ABHILASH Vs. STATE OF KERALA

JUDGEMENT

(1.) Petitioner is the be 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 Sections 143, 147, 148, 323, 324, 332, 326 and 307 r/w Section 149 of the Indian Penal Code. Grievance of Petitioner is that he was summoned to appear in the court below to give evidence on 13.1.2011 but he was not examined and there was some sort of persuasion on him to settle the case and the case was posted on 14.2.2011. 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 Section 409(2) of the Code of Criminal Procedure (for short, "the Code"). This petition is filed under Section 407 r/w Section 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 v. Vijayan, 2005 4 KerLT 475 has contended that in view of the general power conferred on the Sessions Judge under Section 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 Sub-section (2) of Section 409 of the Code.