Suo Motu vs State Of Kerala on 1 November, 2010
Citation Crl.Rev.Pet. No. 3079 of 2010
Date of judgement 1, November, 2010
Court Kerala High Court
Case Type Crl. Rev. Pet
Petitioner SUO MOTU
Respondent STATE OF KERALA
Bench Mr. Justice V. K. MOHANAN
Referred Section CRPC 408, 208,193, 407(1) (iii),
FACTS OF THE CASE
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.
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 of 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 (Ad Hoc)-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.
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.”
ISSUE
- 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 to the Sessions Court.
- What is the procedure to be followed to achieve the object laid down by the apex court in the Crl. R.P.No.3079 of 2010?
ARGUMENTS
Issue 1
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 Ad Hoc Court which can be considered as a Criminal Court for the purpose of Section 408 CrPC., though presided over by an Addl. Sessions Judge and Section 193 of CrPC. 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 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.
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 the same incident shall be tried in the same court’. In the above 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.”
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.
ISSUE 2
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 de facto 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 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 CrPC. 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 CrPC. 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 session’s division one has to file an application before the Sessions Court and its rejection by the concerned Sessions Judge is a pre-condition.
S.408 (1) of CrPC. 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 CrPC. 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 CrPC. 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)
JUDGEMENT
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, improper and illegal.
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.
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 can be transferred to another subordinate criminal court which has the 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 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.
S.193 of Cr.P.C. it can be seen that, “the Sessions Court cannot 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. Court will get original jurisdiction to take cognizance of any offence only on the basis of special provisions containing 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.
Simrah khan, University of Kashmir, Intern under legal Vidiya.
