Kurian Joseph, J.

Whether a Sessions Judge has power under Section 408 of the Code of Criminal Procedure, 1973 to transfer a case after commencement of trial or a part heard appeal from the court of Additional Sessions Judge to another competent court within the sessions division is the crucial and main question that arises for consideration in this case. Another important question is, whether a litigant as a matter of right can approach the Sessions Judge for invocation of power under Section 409 for withdrawing or recalling a case which is already made over to an Additional Sessions Court. And the third is whether a litigant should necessarily exhaust his remedy before the Sessions Court under Section 408 or 409 before approaching the High Court under Section 407 for the transfer. The matter has been placed before us pursuant to reference made by V. Ramkumar, J.

2. Though several questions are posed in the order, answer to the three points referred to above would cover all the issues. The reference was necessitated since according to the learned Judge, the decision in State of Kerala v. Reny George and others (1981 KLT 557) required reconsideration. It was held in the said decision that an application for transfer of a case can be entertained only in a court of superior jurisdiction. The Court of Sessions Judge not being a court of superior jurisdiction qua that of an Additional Sessions Judge, Narendran, J. In the said decision took the view that invocation of Section 408 of the Code is not possible; the only resort being Section 407 before the High Court. But proviso under Section 407(2) stipulates 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 and application for such transfer has been made to the Sessions Judge and rejected by him.”

In Reny George’s case (supra) the view taken is that the proviso would apply only to cases where the Sessions Judge has power to transfer viz., for transferring cases from and to courts subordinate to the court of a Sessions Judge.

3. To make a minimal reference to the factual situation, the first respondent herein had filed three complaints under Section 138 of the Negotiable Instruments Act against the petitioner (two cases) and his wife (one case) before the Judicial First class Magistrate, Mavelkkara. All the three ended in conviction. Three appeals were preferred before the Sessions Court, Alappuzha as Crl.A.381/03, 13/04 and 77/04. One appeal was made over to the I Additional Sessions Court, Mavelikkara and other appeals were made over to the II Additional Sessions Court, Mavelikkara. Since the subject matter, the issues and evidence in the said three cases are similar in nature and since common questions of law and facts arise in all the three appeals, petitioner sought transfer of one appeal pending before the I Additional Sessions Court, Mavelikkara to the II Additional Sessions court, Mavelikkara to be heard along with two other appeals pending before the said court. In the reference order, the learned Single Judge has posed the question as to whether it was not possible and feasible for the petitioner to approached the Sessions Court under Section 408 of 409 Cr.P.C., for transfer or for recalling the case already made over to one Additional Sessions Judge.

4. In order to understand the scheme of functioning of the criminal courts, we shall refer to the relevant provisions under the Code. Section 9 of the Code provides for the establishment of a Court of Session. Section 9 to the extent relevant reads as follows:-

“9. Court of Session.—(1) The State Government shall establish a Court of Session for every sessions division.

(2) Every court of Session shall be presided over by a Judge, to be appointed by the High Court.

(3) The High Court may also appoint Additional Sessions Judges and Assistant Sessions Judges to exercise jurisdiction in a Court of Session.”

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