A. Hariprasad, J.

Following legal conundrums crop up for adjudication in this appeal :

"Whether an appeal could be maintained under Section 5(i) of the Kerala High Court Act, 1958 (in short, the Act) against an order passed by a Single Judge under Section 407 of the Code of Criminal Procedure, 1973 (in short, Cr.P.C.) either allowing or refusing to transfer a case or appeal from one criminal court to another criminal court in the same Sessions division? Parenthetically, does the High Court exercise original jurisdiction while dealing with a case under Section 407 Cr.P.C. also arises for consideration."

2. This matter comes up before us on a reference by a Division Bench. The Division Bench was of the view that some observations in Balan v. Sivagiri Sree Narayana Dharma Sanghom Trust 2005 (4) KLT 865] rendered by a Full Bench run contrary to the law laid down by a Division Bench in S. Narayanaswami v. Padma [1972 KLT 7] touching on the issue.

3. Short facts relevant for disposal of the case can be summarized thus: Appellant is the 4th accused in a Sessions case. The appellant, along with other accused, stood charge-sheeted for grave offences, including murder. Victim's mother approached this Court with a petition under Section 407 Cr.P.C. for transferring the case from one Additional Sessions Court to another in the same Sessions division. It was contended that after examining 45 witnesses, the learned Additional Sessions Judge, who started the trial, had been transferred to another Court in the same Station, and posted as the First Additional Sessions Judge. 46th witness for the prosecution was examined before the original Court, then presided over by another Judge. Mother of the victim approached this Court requesting transfer of the case to the First Additional Sessions Court, where the judicial officer, who recorded major portion of the evidence, was presiding. Considering nature of the case and other factual and legal aspects, a learned Single Judge of this Court allowed the petition. This appeal is preferred against that order.

4. We heard the learned counsel appearing for the appellant and the learned Public Prosecutor. Both sides submitted that the matter has become infructuous as trial of the case had been completed and judgment had been pronounced by the transferee court as there was no stay of the proceedings. However, we are obliged to answer the reference for concluding the legal issue. Hence, we elaborately considered the points involved in the reference order.

5. For clarity of thought and expression, we deem it appropriate to have a close look at the relevant statutory provisions touching on the issues involved.

6. We shall deal with Section 5 of the Act, which is primarily relevant for entertaining an appeal from a judgment or order of a Single Judge. It reads as follows:

"Appeal from judgment or order of Single Judge- An appeal shall lie to a Bench of two Judges from-

(i) a judgment or order of a Single Judge in the exercise of original jurisdiction; or

(ii) a judgment of a Single Judge in the exercise of appellate jurisdiction in respect of decree or order made in the exercise of original jurisdiction by Subordinate Court.

7. It is pertinent to note that Section 5(ii) of the Act has no application to the facts of this case. On a close scrutiny of Section 5(ii) of the Act, it can be seen that it specifically deals with a judgment of a Single Judge in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of original jurisdiction by any Subordinate Court. Therefore, two things are crystal clear from this provision. Firstly, what is contemplated under Section 5(ii) of the Act is a judgment of a Single Judge passed in the exercise of appellate jurisdiction. Secondly, it should be in respect of a decree or order made in the exercise of original jurisdiction by a Subordinate Court. A Division Bench of this Court in Manual v. Revenue Inspector [1968 KLT 485] has interpreted Sectio