IMPORTANT POINT
Joint trials are permissible for different offences from the same transaction, but jurisdictional limitations prevent direct transfer to a Special Court without prior commitment to the Sessions Court.

ORDER :

This is a petition filed under Section 407 of the Code of Criminal Procedure, 1973 (the Code). Transfer of C.C.No.2242 of 2015 pending before the Court of additional Chief Judicial Magistrate, Thiruvananthapuram to the Court of Enquiry Commissioner and Special Judge, Thiruvananthapuram is sought. The purpose of transfer is to try that case along with C.C.No.5 of 2019 pending before the Special Court. The investigation officer in C.C.No.5 of 2019 is the petitioner.

2. The petitioner would contend that the facts based on which initiated both the cases are the same. In regard to the same incident both the cases arose. Witnesses to be examined and documents to be referred in both cases shall also be more or less the same. Therefore, trial of the cases in parallel will cause injustice to the witnesses and would be a reason for delay. Only difference being the offences involved, a joint trial of both the cases is in the interest of justice. Accordingly the petitioner seeks to order transfer of C.C.No.2242 of 2015 from the Court of additional Chief Judicial Magistrate, Thiruvananthapuram to the Special Court (CBI), Thiruvananthapuram.

3. Heard the learned Standing Counsel for the CBI, the learned Senior Public Prosecutor, and the learned counsel for respondent Nos.3 and 5.

4. The learned counsel for respondent No.5 raised a contention regarding maintainability of the petition for the reason that the petitioner did not first approach the Sessions Court, Thiruvananthapuram for an order of transfer under Section 408 of the Code. The proviso to Sub-section(2) of Section 407 of the Code bars filing of a petition before 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 by him. Here, both courts are at Thiruvananthapuram and therefore it was contended that the petitioner should have first approached the Sessions Court, Thiruvananthapuram.

5. The question of maintainability was considered by this Court owing to an objection raised by the Registry at the time of filing of this petition. This Court after hearing both sides, held as per the order dated 16.12.2019 ( Additional Superintendent of Police, CBI, Cochin v. State of Kerala and Another [2020 (1) KLT 631] ) that an application for transfer of a case pending before a Court within a sessions division to a Special Court constituted under Section 3 of the Prevention of Corruption Act, 1988 (PC Act) or vice versa would not lie to the Sessions Court of that sessions division, but only to the High Court. Therefore, the said question does not survive for consideration.

6. The offences alleged in C.C. No.5 of 2019 pending before the Special Court are punishable under Section 120B read with 409 and 420 of the Indian Penal Code, 1860 and Section 13(1)(c) and (d) r/w Section 13(2) of the PC Act. There are 8 accused in that case, one among them is Sri.Rajesh Narayanan. He is the sole accused in C.C. No.2242 of 2015 pending before the Court of additional Chief Judicial Magistrate, Thiruvananthapuram. The offences in that case are punishable under Sections 406 and 420 of the IPC . Although offences are different, both those cases are regarding the same incident.

7. The core allegations forming the basis of accusation are the following:

M/s. Hindustan Latex Limited decided to export mercantile products. For this purpose, it floated a tender to purchase iron ore. Eventually HLL decided to purchase iron ore from M/s.Rama Shipping Services, Bangalore, Chief Executive Officer of which is Sri.Rajesh Narayanan, the common accused. Rs.2 crores was paid to M/s.Rama Shipping Services in advance towards the cost of iron ore. M/s.Rama Shipping Services and its Chief Executive Officer did not supply iron ore as agreed. The security obtained concerning the said transaction was 2 post dated cheques alone. Since M/s.Rama Shipping Services violated the contract