IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 3RD JUNE 2011 / 13TH JYAISHTA 1933 Tr.P(Crl.).No. 26 of 2011(A) ------------------------------------- [CRL.M.P.(TP).NO.394/2011 OF THE SESSIONS COURT, THIRUVANANTHAPURAM IN SC.NO.542/2006 OF FAST TRACK COURT -III, THIRUVANANTHAPURAM] .................... PETITIONER/PETITIONER/CW2: --------------------------------------------- ABHILASH,S/O.JAYARAJ,TC 12/957, BARTON HILL, KUNNUKUZHY WARD, THIRUVANANTHAPURAM. BY ADVS. SRI.SUMAN CHAKRAVARTHY, SRI.SANDEEP T.GEORGE. RESPONDENT/COUNTER PETITIONER: -------------------------------------------------------- STATE OF KERALA,REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. MANU. THIS TRANSFER PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON 03/06/2011,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. THOMAS P JOSEPH, J. ---------------------------------------- Tr.P(Crl).No.26 of 2011 --------------------------------------- Dated this 03rd day of June, 2011 ORDER Petitioner is the de facto complainant and CW2 in S.C.No.542 of 2006 of the Court of learned Additional Sessions Judge, Fast Track No-III, Thiruvananthapuram for offences punishable under Secs.143, 147, 148, 323, 324, 332, 326 and 307 r/w Sec.149 of the Indian Penal Code. Grievance of petitioner is that he was summoned to appear in the court below to give evidence on 13.01.2011 but he was not examined and there was some sort of persuasion on him to settle the case and the case was posted on 14.02.2011. Petitioner thought that it is appropriate that the case is tried by some other Court having jurisdiction over the matter and accordingly filed Crl.M.P(T.P). No.394 of 2011 before learned Sessions Judge, Thiruvananthapuram. Learned Sessions Judge declined to allow the request for the reason that since learned Additional Sessions Judge has already framed charge in the case, trial has commenced and hence there could be no withdrawal of the case from that Court in view of the bar under Sec.409(2) of the Code of Criminal Procedure (for short, "the Code”). This petition is Tr.P(Crl).No.26 of 2011 -: 2 :- filed under Sec.407 r/w Sec.482 of the Code requesting to set aside Annexure-A, order of the learned Sessions Judge, withdraw S.C.No.542 of 2006 from the above said Court and transfer the same to any other Court of equivalent competent jurisdiction. 2. I have heard learned counsel for petitioner and learned Public Prosecutor. Learned counsel, placing reliance on the decision in Surendrakumar Vs. Vijayan (2005(4) KLT 475) has contended that in view of the general power conferred on the Sessions Judge under Sec.408 of the Code it was within the power of the learned Sessions Judge to withdraw any case whether made over or not from any Criminal Court and transfer the same to another Criminal Court in his sessions division. 3. Learned Public Prosecutor contended that the said power, to the extent it concerned withdrawal of appeals and other cases from the Court of learned Additional Sessions Judge as per a judicial order is restricted by subsec.2 of Sec.409 of the Code. 4. In the decision relied by learned counsel, after referring to the power of learned Sessions Judge under Sec.409 of the Code, it is observed that the litigant is entitled to move the Sessions Court for transferring the cases including appeals and revisions at any stage from the Court of an Additional Sessions Judge, if such transfer is expedient for the ends of justice. But in Tr.P(Crl).No.26 of 2011 -: 3 :- my view, while Sec.408 of the Code deals with general power of the Sessions Judge, so far as withdrawal of the case or appeal or recall of any case or appeal which the Sessions Judge has made over to any Additional Sessions Judge is concerned, that general power is subject to the restriction imposed by subsec.2 of Sec.409 of the Code which is to the effect that such recall or withdrawal of the case or recall any case or appeal from the Additional Sessions Court is at any time before trial of the case or hearing of the appeal has commenced. Trial commences with the framing of the charge. Indisputably, in this case learned Additional Sessions Judge had framed charge by the time petitioner moved learned Sessions Judge for transfer of the case. The decision relied by the learned counsel concerned power of the Sessions Judge on the administrative side. Learned Sessions Judge therefore is right in holding that Sec.409(2) of the Code restricted his power to withdraw or recall the case from the Court of learned Additional Sessions Judge. 5. So far as the request for transfer (treating this petition as one filed under Sec.407 of the Code) is concerned, grievance of petitioner is that he was persuaded or prompted to settle the case and the case was adjourned to another day. I am not inclined to think, assuming that there was any such prompting or even pressurisation for composition of the case that Tr.P(Crl).No.26 of 2011 -: 4 :- if petitioner is not willing for that, there is anybody to compel him to compound the offence. Petitioner is free to give evidence in the case. I am also not inclined to think that the case will not be decided on merit if prosecution witnesses gave evidence. I am however make it clear that it is the duty of learned Additional Sessions Judge to dispose of the case on merit if prosecution witnesses gave evidence. I do not find reason to order transfer of the case to any other Court. This criminal miscellaneous case is dismissed. (THOMAS P JOSEPH, JUDGE) Sbna/- /True Copy/ P.A to Judge