LAWS(KER)-2006-12-120

C H ABDUL SALAM Vs. SAMEERA

Decided On December 04, 2006
C.H.ABDUL SALARN Appellant
V/S
SAMEERA Respondents

JUDGEMENT

(1.) The petitioner is the accused in C. C. No. 148/2006 on the file of the Judicial First Class Magistrate, II, Kannur. The said case was charge sheeted by the Kannur Town Police Station alleging offences punishable under Sections 323, 324 and 506 (II) of Indian Penal Code. Subsequently the de facto complainant preferred a private complaint against the petitioner in respect of the very same incident alleging offences punishable under Sections 307, 324, 326, 452 and 506 (II) of Indian Penal Code. The said private complaint stands committed to the Court of Sessions, Thalassery as per order dated 9-5-2006 and pending as C. P. 22/2006. However, the case charge sheeted by the police, i.e., C. C. No. 148/2006 is still pending before the Judicial First Class Magistrate II, Kannur. Therefore, this Transfer Petition is filed for transferring C. C. No. 148/2006 to the Court of Session, Thalassery.

(2.) When the case came up for admission the learned single Judge felt that there is conflict with two decisions of this Court- (1) Santhosh v. State of Kerala (2006 (3) KLT 439) and (2) State of Kerala v. Annamma (2003 (2) KLT 763). In Annamma's case it was held that the High Court has got jurisdiction to direct the Magistrate to commit the case to the Court of Session for trial by virtue of the powers conferred on it under Section 407(1)(iii) of Criminal Procedure Code but categorically held that the Court of Session has no such power. In Santhosh's case (supra) another learned single Judge of this Court has held that the Sessions Court and not the High Court is vested with the power to transfer a case pending before the Magistrate's Court to the Sessions Court under Section 408(1) read with Section 407(1)(iii) of Cr. P. C. Therefore, in Santhosh's case (supra) the learned single Judge rejected the application filed under Section 407 of Cr. P. C. holding that since the party has not approached the Sessions Court, they cannot file a transfer application before High Court. There is no dispute to the proposition that case, counter case and connected cases arising out of the same incident are to be tried by the same Court on the same day one by one to avoid conflict of decisions. On the facts of this case before us it is admitted that both cases, that is police case and case charged on the basis of private complaint based on the very same set of facts should be tried by the same Court. In Sudhir v. State of Madhya Pradesh (2001 AIR SCW 491) it was held by the Apex Court that case and counter case relating to the same incident should be tried by the same Court. In that case, and counter case were committed to the Sessions Court. Sessions court found that one of those cases involved offence not exclusively triable by Sessions Court and sent back that case to the Magistrate Court. Supreme Court held that Sessions Court should try both cases as Sessions Court has power to try any offence under Penal Code. Apex Court held as follows :

(3.) Now we come to the Sections 407 and 408 of Cr. P. C. which we quote below :