S. Raja vs State by S.I. of Police, (Crimes) Pollachi

Padmini Jesudurai, J.—The accused in CC No. 115 of 1992 pending before the Judicial Magistrate No. II, Pollachi seeks transfer of the above case back to the court of the judicial Magistrate No. 1 Pollachi, wherein it was previously tried.

The respondent filed a charge sheet against the petitioner for an offence under S. 409 I.P.C. in the court of the Judicial Magistrate No. 1, Pollachi, who took it on file as CC No. 44 of 1986. P.Ws 1 to 5 were examined and the prosecution closed its side. The petitioner was examined under S. 313, Cr.P.C. and all that remained in the case was examination of defence witness and arguments. At that stage the case was transferred on administrative grounds to the court of the Judicial Magistrate No. II, Pollachi. Aggrieved with the order the petitioner filed Crl. M.P. No. 1971 of 1992 in the Court of Sessions, Coimbatore for retransfer of the case to the Court of the Judicial Magistrate No. 1, Pollachi stating that the trial having been practically concluded in the latter court, ought not to have been transferred before the new court. Learned Sessions Judge, Coimbatore dismissed the application of the petitioner seeking re-transfer and instead directed the judicial Magistrate No. II, Pollachi to hold a de novo trial by examining the prosecution witnesses afresh. Aggrieved by the above order the accused has filed the present petition.

Thiru V. Gopinathan, learned counsel for the petitioner would contend that even on administrative grounds it is not desirable to transfer a criminal case in which the trial is practically over and all that remained was examination of defence witness and arguments and in the instant case the offence being one u/s 409 I.P.C. the Judicial Magistrate No. 1 has had the benefit of noticing the demeanour of the witnesses and following the cross examination and as such the case should be transferred back to the court of the Judicial Magistrate No. I, Pollachi. Learned counsel had serious reservations about the order of the Sessions Judge direction a de novo.

Learned Public Prosecutor was also heard.

Though there is no specific rule that on administrative grounds cases in which evidence had been closed shall not be transferred to another court, it would be a fair principle for the court to follow that such cases should not be transferred on administrative grounds. The trial court has had the benefit of noticing the demeanour of the witnesses and following the cross examination and stands in a better position then the transferee court which has to go through the exercise of perusing the evidence and the documents exhibited on both sides.

In the circumstances, I feel it would be in the interests of justice to direct the case to be transferred back to the court of the Judicial Magistrate No. I, Pollachi. The direction of the learned Sessions Judge ordering de novo trial is totally opposed to principles of natural justice. The case itself had been registered as Crime No. 707 of 1984 and charge sheet has been filed in 1986 and the petitioner had been facing trial for the last six years and to order de novo trial at this stage would cause great hardship to the petitioner.

In the result, the order of the learned Sessions Judge is set aside and CC No. 115 of 1992 now pending before the Judicial Magistrate No. II, Pollachi will be transferred back to the Judicial Magistrate No. 1, Pollachi, who will continue the trial from the stage in which it presently is and conclude the trial as expeditiously as possible.