Kerala High Court
State Of Kerala vs Annamma on 7 April, 2003
Equivalent citations: 2003(2)KLT763
ORDER G. Sasidharan, J.
1. The question which arises for consideration is whether a case pending on the file of the Magistrate in which there is no allegation regarding commission of any offence exclusively triable by the Court of Session can be sent to the Court of Session for being tried there for the reason that a counter case in respect of the same occurrence in which the allegation is regarding the commission of offence exclusively triable by Court of Session is pending in the Court of Session for trial. Section 193 of the Criminal Procedure Code provides that except as otherwise expressly provided by the Code or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under the Code. The above provision provides that Court of Session can take cognizance of an offence as a Court of original jurisdiction only if the case is committed to it by the Magistrate. Section 209 of the Code provides that when it appears to the Magistrate that the offence is triable exclusively by the Court of Session he shall commit the case to the Court of Session. Since the above provision gives powers to the Magistrate to commit a case to the Court of Session when the offence is exclusively triable by a Court of Session the question which arises for consideration is how can a case in which there is no allegation regarding the commission of an offence exclusively triable by Court of Session be brought before the Court of Session for trial.
2. An application was filed in the Court of Session, Ernakulam for transferring 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 the reason that case has to be tried by the above Assistant Sessions Judge because Sessions Case 216/1998 was pending on the file of that Court and the above Sessions Case and the case which is sought to be transferred arose out of the same incident. The learned Sessions Judge, on observing that there was no doubt that both the cases arose out of the same transaction, found that both the cases have to be tried by the same Court and made an order transferring C.C. 1390/1996 from the Court of Judicial Magistrate of the First Class, Perumbavoor to the Court of the Principal Assistant Sessions Judge, North Paravur. The Assistant Sessions Judge, North Paravur, who got the file in C.C. 1390/1996 on the strength of the order made by the Sessions Judge transferring the case under Section 4Q8 of the Criminal Procedure Code, expressed the doubt that the Sessions Judge was not having the power to try a case in which there is no allegation regarding commission of offence exclusively triable by the Court of Session and sent a report to the Sessions Judge, Ernakulam. The Successor-in-Office of the Sessions Judge, Ernakulam on pointing out that the Assistant Sessions Court does not have competence to take cognizance of the offence and try a calendar case unless it is committed to the Sessions Court, made a request to this Court to issue appropriate directions in the matter and thus, the question came up for consideration of this Court.
3. The procedure to be followed when there are cross-cases is to direct that both the cases have to be tried by the same Judge. The evidence in one case has to be taken and after completing the evidence the arguments in that case have to be heard and the judgment has to be reserved. Thereafter, the Judge will have to proceed to take evidence in the cross-case and after recording of the evidence he must hear the arguments and reserve the judgment in that case also. Both the cases have to be disposed of by two separate judgments. In taking decision in the cases the Judge will have to take decision in each case only on the basis of the evidence taken in that particular case. The evidence taken in the cross-case cannot be taken into consideration for taking a decision in the other case and the Judge should not be influenced by whatever is argued in the cross-ease. Each case has to be decided on the basis of the evidence which has been adduced in that particular case without being influenced in any manner by the evidence or arguments urged in the cross-case. The judgments in both the cases will have to be pronounced one after the other.
4. When there is allegation in a case regarding commission of offence exclusively triable by a Court of Session, the Magistrate can commit the case to the Court of Session under Section 209 of the Criminal Procedure Code. But when there is no allegation in the counter-case regarding the commission of an offence exclusively triable by a Court of Session it is not possible to commit the case under Section 209 of the Criminal Procedure Code because the specific provision is that the case has to be committed to the Court of Session when it appears to the Magistrate that the offence is triable exclusively by the Court of Session.
5. Section 323 of the Criminal Procedure Code also deals with commitment of case to the Court of Session. That provision says that if in any enquiry into an offence or a trial before a Magistrate, it appears to him at any stage of the proceedings before signing judgment that the case is one which ought to be tried by the Court of Session, he shall commit the case to that Court. Section 323 does not say that under that Section a case in which allegation is regarding offence exclusively triable by a Court of Session can be committed under that Section to the Court of Session. Whereas in Section 209 it is said that a Magistrate has to commit a case when it appears to him that the offence is exclusively triable by a Court of Session what is said in Section 323 is that the case has to be committed to the Court of Session when it appears to the Magistrate that the case is one which ought to be tried by the Court of Session. A counter-case in which there is no allegation regarding commission of an offence exclusively triable by a Court of Session is one which ought to be tried by the Court of Session for the reason that a Sessions Case in respect of the same occurrence is pending for trial in the Court of Session. Since the expression used in Section 323 of the Criminal Procedure Code is "the case is one which ought to be tried by the Court of Session" it cannot be said that a case in which allegation is regarding commission of offence exclusively triable by the Court of Session is the case which is mentioned in that section. A case in which there is no allegation regarding commission of an offence triable by the Court of Session also can be committed to Court of Sessions under Section 323 if it appears to the Magistrate in any enquiry into an offence or a trial that the case has to be tried by a Court of Session.
6. In Sudhir v. State of M.P. (2001 SCC (Crl) 387) after emphasising the need for a case and counter-case being tried by the same Court the Supreme Court said that a case in which there is allegation regarding the commission of offence exclusively triable by the Court of Session can be committed under Section 209 of the Code and that the Magistrate has power to commit the other case in which there is no allegation regarding commission of an offence exclusively triable by the Court of Session under Section 323 of the Criminal Procedure Code. The Supreme Court said that the cross-case having no offence exclusively triable by the Sessions Court must appear to the Magistrate as one which ought to be tried by the same Sessions Court and hence the Magistrate can exercise the special power conferred on him by Section 323 of the Code and commit the cross-case also to the Court of Session. Supreme Court went on to say that once both the cases are committed to Court of Session the trial of the cases will have to be conducted as per the provisions contained in Chapter XVIII of the Criminal Procedure Code.
7. Section 407 of the Criminal Procedure Code deals with the power of the High Court to transfer cases and appeals. Section 407(1)(c) says that whenever it is made to appear to the High Court that an order under that section is required by any provision of the Code, or will tend to the general convenience of the parties or witnesses, or is expedient for the ends of justice, the Court may make an order as provided in that section. Section 407(1)(iii) says that the High Court may order that any particular case be committed for trial to a Court of Session. It is clear from a reading of Section 407(1) that whenever it is made to appear to the High Court that it is expedient for the ends of justice that any particular case be committed for trial to a Court of Session, High Court can do that. A counter-case in which there is no allegation regarding commission of any offence exclusively triable by Court of Session is one which has to be tried by the Court of Session where the other case in which there is allegation regarding commission of offence exclusively triable by the Court of Session is pending and it is expedient for the ends of justice that both the cases are tried by the same Court. In such a situation, the High Court gets the power under the provision mentioned above to make an order that the case in which there is no allegation regarding commission of offence exclusively triable by Court of Session has to be committed for trial to the Court of Session. In the above provision also there is no mention that an order that a case has to be committed for trial to the Court of Session can be made by the High Court only if there is allegation regarding commission of offence exclusively triable by the Court of Session. On the other hand, what is said is that the High Court may order that any particular case may be committed for trial to a Court of Session.
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. The Magistrate will proceed with the case in accordance with law and commit the case to the Court of Session, Ernakulam.