Point of Law:
(1) Section 193 of the Code is very clear. A Court of Session has no power to take cognizance of an offence except as provided in the Code
(2) Sessions Judge had no power to transfer a case pending before the Magistrate Court to the Sessions Court under Section 408(1) of the Cr.P.C

ORDER :

This is a Suo Motu revision registered under Section 397(1) of the Code of Criminal Procedure, herein after referred to as the code, on the basis of a communication received from the Principal Sessions Judge, Ernakulam. The fact of the case are as follows: A case as S.C.No.326/2014 is pending before the Assistant Sessions Court, Perumbavoor. While so one Bindu, who is CW1 in C.C.No.436/2015 pending before the Judicial First Class Magistrate-I, Perumbavoor moved Crl.M.P (Transfer) No.2274/2017 before the Sessions Court, seeking jurisdiction under Section 408(1) of the Code, praying to transfer the case to the Assistant Sessions Court, enabling simultaneous trial with the counter case, that is S.C.No.326/2016. The learned Additional Sessions Judge-VII, Ernakulam who considered the application, by order dated 24.11.2017, allowed the same and directed the Judicial First Class Magistrate-I, Perumbavoor to transfer C.C.No. 436/2015 to the Assistant Sessions Court, Perumbavoor. On receipt of the records, learned Assistant Sessions Judge, Perumbavoor addressed the Sessions Judge by communication dated 29.01.2021 acknowledging the receipt of the records in C.C.No.436/2015, but informing that a Sessions Case number was not assigned to C.C.No.436/2015. Then the Sessions Judge smelt the impropriety of the order and thus referring to the decision in State of Kerala v. Annamma [2003 KHC 490] addressed this Court stating that such a transfer is illegal and therefore, requested this Court to place the matter on the judicial side treating as a reference under Section 397 of the Cr.P.C. Thus the matter was taken up on the administrative side and on the basis of an order, this Suo Motu revision was registered.

2. I have no doubt that the order dated 24.11.2017 of the Additional Sessions Judge, Ernakulalm is improper and illegal. The Sessions Judge had no power to transfer a case pending before the Magistrate Court to the Sessions Court under Section 408(1) of the Cr.P.C. Offence alleged in the Calendar Case are under Sections 143, 147, 148, 451, 294(b), 323 read with Section 149 of the IPC. Section 193 of the Code is very clear. A Court of Session has no power to take cognizance of an offence except as provided in the Code. In the nature of the allegations in the case in question, unless committed to it by a Magistrate under the Code, the Sessions Court does not get jurisdiction. The following dictum in Annamma, quoted supra, on identical facts would make matters clear:

“8. The power of the High Court to pass an order under Section 407(1)(iii) of the Criminal Procedure Code is not limited in its scope only to cases triable by the Court of Session. The High Court alone can exercise the power under the above provision of the Criminal Procedure Code and the Court of Session has no such power to direct the commitment of a case pending in a subordinate Magistrate Court to the Sessions Court. The High Court can exercise that power in respect of any type of criminal case.

9. In the present case the Sessions Judge transferred C.C. 1390/1996 on the file of the Judicial Magistrate of the First Class, Perumbavoor to the Court of the Principal Assistant Sessions Judge, North Paravur for trial. The reason given in the order of transfer is that the case which was transferred was one which had to be tried by the Assistant Sessions Judge, North Paravur as a cross-case of Sessions Case 216/1998. The Assistant Sessions Court, North Paravur does not get the power to try the case on being transferred to that Court by the Sessions Judge from the Court of the Magistrate. There will have to be an order committing the case to the Court of Session from where it has to be made over to the Court of Principal Assistant Sessions Judge, North Paravur where the Sessions case is pending. The order of the Sessions Judge, Ernakulam in Crl.M.P. 459/1999 is set aside. The records of C.C. 1390/1996 will be sent back to the Judicial Magistrate of the First Class, Perumbavoor. Th