IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 4TH FEBRUARY 2011 / 15TH MAGHA 1932 TR.P(CRL.).NO. 3 OF 2011() -------------------------------------- CC.1240/2004 OF J.M.F.C.-III,NEYYATTINKARA PETITIONER(S): PETITIONER ----------------------------------------- SURESH,S/O.JUSTUS,KIZHAKKUMKAVU VEEDU, ADIKALAM,KOVILOOR DESOM,VELLARADA VILLAGE, NEYYATTINKARA TALUK,THIRUVANANTHAPURAM. BY ADV. SRI.R.T.PRADEEP RESPONDENT(S): COUNTER PETITIONERS --------------------------------------------------------------- 1. STATE OF KERALA,REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM. 2. JUSTUS,S/O.CHELLAPPAN NADAR, KIZHAKKUMKADA VEEDU,ADIKKALAM KOVILLOOR DESOM. 3. ARULANANDAKUMAR,S/O.RAJAYYAN NADAR, KANNET PLAVILAPUTHEN VEEDU,ADIKKALAM,KOVILLOOR DESOM,VELLARADA VILLAGE,NEYYATTINKARA, THIRUVANANTHAPURAM. 4. SHYJU,S/O.JOHNSON,KIZHUKKUMKARA VEEDU, MANALLI KOVILLOOR DESOM,VELLARADA,NEYYATTINKARA, THIRUVANANTHAPURAM. 5. KINGSILY,S/O.SAMUEL DEVADAS,ROADARIKATHU VEEDU,CHERUPPANKONAM,VELLARADA VILLAGE, NEYYATTINKARA,THIRUVANANTHAPURAM. 6. MARYDAS,S/O.SATHYAN NADAR,AMBALAKKALA VEEDU,VELLACHIPPARA,KOTTUKONAM MANGODE VILLAGE, KANYAKUMARI DISTRICT,TAMIL NADU. BY PUBLIC PROSECUTOR SHRI K.J. MOHAMMED ANZAR R1 THIS TRANSFER PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON 04/02/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. ==================================== Tr.P(Crl.) No.3 of 2011 ==================================== Dated this the 04th day of February, 2011 O R D E R Petitioner is accused No.2 in S.C No.1046 of 2006 of the court of learned Assistant Sessions Judge, Neyyattinkara involving offences punishable under Sections 323 and 324 read with Section 34 of the Indian Penal Code. According to the petitioner, his father is the de facto complainant in C.C. No.1240 of 2004 of the court of learned Judicial First Class Magistrate-III, Neyyattinkara involving offences punishable under Secs.323 and 324 read with Sec.34 of the Indian Penal Code. According to the petitioner both the cases arise out of the same incidence and hence C.C. No.1240 of 2004 is to be committed to the court of Sessions, Neyyattinkara to be tried along with S.C No.1046 of 2006 pending in the court of learned Sessions Judge. Hence this petition under Section 407 of the Code of Criminal Procedure requesting to transfer C.C. No.1240 of 2004 from the court of learned Judicial First Class Magistrate court, Neyyattinkara to the court of Assistant Sessions Judge, Neyyattinkara. Learned counsel has placed reliance on the decisions in Abdul Salam v. Sameera (2007 [1] KLT 592). Tr.P(Crl.) No.3 of 2011 -: 2 :- 2. That decision of the Division Bench relied by the learned Judge reversed the decision in Santhosh v. State of Kerala (2006 [3] KLT 439) where the view taken was that where out of the same incident a sessions case arose and it is pending in the Sessions Court and a case not exclusively tribale by the court of session is pending in court of learned Magistrate the Sessions Court could direct transfer of the case pending in the court of learned Magistrate. That view was found to be not correct in view of Section 323 of the Code of Criminal Procedure (for short, “the Code”). Under section 323 when the Magistrate in any enquiry into an offence or trial of a case is of the view that case is one which ought to be tried by the Sessions Court, the Magistrate is to commit the case to the Sessions Court and thereon provisions of Chapter XVIII (trial of Sessions cases) of the Code would apply. Section 193 of the Code says 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. In the circumstances Sessions Court cannot take cognizance of the offence involved in C.C No.1240 of 2004 unless that case is Tr.P(Crl.) No.3 of 2011 -: 3 :- committed to the Sessions Court for trial under Sec.193 of the Code. Exactly is the decision rendered by the Division Bench in Abdul Salam's case (supra). There, referring to the power under Section 407(1)(iii) of the Code it was held that in such a situation the aggrieved party can apply to the High Court “for directing the learned Magistrate to commit the case for trial to the Sessions Court along with the connected case.” In other words order of committal must come from the learned Magistrate before whom the case is pending and which otherwise is not exclusively triable by the Sessions Court. 3. It is not as if this Court is to transfer the case to the court of Sessions. Therefore the prayer for transfer cannot be allowed. But I make it clear that any of the parties in C.C. No.1240 of 2004 can apply to the learned Judicial First Class Magistrate-III, Neyyattinkara to commit the case to the court of Sessions for trial simultaneously with S.C. No.1046 of 2006 of the Assistant Sessions Court, Neyyattinkara and if any such application is preferred and the learned Magistrate is satisfied that the case is to be committed, arising out of the same incident learned Magistrate shall commit the case to the court of Sessions as aforesaid. Tr.P(Crl.) No.3 of 2011 -: 4 :- 4. It is open to the parties in S.C. No.1046 of 2006 of the Assistant Sessions Court to request that court to keep trail of the case in pending until learned Magistrate decides on the application being filed before the learned Magistrate. Such application if any shall be filed within two weeks from the date notified for delivery of a copy of this order. Even if no such application is filed, it is open to the learned Magistrate to consider the matter and pass appropriate orders in the matter. Criminal Miscellaneous Case is disposed of with the observation and direction. THOMAS P. JOSEPH, JUDGE. vsv