Back
2011(3) Crimes 21 (Ker.)
KERALA HIGH COURT
V.K. Mohanan, J.
Suo Motu —Petitioner
versus
State of Kerala —Respondent
Criminal R.P. No. 3079 of 2010
Decided on 1.11.2010
Held: In the light of the above Division Bench decision, it is crystal clear that all the powers enjoined by the High Court under Section 407are not given to Sessions Court under Section 408 of Cr.P.C. In Abdul Salam’s case, the Division Bench has specifically found that Section 407(1)(iii) gives power to the High Court to direct the Magistrate to commit the case for trial to the Sessions division for simultaneous trial with another sessions case pending in that Sessions division. Thus it can be seen that the caption of Sections 407 and 408 of Cr.P.C. are though similarly worded with respect to the powers of the High Court as well as of the Sessions Court, the power of High Court to transfer a case or appeal is wider than the powers of the Sessions Court. On a close reading of the above sections, it can be seen that, the power of a Sessions Court to transfer a case or an appeal is limited to cases or appeals which are properly instituted. So, by virtue of Section 408 of Cr.P.C., transfer of any appeal or case properly instituted and pending before any subordinate court to that Sessions court, can be transferred to another subordinate Criminal Court which has same jurisdiction. But regarding the powers of High Court to transfer the case or appeal, especially in the light of sub-clauses (i) to (iv) series, sub-section (1) of Section 407, it can be seen that even the cases covered by those clauses can also be amenable to the jurisdiction of the High Court for transfer. Most important example is the one which is pointed out by the Division Bench in the Abdul Salam’s case. By virtue of Section 407(1)(iii) of Cr.P.C., even if a case is pending before the Magistrate court and if it appears to the High Court that it should be transferred to the Sessions Court and to effect that transfer properly, the High Court can direct the Magistrate to commit the case as contemplated by Section 193 of Cr.P.C. or under Section 323 of Cr.P.C. But as far as Sessions Courts are concerned, no such powers are given while exercising the jurisdiction to transfer a case or appeal. So in the present case, the order dated 19.6.2010 in Crl.M.P.1264/10 of the Court of Sessions, Palakkad Division, is illegal and irregular and Section 408 of Cr.P.C. confers no jurisdiction on the Sessions Court to transfer a case wherein the offences involved are triable by the Magistrate Court, directly to the Additional Sessions (Ad hoc I), Palakkad, without adopting the process contemplated under Section 209 of CrPC and on the basis of the said order of the learned Sessions Judge, the Court of Additional Sessions Judge (Ad Hoc I ), Palakkad, has no jurisdiction to take cognizance with respect to the offences covered by the connected case pending before the Court of Judicial First Class Magistrate Alathur, in view of the bar contained under Section 193 of CrPC. (Para 11)
ORDER
V.K. Mohanan, J.—This suo motu revision is registered on the basis of the letter dated 20.7.2010 of the Palakkad District Court, addressing the Registrar (Subordinate Judiciary), High Court of Kerala. The short facts which lead to the registration of the above Revision Petition is as follows:
2. One Parameswaran, S/o Krishnan, Pothuvar House, Vithinassery, Nemmara, Palakkad District, who is an accused in S.C.No.493/09, approached the Sessions Court, Palakkad Division by filing Crl.M.P.No.1264/10 with a prayer to transfer C.C.No.258/08 pending in the Court of Judicial First Class Magistrate Alathur, the case in which he is the de facto complainant, for simultaneous trial along with S.C.No.493/09. According to the revision petitioner therein, the above two cases are related to the same incident and at the same time and place, in the same transaction.
3. On the filing of the above petition, the Sessions Court obtained a report from the police through the public Prosecutor in which it is stated that C.C.No.258/08 pending, before the Judicial First Class Magistrate Alathur, is counter to S.C.No.493/09, pending before the Additional Sessions Court (Ad hoc)I, Palakkad. The said petition for transfer was not opposed by anybody. According to the learned Session Judge, the two cases, being case and counter, must be simultaneously tried and disposed by the same Judge and since one case is pending in the Sessions Court, the other case pending before the Court of Magistrate, is liable to be transferred to the Additional Sessions Court in exercising the powers under Section 408 of Cr.P.C. Accordingly, the learned Sessions Judge allowed the petition directing the Judicial First Class Magistrate, Alathur to transfer CCNo. 258 of 2008 pending there, to the Court of Additional Sessions Judge (Ad hoc) I, Palakkad, for simultaneous trial with S.C.No.493/09. Consequently, it is directed that the learned Magistrate shall transmit the records to the Court of learned Additional Sessions Judge, Palakkad.
4. In pursuance of the above order of the learned Sessions Judge, the learned Magistrate issued two orders on 1.7.2010 in C.C.No.258/08. First order is as follows:
“Heard accused, reported counsel that CrI.M.P1264/2010 dated 19.6.2010 of Honourable Sessions Judge, Palakkad, case transferred to Addl. Sessions Court, Palukkad. Hence send records to Honourable Additional Sessions Court No.1, Palakkad.”
The other order on the same day is as follows:
“Converted as C.P.No.51/10. The case is transmitted to the Honourabe Additional Sessions Court (Fast Track Court) No.1, Palakkad, vide order in Crl. M.P. No. 1264/2010 dated 19.6.2010 of Honourable Sessions Judge at Palakkad. Hence case committed to Honourable Additional Sessions Court (Fast Track No.1) as directed.”
5. Thus, against the above order of the learned Sessions Judge and the proceedings of the learned Magistrate, the Additional District & Sessions Judge (Ad hoc I), Palakkad, addressed the Registry of this Court stating that, the learned Magistrate has simply converted the case into a committal proceedings and numbered as C.P.No.51/2010 and transmitted the case to the Additional Sessions Court, without the order of committal of this case to the Sessions Court. Palakkad, and thus it is a grave legal infirmity. Thus relying upon the decision of this Court reported in State of Kerala v. Annamma & Ors.1 the learned Addl. District and Sessions Judge filed a report, stating that the matter may be submitted before and to set aside the order passed by the learned Sessions Judge-Palakkad, under Section 408 of Cr.P.C., in transferring C.C.No.258/08 (C.P.No.51/2010) from the Judicial First Class Magistrate Alathur to the Addl. Sessions Court (Ad hoc) I, Palakkad.
6. While forwarding the above report of the Addl. District and Sessions Judge (Ad hoc)-I, Palakkad, the District Judge. Palakkad, in his letter dated 20.7.2010 recorded his remark that, he issued the transfer order on the following grounds that,
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
