VASUDEVAN Vs. STATE OF KERALA

JUDGEMENT

(1.) The above petition has been disposed of passing an order on dictation in open Court on 21/06/2012. As it appeared that further hearing was required, previous order was recalled and the parties were heard afresh. After such hearing, the petition is disposed of by this order.

(2.) The petition has been filed for transferring a complaint case pending before the Judicial Magistrate of the First Class, Kochi to the Assistant Sessions Court, Kochi, on the plea that the case pending before the magistrate is a counter case to the main case numbered as SC No. 354/11 before the Assistant Sessions Court. Previously, petitioner had moved an application before the magistrate seeking committal of his complaint case to the Sessions Court and, then, its transfer to the Assistant Sessions Court. That request was turned down by Annexure - A1 order. He then moved an application under S.408(1) of the Code of Criminal Procedure (for short 'the Code') before the Sessions Judge, seeking transfer of the case. That was turned down by Annexure - A2 order by the Sessions Judge holding that the case pending before the magistrate cannot be transferred to the Sessions Court under S.408(1) of the Code. Petitioner has thereafter moved the aforesaid petition under S.407(1) and (2) of the Code for passing an order of committal of the case, CC No. 1315/11 pending before the magistrate to the Sessions Court, to have the trial of that case as a counter case to SC No. 354/11 in the Assistant Sessions Court, Kochi.

(3.) The learned counsel for the 2nd respondent, the de facto complainant in SC No. 354/11 and the accused in CC No. 1315/11, has also submitted before me that the complaint case pending before the magistrate is in fact a counter case of the Sessions Case. However, on the materials placed and submissions made, and in the light of the orders passed by the magistrate and the Sessions Judge, Annexures - A1 and A2 respectively, in which that question has not been considered, it is not possible to take any view on the submissions made as above. The magistrate has not considered that question with reference to the materials available and submissions made, and the reasons set out in Annexure - A1 order turning down the request of the petitioner are also unsustainable. True, the Sessions Judge, when an application is moved under S.408(1) of the Code has no jurisdiction to order the magistrate to commit the case even if the case pending is found to be a counter case. However, the observations made by this Court in Abdul Salam v. Sameera, 2007 (1) KHC 563 : 2007 (1) KLT 592 : ILR 2007 (1) Ker. 464 : 2007 (1) KLJ 255 : 2007 (1) KLD 279 : 2007 CriLJ 1877, it appears, have not been taken note of by the Sessions Judge when the transfer petition was dismissed holding that the Court has no power to order committal. This Court has held that the Sessions Court has no power to transfer, but, it can dispose of the transfer application directing the magistrate to consider the request to commit the same to the Sessions Court where the connected case is pending.