Yadhu Mohan vs Rajesh Kumar P.R on 7 September, 2021
In Babu v. Kunjumol Nandiyanathayil [2017 (2)
KLT 1011], another decision relied on by the learned counsel
for the 1st respondent, a Full Bench of this Court held that no
appeal under Section 5(i) of the Kerala High Court Act, 1958
could be maintained against an order passed by a learned
Single Judge under Section 407 of the Criminal Procedure Code,
1973, either allowing or refusing to transfer a case or an appeal
from one criminal court to another criminal court in the same
Sessions Division. In the said decision, the Full Bench noticed
that the power exercised by the High Court under Section 407
can be either in the form of appellate jurisdiction or revisional
Tr.Appeal(C)No.7 of 2021
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jurisdiction, as the case may be. It can never be an original
jurisdiction, as the concept itself is different because there is no
adjudication of a cause in a proceedings under Section 407.
Since the power exercised by the High Court under Section 407
of the Criminal Procedure Code can never be an original
jurisdiction, the Full Bench held that the order of a learned
Single Judge in a proceedings under Section 407 is not
appealable either under Section 5(i) or 5(ii) of the Kerala High
Court Act. In the case on hand, the impugned order of the
learned Single Judge is one passed under Section 24 of the
Code of Civil Procedure, against which an appeal will lie under
Section 5(i) of the Kerala High Court Act, as held by the Full
Bench of this Court in Balan [2005 (4) KLT 865].