IMPORTANT POINTS
Section 9 confers on the High Court all the powers conferred by Chapters XXXI and XXXIII of the Cr.P.C., 1898 on a High Court, as if the Court of Special Judge were a Court of Session trying cases without a jury and within the local limits of the jurisdiction of the High Court-A new criminal court with a name, designation and qualification of the officer eligible to preside over it with powers specified and the particular procedure which it must follow has been set up under the 1952 Act.

ORDER :

1. The petitioner is the investigation officer in RC15/(A)/2017CBI/ACS/Cochin, for offences punishable under section 120B read with section 420 Indian Penal Code and Section 13 (1) (d) of the Prevention of Corruption Act. After completion of investigation, final report was laid before the Special Judge, CBI, Thiruvananthapuram and is now pending trial as CC.No.5/2019 before the Special Judge, CBI, Thiruvananthapuram against the accused. On the basis of a complaint submitted by the Company Secretary of the Company involved in the above case, the second respondent, who is the Sub Inspector of Police, Poojappura Police Station registered Crime No.249/2008 for offences punishable under sections 420 and 406 of the Indian Penal Code against the third accused in RC15/(A)/2017CBI/ ACB/Cochin. After investigation, final report was laid and the matter is pending trial as CC.No.2242/2015 on the file of the ACJM, Thiruvananthapuram.

2. According to the petitioner, the facts stated in CC.No.2242/2015 pending before the ACJM, Thiruvananthapuram and CC.No.5/2019 pending before the Special Judge, CBI, Thiruvananthapuram are identical and are similar. Both cases arise from same set of facts and out of the same incident. There are allegations. of criminal conspiracy and criminal misconduct by the public servant, in the course of commission of the same transaction. Hence, both the matters need to be tried and disposed of by the same Special Judge, CBI, Thiruvananthapuram. Hence, the transfer was sought.

3. The Registry raised an objection that in the light of the proviso to sub section 2 of Section 407 Cr.P.C, Tr.P.(CrI) is not maintainable, unless a transfer petition is made to the Sessions Court and rejected. Though this was answered and after numbering, the matter was placed before this court for consideration. It was felt that the maintainability of the Tr.P.(Crl), in the light of the proviso to sub section 2 of Section 407 Cr.P.C, has to be considered in detail.

4. Heard the learned Special Prosecutor for the petitioner.

5. According to the learned Special Prosecutor for the petitioner, proviso to sub section 2 of Section 407 Cr.P.C, has no application to the facts of the case, on the premise that the ACJM Court, Thiruvananthapuram, though a criminal court in the same sessions division, the Special Court, Thiruvananthapuram, wherein CC.No.5/2019 is pending cannot be considered as a criminal court in the same sessions division of Thiruvananthapuram. Consequently, an application for transfer from the ACJM Court, Thiruvananthapuram to the Special Court, Thiruvananthapuram is not sustainable before the Sessions Court and necessarily, the matter falls within sub section 2 of Section 407 Cr.P.C. The proviso has no application to the facts of the case, it was contended.

6. Proviso to Sub Section 2 of Section 407 of Cr.P.C, provides that an application shall not 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. The contention of the learned Special Prosecutor for the petitioner was that, the Special Judge, CSI, Thiruvananthapuram constituted under the provision of Prevention of Corruption Act cannot be considered as a criminal court "in the same sessions division" as that of the ACJM Court, Thiruvananthapuram and hence the bar under section 407(2) proviso of Cr.P.C will not be attracted.

7. The crux of the issue is whether a Special Court constituted under Section 3 of the Prevention of Corruption Act, vested with powers to try offences under the Prevention of Corruption Act, can be considered as a criminal court falling within the sessions division, wherein it is situated. Section 3 of the Prevention of Corruption Act, empowers the Central Government or the State Government to appoint Special Judges under the Prevention of Corruption Act. It provides that the Central Government or t