Kerala High Court
Abdul Salam C.H. vs Sameera And Anr. on 4 December, 2006
Equivalent citations: 2007CRILJ1877, 2008(1)KLJ255
Author: J.B. Koshy
Bench: J.B. Koshy, K. Padmanabhan Nair
ORDER J.B. Koshy, J.
1. The petitioner is the accused in C.C. No. 148/2006 on the file of the Judicial First Class Magistrate II, Kannur. The said case was charge sheeted by the Kannur Town Police Station alleging offences punishable under Sections 323, 324 and 506 (II) of Indian Penal Code. Subsequently the defacto complainant preferred a private complaint against the petitioner in respect of the very same incident alleging offences punishable under Sections 307, 324, 326, 452 and 506 (II) of Indian Penal Code. The said private complaint stands committed to the Court of Sessions, Thalassery as per order dated 9-5-2006 and pending as C.P. 22/2006. However, the case charge sheeted by the police, i.e. C.C. No. 148/2006 is still pending before the Judicial First Class Magistrate II, Kannur. Therefore, this Transfer Petition is filed for transferring C.C. No. 148/2006 to the Court of Sessions, Thalassery.
2. When the case came up for admission the learned Single Judge felt that there is conflict with two decisions of this Court (1) Santhosh v. State of Kerala and (2) State of Kerala v. Annamma . In Annamma's case it was held that the High Court has got jurisdiction to direct the Magistrate to commit the case to the Court of Sessions for trial by virtue of the powers conferred on it under Section 407(1)(iii) of Criminal Procedure Code but categorically held that the Court of Sessions has no such power. In Santhosh's case (supra) another learned Single Judge of this Court has held that the Sessions Court and not the High Court is vested with the power to transfer a case pending before the Magistrates Court to the Sessions Court under Section 408(1) read with Section 407(1)(iii) of Cr.P.C. Therefore, in Santhosh's case (supra) the learned Single Judge rejected the application filed under Section 407 of Cr.P.C. holding that since the party has not approached the Sessions Court, they cannot file a transfer application before High Court. There is no dispute to the proposition that case, counter case and connected cases arising out of the same incident are to be tried by the same court on the same day one by one to avoid conflict of decisions. On the facts of this case before us it is admitted that both cases, that is police case and case charged on the basis of private complaint based on the very same set of facts should be tried by the same court. In Sudhir v. State of Madhya Pradesh 2001 AIR SCW 491 it was held by the Apex Court that case and counter case relating to the same incident should be tried by the same court. In that case, case and counter case were committed to the Session Court. Sessions Court found that one of those cases involved offence not exclusively triable by Sessions Court and sent back that case to the Magistrate Court. Supreme Court held that Sessions Court should try both cases as Sessions Court has power to try any offence under Penal Code. Apex Court held as follows:
it is salutary practice, when two criminal cases relate to the same incident, they are tried and disposed of by the same court by pronouncing judgments on the same day.
Apex Court at paragraph 10 it was held the reasons for such a trial as follows:
(1) It staves off the danger of an accused being convicted before his whole case is before the Court. (2) It deters conflicting judgments being delivered upon similar facts; and (3) In reality the case and counter case are, to all intents and purposes, different or conflicting versions of one incident.
In Nathi Lal v. State of U.P. 1990 Gupp. SCC 145 Apex Court prescribed the procedure to be followed in such a situation as follows:
We think that the fair procedure to adopt in a matter like the present where there are cross cases, is to direct that the same learned Judge must try both cross cases one after the other. After the recording of the evidence in one case is completed, he must hear the arguments but he must reserve the judgment. Thereafter he must proceed to hear the cross case and after recording all the evidence he must hear the arguments but reserve the judgment in that case. The same learned Judge must-thereafter dispose of the matters by two separate judgments. In deciding each of the case, he can rely only on the evidence recorded in that particular case. The evidence recorded in the cross case cannot be looked into. Nor can the judge be influenced by whatever is argaed in the cross case. Each case must be decided on the basis of the evidence which has been placed on record in that particular case without being influenced in any manner by the evidence or arguments urged in the cross case. But both the judgments must be pronounced by the same learned Judge one after the other.
It was not held in that case that without a committal order from the Magistrate Court, Sessions Court can try all criminal cases. In that case both cases were already committed to the Sessions Court but Sessions Court sent back one of the connected cases to the Chief Judicial Magistrate and the Hon'ble Apex Court held that such a procedure is wrong and both cases relating to the same incident should be tried by the Sessions Court even if in one case offence charged is not exclusively triable by a Sessions Court.
3. Now we come to the Sections 407 and 408 of Cr.P.C. which we quote below:
407. Power of High Court to transfer cases and appeals: (1) Whenever it is made to appear to the High Court-
(a) that a fair and impartial inquiry or trial cannot be had in any Criminal Court subordinate thereto, or
(b) that some question of law of unusual difficulty is likely to arise, or
(c) that an order under this section is required by any provision of this Code, or will tend to the general convenience of the parties or witnesses, or is expedient for the ends of justice, it may order-
(i) that any offence be inquired into or tried by any Court not qualified under Sections 177 to 185 (both inclusive), but in other respects competent to inquire into or try such offence;
(ii) that any particular case, or appeal, or class of cases or appeals, be transferred from a Criminal Court subordinate to its authority to any other such Criminal Court of equal or superior jurisdiction;
(iii) that any particular case be committed for trial of to a Court of Session; or
(iv) that any particular case or appeal be transferred to and tried before itself.
