Kerala High Court
Suo Motu vs State Of Kerala on 1 November, 2010
Author: V.K.Mohanan
Bench: V.K.Mohanan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 3079 of 2010()
1. SUO MOTU.
... Petitioner
Vs
1. STATE OF KERALA.
... Respondent
For Petitioner :....
For Respondent : No Appearance
The Hon'ble MR. Justice V.K.MOHANAN
Dated :01/11/2010
O R D E R
V.K.MOHANAN, J.
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Crl. R.P.No.3079 of 2010
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Dated this the 1st day of November, 2010.
O R D E R
This suo motu revision is registered on the basis of the letter dated 20.7.2010 of the Palakkad District Court, addressing the Registrar (Subordinate Judiciary), High Court of Kerala. The short facts which lead to the registration of the above revision petition is as follows :-
2. One Parameswaran, S/o.Krishnan, Pothuvar House, Vithinassery, Nemmara, Palakkad District, who is an accused in S.C.No.493/09, approached the Sessions Court, Palakkad Division by filing Crl.M.P.No.1264/10 with a prayer to transfer C.C.No.258/08 pending in the Court of Judicial First Class Magistrate-Alathur, the case in which he is the defacto complainant, for simultaneous trial along with S.C.No.493/09.
According to the revision petitioner therein, the above two cases are related to the same incident and at the same time and place, in the same transaction.
2 Crl. R.P.No.3079 of 2010
3. On the filing of the above petition, the Sessions Court obtained a report from the police through the Public Prosecutor in which it is stated that C.C.No.258/08 pending before the Judicial First Class Magistrate-Alathur, is counter to S.C.No.493/09, pending before the Addl. Sessions Court (Ad hoc)-I, Palakkad. The said petition for transfer was not opposed by anybody. According to the learned Sessions Judge, the two cases, being case and counter, must be simultaneously tried and disposed by the same judge and since one case is pending in the Sessions Court, the other case pending before the Court of Magistrate, is liable to be transferred to the Addl. Sessions Court in exercising the powers u/s.408 of Cr.P.C. Accordingly, the learned Sessions Judge allowed the petition directing the Judicial First Class Magistrate-Alathur to transfer C.C.No.258/08 pending there, to the Court of Addl. Sessions Judge (Adhoc)-I, Palakkad, for simultaneous trial with S.C.No.493/09. Consequently, it is directed that the learned Magistrate shall transmit the records to the Court of learned Addl. Sessions Judge, Palakkad.
3 Crl. R.P.No.3079 of 2010
4. In pursuance of the above order of the learned Sessions Judge, the learned Magistrate issued two orders on 1.7.2010 in C.C.No.258/08. First order is as follows :-
" Heard accused, reported counsel that
Crl.M.P.1264/2010 dated 19.6.2010 of
Honourable Sessions Judge, Palakkad, case
transferred to Addl. Sessions Court, Palakkad.
Hence send records to Honourable Addl.
Sessions Court No.I, Palakkad."
The other order on the same day is as follows :-
" Converted as C.P.No.51/10. The case is transmitted to the Honourable Addl. Sessions Court (Fast Track Court) No.I, Palakkad, vide order in Crl.M.P.No.1264/2010 dated 19.6.2010 of Honourable Sessions Judge at Palakkad. Hence case committed to Honourable Addl. Sessions Court (Fast Track No.I) as directed."
5. Thus, against the above order of the learned Sessions Judge and the proceedings of the learned Magistrate, the Addl. District & Sessions Judge (Ad hoc-I), Palakkad, addressed the Registry of this court stating that, the learned Magistrate has simply converted the case into a committal proceedings and numbered as C.P.No.51/10 and transmitted the case to the Addl. Sessions Court, without the order of committal of this case 4 Crl. R.P.No.3079 of 2010 to the Sessions Court, Palakkad, and thus it is a grave legal infirmity. Thus relying upon the decision of this court reported in State of Kerala Vs. Annamma & Ors. {2003 (1) KLJ 880 (2003 (2) KLT 763)}, the learned Addl. District & Sessions Judge filed a report, stating that the matter may be submitted before the High Court for reference and to set aside the order passed by the learned Sessions Judge-Palakkad, u/s.408 of Cr.P.C., in transferring C.C.No.258/08 (C.P.No.51/10) from the Judicial First Class Magistrate-Alathur to the Addl. Sessions Court (Ad hoc)-I, Palakkad.
