SANTHOSH ALIAS APPACHAN Vs. STATE OF KERALA

JUDGEMENT

(1.) This Transfer Petition (Crl.) is one filed under Section 407 of the Criminal Procedure Code for a direction being given to the Judicial First Class Magistrate, Vaikom to commit C.C. No. 192/2004 pending on the file of his Court to the Sessions Court, Kottayam Division for trial. It is submitted that Section C. No. 83/2006 on the file of the Additional Sessions Court (Adhoc-I), Kottayam, is counter case to C.C. No. 192/2004.

(2.) This unnumbered transfer petition has come up before me consequent on the note made by the Registry that a transfer petition seeking for committal of a criminal case to the sessions division has first to be moved before the concerned Sessions Court and unless such an application has been rejected by the Sessions Court, no application can be filed before the High Court in view of proviso to Section 407(2) of the Criminal Procedure Code.

(3.) Counsel for the petitioner submits that Section 408 of the Criminal Procedure Code deals with power of Sessions Judge to transfer a criminal case pending on the file of any of the criminal courts in his Sessions Division to another criminal court within his sessions division but that power does not include a power to direct a Magistrate to commit a case for trial and that power, according to him, is vested expressly in the High Court only, in view of Section 407(1)(iii) of the Criminal Procedure Code. According to him, the prayer in this transfer petition being not to transfer a case but for a direction to commit the case to the Sessions Court and that remedy is available only by invoking Section 407(i)(iii), the nomenclature of the petition as transfer petition (Crl.) is immaterial but is used only in view of the wordings of Section 407 conferring power on High Court and that the relief actually desired is one mentioned under Section 407(1)(iii) of the Criminal Procedure Code.