawn with a liberty to the petitioner to approach the learned Sessions Judge with an appropriate application. Thereafter, the petitioner approached the Sessions Court under Section 408 of Cr.P.C. in Criminal Misc No.4647/2021. The said petition was dismissed vide impugned order dated 19.11.2021.

5. One of the grounds for dismissal of the petition by the learned Sessions Judge was that Section 408(1) of Cr.P.C., only gives power to the Sessions Judge to transfer a case pending in one criminal Court to another criminal Court in his Sessions Division, but it does not give power to Sessions Court to call for a case to that Court from the Magistrate Court without formal committal.

6. It is the contention of the learned counsel for respondent that the petitioner ought to have made an application under Section 323 of Cr.P.C., for committal of the case now pending before the learned Magistrate to the Special Court. As rightly contended by the learned counsel for the petitioner, the said provision gives power to the learned Magistrate to commit a case when the learned Magistrate is of the opinion that the said case is exclusively triable by the Court of Sessions. The case which is now pending before the learned Magistrate is triable by himself and not by the learned Sessions Judge.

7. In the case on hand, it is not in dispute that both the cases, one which is pending before the learned Magistrate and one which is pending before the Special Court arises out of a case and counter case. In such a situation, it is useful to refer to the decision of the Hon’ble Apex Court in the case of ‘State of M.P. vs. Mishrilal and others’ reported in (2003) 9 Supreme Court Cases 426 relied upon by the learned counsel for petitioner. In the said decision, the Apex Court has referred to a decision in Nathi Lal vs. State of U.P. reported in 1990 Supp SCC 145, wherein it has been held as under:

“the fair procedure to adopt in a matter like the present where there are crosscases, “is to direct that the same learned judge must try both the crosscases one after the other. After the