6. While forwarding the above report of the Addl. District & Sessions Judge (Ad hoc)-I, Palakkad, the District Judge, Palakkad, in his letter dated 20.7.2010 recorded his remark that, he issued the transfer order on the following grounds that, " Fast Track Court is a separate Adhoc Court which can be considered as a Criminal Court for the purpose of Section 408 Cr.P.C., though presided over by an Addl. Sessions Judge and Section 193 of Cr.P.C. does not contain a total bar of direct cognizance-cognizance otherwise than on committal proceedings can be taken by the Sessions Court if it is otherwise provided in 5 Crl. R.P.No.3079 of 2010 the Code of Criminal Procedure".
Thus, according to the learned Sessions Judge, it is so provided in Section 193 of Cr.P.C. itself and it can be read along with Section 408 of Cr.P.C. and according to him, the case transferred by his order does not involve any offence exclusively triable by Court of Sessions and it is only a counter case to the sessions case. It is under the above circumstances the revision petition was registered in suo motu.
7. Admittedly, though the sessions case No.493/09 pending before the Addl. Sessions Court (Ad hoc)-I, Palakkad and C.C.No.258/08, which was pending in the Court of Judicial First Class Magistrate-Alathur, are arising out of the same incident, at the same time and place in the same transaction. Regarding the trial of the case and counter case, the position is settled as per the decision of the apex court in Sudhir & Ors. Vs. State of Madhya Pradesh (2001 AIR SCW 491) and the apex court has held that, 'the case and counter case relating to same incident shall be tried in the same court'. In the above 6 Crl. R.P.No.3079 of 2010 decision, the apex court has further held that, Sessions Court should try both the cases, as Sessions Court has power to try any offence under Penal Code and according to the apex court, "it is a solitary practice if two criminal cases relates to the same incident, they are tried and disposed of by the same court by pronouncing the judgment on the same day." The apex court came into such a conclusion for the following reasons that,
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 the counter case are, to all intents and purposes, different or conflicting versions of one incident."
8. So in the light of the above decisions and as the above two cases are arising out of the same transaction, it has to be treated as case and counter and therefore tried and disposed of by the same judicial mind as well as by the same court. 7 Crl. R.P.No.3079 of 2010
9. If that be so, the next question to be considered is based upon the facts and circumstances involved in the present case, 'what is the procedure to be followed to achieve the object laid down by the apex court in the above decisions ?'. The answer to the above question is now well settled by the Division Bench decision of this court in, Abdul Salam Vs. Sameera (2007(1) KLT page 592). The facts involved in the above Division Bench cases are identical to the case-in-hand. The facts involved in that case can be gathered from para 1 of the above decision. In that case also, with respect to the same incident there were two cases ; one was pending before the Judicial First Class Magistrate-II, Kannur, as C.C.No.148/06 where the offences alleged are u/s.323, 324 and 506(2) of IPC. The defacto complainant in the above cases subsequently filed a private complaint alleging offences punishable u/s.307, 324, 326, 452, 506(2) of IPC and the said private complaint was committed to the Court of Sessions, Thalassery. As the two cases are pending before the two courts, a transfer petition was 8 Crl. R.P.No.3079 of 2010 filed before this Court for transfer of C.C.No.148/06 to the Court of Sessions-Thalassery. After considering the authorities on the field and various provisions, the Division Bench of this court has held as follows :-
"S.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 S.408 to transfer a particular case from a criminal court to another criminal court in that Sessions Division. Neither S.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 S.407(3) would make it clear that a power akin to S.407(8) is not vested with the Sessions Court even though sub-ss.(3) to (7) and (9) of S.407 were made applicable to Sessions Court. However, the question arising for consideration 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 S.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 9 Crl. R.P.No.3079 of 2010 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 & Anr. v. State of UP. (1984(2) Crimes 50 (All.) and Manindra Kumar v. State of Rajasthan (1992 Crl.LJ.1392 (Raj.)) S.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 S.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 S.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 (2003 (2) KLT 763) and we are unable to agree with the decision in Santhosh v. State of Kerala (2006 (3) KLT 439)."
10. On examination of the procedure adopted by the courts below in the present cases and in the light of the above dictum, it can be seen that, the proceedings of the court of Sessions, Palakkad, and the learned JFCM Court-Alathur, are irregular, 10 Crl. R.P.No.3079 of 2010 improper and illegal.
