IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 12.11.2010 CORAM THE HONOURABLE MR. JUSTICE G.M. AKBAR ALI CRL.O.P.No.21850 of 2010 and M.P.Nos.1,2 and 3 of 2010 1. Pala Arumugam 2. Balachandar 3. Anthiyur Raja @ Raja 4. Nambiyur Raja @ Raja .... Petitioners vs State rep by Inspector of Police Gobichettipalayam Police Station (Cr.No.18,19 and 20/2008) ... Respondent Criminal Original Petition filed under Section 482 Cr.P.C. for the reliefs as stated therein. For petitioners : Mr.R. Shivakumar For respondents : Mr.Hassan Mohamed Jinnah APP For Intervenor : Mr.N. Manoharan O R D E R The petition is filed seeking a direction to set aside the order passed in Tr.Crl.M.P.No.283/10 dated 22.7.2010 by the learned Principal Sessions Judge, Erode and transfer the cases, which are pending in C.C.No.95 of 2008 on the file of the learned Judicial Magistrate No.I, Gobichettipalayam and C.C.No.260 of 2008 on the file of the learned Judicial Magistrate No.II, Gobichettipalayam to the learned Principal Subordinate Judge, Gobichettipalayam for simultaneous trial with S.C.No.142 of 2009. 2. The petitioners are accused in Cr.No.18 of 2008, registered for an offence punishable under Secs.147,148, 323 and 324 IPC, charge sheeted for the same offence and the case is pending before the learned Judicial Magistrate No.I, Gobichettipalayam in C.C.No.95/2008. 3. They are also accused in Cr.NO.19/2008 for offence punishable under Sec.147, 148, 323, 324, 307, 365 and 379 (NP) IPC and after charge sheet and on committal, pending before the learned Principal Subordinate Judge, Gobichettipalayam in S.C.No.142/2009. https://hcservices.ecourts.gov.in/hcservices/ 4. The 2nd petitioner is the complainant in Cr.No.20/2008 for the same offences and the same is pending in C.C.No.260/2008 before the learned Judicial Magistrate No.II, Gobichettipalayam. 5. According to the petitioners, the above occurrences had taken place within the distance of 2 ½ kms on 8.1.2008 between 5.30 p.m and 9.30 p.m. The dispute was between Kongu Ilaizar Peravai and Kongu Nadu Nanbargal Sangam, two associations of the same community. 6. According to the petitioners, all the three occurrences are chain of events involving the petitioners and the counter petitioners and therefore, they filed an application for transfer of the two calendar cases pending before the learned Judicial Magistrates Court to the learned Principal Subordinate Court, Gobichettipalayam to try along with S.C.No.142 of 2009. 7. The counter petitioners resisted the petition and the learned Principal District and Sessions Judge, Erode observed that in Cr.NO.19/2008, in S.C.No.142/2009, as many as four witnesses have already been examined and at that stage, a simultaneous trial cannot be sought for and therefore, dismissed the transfer petition. He also observed that the petitioners have not approached the Court at the earliest point of time for transfer. 8. Aggrieved by such an order, the petitioners are before this Court for similar relief of transfer of two cases pending before the Magistrates Court to the Assistant Sessions Court for a simultaneous trial. 9. Mr.R. Shivakumar, learned counsel for the petitioners would submit that the petitioners are the accused in two cases and the defacto-complainant and others were accused in one case and the occurrences have taken place in pursuant to a dispute between two groups belong to same community. The learned counsel pointed out that when the parties are the same and the witnesses are the same, and when there is a case and counter, arising out of same occurrence, a simultaneous trial must be conducted for proper appreciation of evidence. 10. On the contrary, the learned Additional Public Prosecutor submitted that the case pending before the Assistant Sessions Judge, trial has already been commenced. The learned APP pointed out that the learned Sessions Judge had partly allowed the transfer application by ordering one calendar case to be transferred to the other Magistrate Court for a simultaneous trial. 11. On the other hand, Mr.N. Manoharan, learned counsel for the intervener submitted that the petitioners are trying to drag on the proceedings by filing vexatious petitions for transfer and there is no justification to conduct a simultaneous trial. The learned counsel also pointed out the offences triable by a Magistrate Court https://hcservices.ecourts.gov.in/hcservices/ need not be transferred to Sessions Court. 