(2) The High Court may act either on the report of the lower Court, or on the application of a party interested, or on its own initiative:
Provided that no application shall 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 by him.
(3) Every application for an order under Sub-section (1) shall be made by motion, which shall, except when the applicant is the Advocate -General of the State, be supported by affidavit or affirmation (4) When such application is made by an accused person, the High Court may direct him to execute a bond, with or without sureties, for the payment of any compensation which the High Court may award under Sub-section (7).
(5) Every accused person making such application shall give to the Public Prosecutor notice in writing of the application, together with a copy of the grounds on which it is made; and no order shall be made on the merits of the application unless at least-twenty-four hours have elapsed between the giving of such notice and the hearing of the application.
(6) Where the application is for the transfer of a case of appeal from any subordinate Court, the High Court may, if it is satisfied that it is necessary so to do in the interest of justice, order that, pending the disposal of the application, the proceedings in the subordinate Court shall be stayed, on such terms as the High Court may think fit to impose:
Provided that such stay shall not affect the subordinate Court's power of remand under Section 309.
(7) Where an application for an under Sub-section (1) is dismissed, the High Court may, if it is of opinion that the application was frivolous or vexatious, order the applicant to pay by way of compensation to any person who has opposed the application such sum not exceeding one thousand rupees as it may consider proper in the circumstances of the case.
(8) When the High Court orders under Sub-section (1) that a case be transferred from any Court for trial before itself, it shall observe in such trial the same procedure which that Court would have observed if the case had not been so transferred.
(9) Nothing in this section shall be deemed to affect any order of Government under Section 197.
408. Power of Sessions Judge to transfer cases and appeals.--(1) Whenever it is made to appear to a Sessions Judge that an order under this Sub-section is expedient for the ends of justice, he may order that any particular case be transferred from one Criminal Court to another Criminal Court in his sessions division.
(2) The Sessions Judge may act either on the report of the lower Court, or on the application of a party interest or on his own initiative.
(3) The provisions of Sub-sections (3), (4), (5), (6), (7) and (9) of Section 407 shall apply in relation to an application to the Session Judge for an order under Sub-section (1) as they apply in relation to an application to the High Court for an order under Sub-section (1) of Section 407, except that Sub-section (7) of that section shall so apply as if for the words "one thousand" rupees occurring therein, the words "two hundred and fifty rupees" were substituted.
Section 407(1)(iii) of Cr.P.C. gives power to the High Court to direct the Magistrate Court to commit a case for trial to the Sessions Division for simultaneous trial with another Sessions Case pending in that Sessions Division. It is a wide power to be exercised in the interest of justice. Sessions Court has got power under Section 408 to transfer a particular case from a criminal court to another criminal court in that Sessions Division. Neither Section 408 nor any other provision in Cr.P.C. empowers the Sessions Court to call for a case from the Magistrate Court for trial to that Court without a committal order. A reading of Section 407(3) would make it clear that a power akin to Section 407(8) is not vested with the Sessions Court even though Sub-sections (3) to (7) and (9) of Section 407 were made applicable to Sessions Court. However, the question arising for considering is whether it is possible for the High Court to exercise that power before such an application is filed before the Sessions Court as held in Santhosh's case. The proviso to Section 407(2) of Cr.P.C. provides that no application shall 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 by him. It is settled law that before an application can be filed before the High Court for transfer of a case from one court to another court in the same sessions division one has to file an application before the Sessions Court and its rejection by the concerned Sessions Judge is a pre-condition. See Krishna Panicker v. State of Kerala 1981 Crl.LJ. 1973 (Ker.), Radhey Shyam and Anr. v. State of U.P. 1984 (2) Crimes 50 (All.) and Manindra Kumar v. State of Rajasthan 1992 Crl. L.J. 1392 (Raj.) Section 408(1) of Cr.P.C. only gives power to the Sessions Judge to transfer a case pending in one Criminal Court to another Criminal Court in his Sessions Division. However, it does not give power to the Sessions Court to call for a case to that court from the Magistrate Court without formal Committal. Committal of a case from the Magistrate Court to the Sessions Court cannot be equated to transfer under Section 408(1) of Cr.P.C. In the case of a direction to commit a case from the Magistrate Court to Sessions Court the proviso is not a bar in exercising the power of the High Court conferred under Section 407(1)(iii) of Cr.P.C. Therefore, we are in perfect agreement with the decision of the learned Single Judge of this Court in State of Kerala v. Annamma and we are unable to agree with the decision in Santhosh v. State of Kerala .
4. However, we are of the view that the ideal procedure is to file an application before the Magistrate itself by the Public Prosecutor or by the aggrieved party requesting the Magistrate to commit the case under Section 323 of Cr.P.C. to the Sessions Court where the connected case is pending. If the case is not committed by the Magistrate and the aggrieved party files a petition before the Sessions Court for transfer even though Sessions Court has no power to transfer it can dispose of the Transfer Application directing the Magistrate to consider the request to commit the same to the Sessions Court where the connected case is pending. But the aggrieved party can apply to this Court under Section 407(1)(iii) of Cr.P.C. for directing the Magistrate Court to commit a case for trial to the Court of Sessions along with connected cases. We answer the reference accordingly. On the facts of this case we direct the Judicial First Class Magistrate II, Kannur to commit C.C. No. 148/ 2006 to the Court of Sessions, Thalassery for trial along with C.P. No. 22/2006.
Transfer Petition (Criminal) is accordingly allowed.