Appukuttan vs Z. Thomas Zakaria and Others

S. Vaidyanathan, J.�The petitioner in this petition, has sought for an order for setting aside the order passed in Crl. M.P. No. 2697 of 2012, dated 31.10.2012, by the Principal District and Sessions Judge, Kanyakumari at Nagercoil and also to withdraw C.C. No. 397 of 2010 from the file of the Judicial Magistrate No. II, Nagercoil and transfer the same to the file of the Chief Judicial Magistrate, Nagercoil to be tried along with S.C. No. 62 of 2011. The case of the petitioner is that both the cases (i.e. C.C. No. 397 of 2010 and S.C. No. 62 of 2011) arise out of the same property and the police have registered both the cases and split up the offences under various provisions of Indian Penal Code and that gives rise to cause for two cases, which can be tried together. The petitioner stated that no prejudice is going to be caused, if two cases are tried together.

In reply, the respondent counsel appearing for the respondents 1 to 5 has stated that S.C. No. 62 of 2011 pertains to the offence of ''trespass'' and C.C. No. 397 of 2010 pertains to the offence of ''fabrication of documents''. One has no relation to another. That apart, in the issue pertaining to fabrication of documents, trial is yet to be commenced. So far as trespass is concerned, the trial has already commenced and for want of appearance of the accused, the matter is pending. It is further submitted that a non-bailable warrant has been issued by the trial court to the witness. If the witness namely Appukuttan appears, the proceedings will come to an end on the date of his appearance. He has further submitted that as long as the trial is not commenced, both the cases can be clubbed together. But here in one case, the trial is commenced and in another, it is a still-born child. Hence, both the cases cannot be tried together. He referred to paragraph No. 13 of the order of the learned Principal District and Sessions Judge, Kanykumari District at Nagercoil, wherein, it has been held as follows.

"13. Further, on perusal of the case records, it shows that C.C. No. 397 of 2010, the trial is to be commenced. The P.W. 1 has appeared before that Court and examined chief examination of P.W. 1. This court''s opinion is that once the trial court has commenced trial and become part heard the case cannot be transferred from one court to another court. The above said principle is laid in 2004 Crl.L.J. page 1624 in case of Ashok Kumar Prabhudhas Bai Modi Vs. State of Gujarat. Therefore, this Court considered the above said all aspects and come to the conclusion that since the case was part heard in C.C. No. 397 of 2010 and in S.C. No. 62 of 2011 except the petitioner, all other witnesses examined by the Chief Judicial. Magistrate, it will difficult to dispose of the case as expeditiously. Furthermore, this court has gone through the case records. It found that the learned counsel for the petitioner has contended that one case was alleged to forgery defence. The another one case was trespassers offence. The learned counsel for the petitioner has contended that the above said cases are jointly or simultaneously examined by same Court it will alone to come to the fair judgment. The above said contention is not accepted by this Court. Because C.C. No. 397 of 2010 is one Antony had given the complaint against the respondents regarding that the respondents have created fabricated power of attorney to the impersonation of the original owner. Based on the power of attorney property was sold by some persons in favour of the petitioner. The fact of the cases are different in both cases. In the circumstances, the learned counsel for the petitioner''s contention is not sustainable one regarding that if two cases are not jointly examined by the same court, the petitioner having the prejudice. Under above all circumstances are considered by this Court and come to the conclusion that the petition is not maintainable one. Hence, this petition is dismissed."

Heard both the parties.

It is no doubt true that the Sessions Judge has got powers to transfer the same from one Court to another Court. The only issue is at what stage it can be done, more particularly, in view of Section 409(2) of Cr.P.C. Section 409(2) Cr.P.C. is extracted below.

"At any time before the trial of the case or the hearing of the appeal has commenced before the Additional Sessions Judge, a Sessions Judge may recall any case or appeal which he has made over to any Additional Sessions Judge."

In Re: Smt. Tarulata Kala, , the Calcutta High Court, in paragraph No. 5 has held as follows:

"I have considered the submission of Mr. Roy and the materials as produced before me in the revisional application. I find no conflict in the decision of Radhey Shyam (supra). The conflict regarding them is interpretation of the same.

Section 408(1) reads as follows:-

"Whenever it is made to appear to a Sessions Judge that an order under this sub-section is expedient for the ends of justice, he may order that any particular case be transferred from one Criminal Court to another Criminal Court in his sessions division."

(sic). (Underscoring is by me).

Sub-section (2) of Section 409 reads as under:-

"At any time before the trial of the case or the hearing of the appeal has commenced before the Additional Sessions Judge, a Sessions Judge may recall any case or appeal which he has made over to any Additional Sessions Judge." (sic). (The underscoring is by me).

So, both the sections speak of two stages, one up to the stage of case and another where the case steps into the stage of trial, that is, with the framing of the charge. The case under reference of the Allahabad High Court only speaks of transfer of the sessions case and not regarding trial. No doubt, the two sections are separate and independent and one is not controlled or regulated by the other. But sub-section (2) of Section 409 specifically points out two stages in a case, that is, one from pre-trial which is termed as ''case'' and very often one comes across with the expression ''till the trial commences before the Sessions Judge'' shows that sessions case and sessions trial is not the same. Once the trial commenced, the Sessions Judge has not the power to withdraw and transfer the trial to some other court of another Sessions Judge or Additional Sessions Judge. But before that stage of the trial, the Sessions Judge has every power to withdraw the Sessions Case either upon an application or suo motu and can transfer it to another court of session. In that there is no military between Section 408(1) and Section 409(2) of the Cr.P.C. The Legislature in its wisdom has used two terminology in Section 408(1) and 409(2) namely, the pre-trial stage of Sessions Case and trial stage. There is no doubt that the learned Sessions Judge has power to withdraw the Sessions case to another Court in pre-trial stage, but once the trial commences he has no power to transfer the case to another court of Sessions Judge."

Even though the trial Court has powers to withdraw the Sessions case and transfer the same to another Court, it can be only done in the pre-trial stage. Once the trial has started, the Sessions Court has no power to transfer the case to another Court of Sessions.

In the light of the decision rendered by the Calcutta High Court and the decision of the Apex Court referred to by the Principal District and Sessions Court, Kanyakumari District at Nagercoil and taking note of Section 409(2) of Cr.P.C., as the trial has commenced and it is at the verge of conclusion, there is no need to club both the cases namely S.C. No. 62 of 2011 and C.C. No. 397 of 2010 to be tried in the same Court, more particularly when S.C. No. 62 of 2011 pertains to different event and the trial has already been commenced, except the examination of witness Appukuttan, who is required for adducing evidence and in this regard, a warrant has already been issued. It is very unfortunate that the warrant issued on 14.07.2012 is yet to be executed. Taking note of the submissions of both sides, I am of the view that the order of the Principal District and Sessions Court, Kanyakumari District at Nagercoil in Crl. M.P. No. 2697 of 2012 does not warrant any interference. Hence, the Criminal Original Petition is dismissed accordingly. No costs. Consequently, connected M.P.(MD). No. 1 of 2012 is also dismissed.