11. In the light of the above Division Bench decision, it is crystal clear that all the powers enjoined by the High Court u/s.407 are not given to Sessions Court u/s.408 of Cr.P.C. In 'Abdul Salam's' case, the Division Bench has specifically found that S.407(1)(iii) gives power to the High Court to direct the Magistrate to commit the case for trial to the Sessions division for simultaneous trial with another sessions case pending in that Sessions division. Thus it can be seen that the caption of S.407 and 408 of Cr.P.C. are though similarly worded with respect to the powers of the High Court as well as of the Sessions Court, the power of High Court to transfer a case or appeal is wider than the powers of the Sessions Court. On a close reading of the above sections, it can be seen that, the power of a Sessions Court to transfer a case or an appeal is limited to cases or appeals which are properly instituted. So, by virtue of S.408 of Cr.P.C., transfer of any appeal or case properly instituted and pending before any subordinate court to that Sessions court, 11 Crl. R.P.No.3079 of 2010 can be transfered to another subordinate criminal court which has same jurisdiction. But regarding the powers of High Court to transfer the case or appeal, especially in the light of Sub-clauses
(i) to (iv) series, sub-section (1) of S.407, it can be seen that even the cases covered by those clauses can also be amenable to the jurisdiction of the High Court for transfer. Most important example is the one which is pointed out by the Division Bench in the 'Abdul Salam's' case. By virtue of S.407(1)(iii) of Cr.P.C., even if a case is pending before the Magistrate court and if it appears to the High Court that it should be transferred to the Sessions Court and to effect that transfer properly, the High Court can direct the Magistrate to commit the case as contemplated by S.193 of Cr.P.C. or u/s.323 of Cr.P.C. But as far as Sessions Courts are concerned, no such powers are given while exercising the jurisdiction to transfer a case or appeal. So in the present case, the order dated 19.6.2010 in Crl.M.P.1264/10 of the Court of Sessions, Palakkad Division, is illegal and irregular and S.408 of Cr.P.C. confers no jurisdiction on the Sessions Court to transfer a case wherein the offences 12 Crl. R.P.No.3079 of 2010 involved are triable by the Magistrate Court, directly to the Addl. Sessions (Ad hoc-I), Palakkad, without adopting the process contemplated u/s.209 of Cr.P.C. and on the basis of the said order of the learned Sessions Judge, the Court of Addl. Sessions Judge (Ad hoc-I), Palakkad, has no jurisdiction to take cognizance with respect to the offences covered by the connected case pending before the Court of Judicial First Class Magistrate-Alathur, in view of the bar contained u/s.193 of Cr.P.C.
12. On a reading of S.193 of Cr.P.C. it can be seen that, "the Sessions Court can not take cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under the provisions of the Code of Civil Procedure or otherwise provided in Cr.P.C. or by any other law for the time being in force". The grounds mentioned by the learned Sessions Judge justifying his order, appear to be incorrect and not tenable, since the same is totally against the provisions contained in S.193 of Cr.P.C. By virtue of Section 4 and 5 of Cr.P.C. and in view of S.193 of Cr.P.C., the Sessions 13 Crl. R.P.No.3079 of 2010 Court will get original jurisdiction to take cognizance of any offence only on the basis of special provisions contained any special enactment. So in the absence of any special enactment conferring original jurisdiction for taking cognizance and without the procedure contemplated u/s.209 or 323 of Cr.P.C., no Sessions Court can take cognizance of any offence. In the light of the above provisions and the limitations of the Sessions Court, the learned Sessions Judge ought to have dismissed the petition for transfer, by rendering a speaking order or the case ought to have been referred to this court u/s.407(2) of Cr.P.C. Therefore, the above mentioned orders of the learned Sessions Judge as well as the learned Magistrate are not legally sustainable.
In the result, this revision petition is disposed of setting aside the order dated 19.6.2010 in Crl.M.P.No.1264/10 of the Court of Sessions-Palakkad division and also the order passed by the learned Magistrate in pursuance of the above order of the Sessions Judge, transferring and placing the files before the Addl. Sessions Judge (Ad hoc-I), Palakkad. Accordingly, the 14 Crl. R.P.No.3079 of 2010 learned Addl. District & Sessions Judge-Palakkad, is directed to transmit the file pertained to C.C.No.258/08 to the Court of Judicial First Class Magistrate-Alathur, who in receipt of the file shall consider and dispose C.P.No.51/10 afresh and commit the case u/s.323 r/w 209 of Cr.P.C. to the Court of Sessions- Palakkad, who in turn will pass appropriate orders in terms of S.194 of Cr.P.C., for the trial and disposal of the above case along with S.C.No.493/09, pending in the Court of Addl. District & Sessions Judge (Ad hoc-I), Palakkad.
Criminal revision petition is disposed of accordingly.
V.K.MOHANAN, Judge.
ami/