12. Heard and perused the materials available on record. 13. According to the prosecution, on 8.1.2008, at 5.30 p.m, the petitioners attacked one defacto-complainant, Balaji on a quarrel between two associations which are named as Kongu Ilaizar Peravai and Kongu Nadu Nanbargal Sangam. On a complaint given by said Balaji, a case was registered and on investigation, charge sheet filed before the learned Judicial Magistrate No.I, Gobichettipalayam and the same was taken on file in C.C.NO.95/2008. 14. In Cr.19/2008, the case of the prosecution is that on the same day at 7.30 p.m, the rival associations, had a quarrel near bus stand and the petitioners attacked one Subramanian and Thirumoorthy and on a complaint given by the said Subramanian, case was registered against the petitioners and on investigation, charge sheet was laid for various offences including an offence punishable under Sec.307 IPC and the case is pending before the learned Assistant Sessions Judge in S.C.NO.142/2009. 15. The case of the prosecution in Cr.No.20/2008 is that some of the persons belonging to the petitioners group were assaulted by the rival group and on complaint by the 2nd petitioner, a case was registered and final report was filed for the offence stated above and the same was taken on file in C.C.No.260 of 2008 by the learned Judicial Magistrate No.II, Gobichettipalayam. They have sought transfer on a single ground that all the occurrences have taken place on the same day between 5.30 p.m and 7.30 p.m in the chain of events and the dispute is with regard to two different associations of the same community. 16. The Proceedings pending in C.C.No.260/2008 before the J.M.II is counter case by the petitioners. It is admitted that the parties are the same and the occurrence have taken place on the same day in a chain of events involving two associations. In normal circumstances, all the cases would have been tried simultaneously. But in one of these cases, an offence triable by the court of sessions viz, an offence under Sec.307 IPC is involved. Except that the proceedings are case and counter in nature. 17. Sec.408 of Cr.P.C empowers the Sessions Judge to transfer the cases, which reads as follows: "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. https://hcservices.ecourts.gov.in/hcservices/ (2) The Sessions Judge may act either on the report of the lower court, or on the application of a party interested, 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 Sessions 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" 18. Therefore, if it appears to the Sessions Judge, that an order is expedient for the ends of justice he may transfer a case from one criminal court to another criminal court. The reason given by the learned Sessions Judge that in S.C No142 of 2009 trial has already commenced and four witnesses have already been examined cannot be a reason to disallow the transfer application. In my considered opinion, to meet the ends of justice, for proper appreciation of evidence and to have a fair and impartial trial, all the cases which arises out of single cause between same parties has to be tried simultaneously by one criminal court. Therefore, the order dismissing the transfer application is liable to be set aside and accordingly it is set aside. 19. In the result, the criminal original petition is allowed and the order passed by the learned Principal Sessions Judge, Erodein Tr.Crl.M.P.No.283/10 dated 22.7.2010 is set aside and the proceedings in C.C.No.95 of 2008 on the file of the learned Judicial Magistrate No.I, Gobichettipalayam and C.C.No.260 of 2008 on the file of the learned Judicial Magistrate No.II, Gobichettipalayam are directed to be transferred to the learned Principal Subordinate Judge, Gobichettipalayam for simultaneous trial with S.C.No.142 of 2009. Consequently, connected Mps are closed. sr Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar https://hcservices.ecourts.gov.in/hcservices/ To 1. The Judicial Magistrate No.I, Gobichettipalayam 2. The Judicial Magistrate No.II, Gobichettipalayam 3. 1 & 2 Do Through the Chief Judicial Magistrate, Erode. 4. The Principal Subordinate Judge, Gobichettipalayam. 5. The Inspector of Police, Gobichettipalayam Police Station 6. The Public Prosecutor, High Court, Madras + 1 cc to Mr. N. Manoharan, Advocate SR No.81673 KU(CO) SR/29.11.2010 Order in Crl.O.P.No.21850/2010 https://hcservices.ecourts.gov.in/hcservices/