STATE OF KERALA Vs. KUTTIKRISHAN

JUDGEMENT

(1.) These matters arise from the decision of the Additional Sessions Judge (Special), Palghat Sessions Division in Sessions Case Nos. 39 and 42 of 1978 of his Court (generally known by the name 'Kumbalam Naxalite Case').

(2.) 13 accused who are the respondents here were charge sheeted by the Deputy Superintendent of Police, Crime Branch I, C.I.D. Ernakulam for murder, dacoity, rioting and other allied offences. The accused other than the 11th accused were committed for trial to the Court of Session, Ernakulam in P.E. 1 of 1975 of the Additional Judicial Magistrate, Second Class, Ernakulam. The case against them was registered as S.C. 37 of 1976. The 11th accused was subsequently apprehended and he was committed for trial as per the order in P. E. 2 of 1976 by the same Magistrate. The case in the Court of Session, Ernakulam was registered as S.C. 20 of 1977. Since the two cases arose out of a single incident, they were consolidated. The accused in S.C. 20 of 1977 was ranked as the 11th accused in S.C. 37/76. Evidence was recorded in S.C. 37/76. As there were a large number of witnesses and the. trial was anticipated to be a prolonged one, on the recommendation of the Inspector General of Police, the Special Court set up for the trial of the Kongad case was shifted to Ernakulam for the trial of the cases. The court was designated as the IIIrd Additional District and Sessions (Special) Judge, Ernakulam. Shri. A. Antony was appointed for the trial of the cases as the IIIrd Additional District and Sessions (Special) Judge. When there are more than one Additional Judge working at the same station and in the same Sessions Division, the practice is to rank them according to the seniority, the seniormost being ranked as the First Additional Sessions Judge. During the trial of the cases, officers junior to Shri. A. Antoy happened to be posted as Additional Sessions Judges at Ernakulam. This necessitated a change in the rank of the Special Court first as IInd Additional District and Sessions (Special) Judge and later on as the First Additional District and Sessions (Special) Judge. Shri. Antony continued the trial of S..C. Nos. 37/76 and 20/77. After 102 witnesses were examined, a situation arose in which it was felt undesirable in the interest of administration of justice that Sri. Antony should continue to work at Ernakulam. It was decided to transfer him from Ernakulam. Under the law (S.326 of the Code of Criminal Procedure prior to the amendment of 1978) as it stood then, there was no provision in the Code of Criminal Procedure for the successor of a Judge to act on the evidence recorded by his predecessor. The High Court, therefore, felt that since the majority of the witnesses had been examined, in the interest of the accused, Sri. Antony should continue the trial of the cases. At the request of the High Court, the Special Court was shifted by Government to Palghat and was designated as the Additional District and Sessions Court (Special), Palghat. Sri. Antony was appointed as Additional District and Sessions (Special) Judge, Palghat to try the Kumbalam Naxalite case. Orders were also issued by the High Court transferring the two cases to. Palghat under S.407 of the Code of Criminal Procedure. After Sri. Antony took charge, notices were issued to the accused and they put in appearance. When witness No. 103 was about to be examined, accused Nos. 3 and 4 raised objection, contending that the Special Judge had no jurisdiction to try the case as there was no proper order transferring the case to him for trial. This petition was disposed of by Sri. Antony on 7th October, 1978 stating that it would be considered at the final hearing stage. On 16th October, 1978, the Special Public Prosecutor made a motion requesting the Court to review the order dated 7th October, 1978 and to consider and dispose of the objection raised regarding jurisdiction before proceeding further with the trial. The learned Additional Sessions Judge declined to review his prior order, stating that the motion was not maintainable before that Court and added that if the Special Public Prosecutor had doubts regarding the validity of the order of transfer, it was open to him to take the matter to the competent superior Court.

(3.) After evidence was closed and when the arguments were being heard, the counsel appearing for accused Nos. 5 and 9 again raised the question of jurisdiction. It appears that in the meanwhile the Special Public Prosecutor wrote to the Registrar of this Court that an objection had been raised regarding the jurisdiction of the Additional Sessions Court, Palghat to try the case on the ground that the incident took place within the territorial limits of the Ernakulam Sessions Division and on the ground that it was the Registrar who issued the order of transfer. To the above letter, the Registrar replied that the cases were transferred to the Additional District and Sessions Court, Palghat (Special) as per orders passed by the High Court in exercise of the powers conferred by S.407 of the Code of Criminal Procedure. The Registrar also stated that the orders were not passed by him but that he was only communicating the orders by order of the High Court. The letters were marked as Exts. A1 and A2. Ext. C7 is the copy of the proceedings of the High Court regarding the transfer of Sessions Case 37/76 to the Additional District and Sessions (Special) Court, Palghat. The learned Additional Sessions Judge after hearing on the objection held that his Court had no jurisdiction to decide the case and that all the accused were, therefore, entitled to acquittal. The 13 accused were accordingly acquitted. The appeal is preferred by the State against the order of acquittal. When the copy of the judgment was received in the High Court and the calendar was perused by Viswanatha Iyer J., he found the disposal of the case irregular and took up the matter in revision and issued notice to the accused. The appeal and the revision case were heard together.