Allowed

Rajesh v. State of Kerala and Antoehr

Kerala HC23 Jun 2011Crl.MC/554/2011

Case brief

AI extract

What is this about?

The High Court of Kerala allowed a criminal miscellaneous petition challenging a Sessions Court order transferring a case under Sec 408 CrPC. The Court held that transfer power lies with the committing Magistrate or the High Court, setting aside the impugned order.

What did the court decide?

Impugned order of transfer under Sec. 408 CrPC set aside; parties directed to initiate committal proceedings under Sec. 323 CrPC.

Rajesh Vs State of Kerala and Antoehr — Civil Procedure and Limitation | Kerala HC (2011)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH

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THURSDAY, THE 23RD JUNE 2011 / 2ND ASHADHA 1933

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Crl.MC.No. 554 of 2011() -----------------------CC.455/2005 of JUDL. MAGISTRATE OF FIRST CLASS COURT, IRINJALAKUDA

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PETITIONER(S): DE-FACTO COMPLAINANT:

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-----------------------------------------------------------------

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RAJESH, S/O. RAGHAVAN, THUPRATH HOUSE, THAIVALAPPU DESOM, VALLIVATTOM VILLAGE, MUNDAPURAM TALUK, THRISSUR DISTRICT.

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BY ADVS. SRI.M.SHAJU PURUSHOTHAMAN, SRI.K.S.RAJESH

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RESPONDENT(S): ACCUSED:

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--------------------------------------------

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1. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, REPRESENTING S.I OF POLICE, IRINJALAKUDA POLICE STATION.

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2. PRASANNAN, S/O. KUNJAPPU, PALAKKAPARAMBIL HOUSE, SREENARAYANAPURAM VILLAGE, KODUNGALLUR TALUK, THRISSUR DISTRICT - 680 651.

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R1 BY PUBLIC PROSECUTOR SRI. V. MANU

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THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 23/06/2011,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss

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CRMC.NO.554/2011

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APPENDIX

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PETITIONER'S ANNEXURES:

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ANNEX.A: COPY OF THE ORDER IN TMP 4721/2008 PASSED BY THE SESSIONS COURT, THRISSUR DTD. 12/01/2009. RESPONDENT'S ANNEXURES: N I L

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/TRUE COPY/

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P.A.TO JUDGE Kss

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THOMAS P JOSEPH, J.

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Crl.M.C.No.554 of 2011

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Dated this 23^rd day of June, 2011

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ORDER

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Though respondent is served, there is no response. Public Prosecutor takes notice for the first respondent.

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The de facto complainant in C.C.No.455 of 2005 of the Court of learned Judicial First Class Magistrate, Irinjalakkuda challenges Annexure-A, order dated January 12, 2009 on T.M.P.No.4721 of 2008 of the Sessions Court, Thrissur. By the said order, learned Sessions Judge has directed transfer of C.C.No.455 of 2005 to the Court of learned Additional Assistant Sessions Judge, Irinjalakkuda invoking power under Sec.408 of th Code of Criminal Procedure (for short, "the Code”) for simultaneous disposal with S.C.No.990 of 2008. It is contended that learned Sessions Judge has no power to order such a transfer since it is for the Magistrate concerned to commit the case for trial, if found necessary invoking power under Sec.323 of the Code or, for the High Court to direct such committal invoking Sec.407(1)(iii) of the said Code. I have heard learned Public Prosecutor also.

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Crl.M.C.No.554 of 2011

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-: 2 :-

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It is seen from the impugned order that learned Sessions Judge has not gone into the above aspect. Instead, petition for transfer was allowed for the reason that respondents in the transfer petition (including the first petitioner) had no objection to such order of transfer being made. It is interesting that the very same first respondent who had no objection to the learned Sessions Judge allowing petition for transfer under Sec.408 of the Code is now complaining about legality of the said order. But, that the petitioner or anybody else had no objection in the matter will not confer jurisdiction on the learned Sessions Judge to make such an order of transfer since as above stated, the case has to be committed either by the Magistrate dealing with C.C.No.455 of 2005 as provided under Sec.323 of the Code or, this Court has to direct the Magistrate to commit the case for trial to the Court of Sessions invoking power under Sec.407(1)(iii) of the Code. In view of the above, the order under challenge cannot stand and is liable to be set aside.

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Resultantly this criminal miscellaneous case is allowed. Annexure-A, order dated January 12, 2009 on T.M.P.No.4721 of 2008 of the Court of learned Sessions Judge, Thrissur is set aside. Learned Judicial First Class Magistrate, Irinjalakkuda is directed

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Crl.M.C.No.554 of 2011

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-: 3 :-

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to consider whether, on the facts of the case C.C.No.455 of 2005 is required to be committed to the Court of Sessions as provided under Sec.323 of the Code. In case of such committal, learned Sessions Judge, Thrissur shall make over the case to the Court of learned Additional Assistant Sessions Judge, Irinjalakkuda (where S.C.No.990 of 2008 is pending) for trial and disposal.

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(THOMAS P JOSEPH, JUDGE)

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Sbna/-

Rajesh v. State of Kerala and Antoehr

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Rajesh v. State of Kerala and Antoehr

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