K.K. Narendran, J.
1. This is an application to transfer a Sessions Case, popularly known as 'Karikkanvilla Murder Case', from the Additional Sessions Court, Mavelikkara to the Sessions Court, Alleppey. The case was committed to the Sessions Court, Alleppey but the same was made over to the Additional Sessions Judge Mavelikkara by the Sessions Judge, Alleppey. The application has been made under Sections 407 and 482 of the Code of Criminal Procedure by the State represented by the Superintendent of Police, Alleppey, The stand taken in the application is that for the general convenience of the parties, witnesses and Ors. who have to attend the trial the case should be transferred to the Sessions Court. Alleppey. One of the reasons alleged is that there is not enough accommodation facilities at Mavelikkara and this will result in great inconvenience especially to the witnesses from outside the State numbering 59.
2. Respondents 1, 3 and 4 have filed counter-affidavits. These accused have opposed the transfer on various grounds.
3. The learned Additional Advocate General appearing for the State contended that this Court can order a transfer of the case to the Sessions Court. Alleppey or to any other Sessions Court if the general convenience of the parties and witnesses requires such a transfer. The learned Additional Advocate General pointed out that in view of the fact that a large number of witnesses are from Madras and other places outside the State, accommodation will be a problem if the trial is to be conducted at Mavelikkara. According to the Additional Advocate General, if the trial is conducted at Alleppey, which is a district headquarters, accommodation will not be a problem and hence a transfer of the case to the Sessions Court, Alleppey will tend to the general convenience of the parties and witnesses. The learned Counsel for the accused contended that now at Mavelikkara there is enough hotel accommodation and hence there is no justification to transfer the case for want of accommodation. It was also pointed out that the alleged offence was committed within the jurisdiction of the Additional Sessions Court, Mavelikkara and a good number of witnesses are from places nearer to Mavelikkara. The learned Counsel also contended that without first moving an application for transfer before the Sessions Court. Alleppey this application will not lie before this Court in view of the nroviso to Sub-section (2) of Section 407 of the Code. A contention that the Sessions Judge has power under Section 409(2). and hence this application will not lie was also taken.
4. Section 407 of the Code of Criminal Procedure, 1908 reads:
407. Power of High Court to transfer cases and appeals.- (1) Whenever It is made to appear to the Hiffh Court-
(a) that a fair and impartial injury or trial cannot be had in any Criminal Court subordinate thereto, or
(b) that some question of law of unusual difficulty is likely to arise, or
(c) that an order under this section is required by any provision of this Code, or will tend to the general convenience of the parties or witnesses, or is expedient for the ends of justice.
it may order-
(i) that any offence be inquired into or tried by any Court not qualified under Sections 177 - 185 (both inclusive), but in other respects competent to inquire into or try such offence;
(ii) that any particular case or appeal, or class of cases or appeals, be transferred from a Criminal Court subordinate to its authority to any other such Criminal Court of equal or superior jurisdiction;
(iii) that any particular case be committed for trial to a Court of Session; or
(iv) that any particular case or appeal be transferred to and tried before itself.
(2) The High Court may act either on the report of the Lower Court, or on the application of a party interested, or on' its own initiative:
Provided that no application shall lie to the High Court for transferring a case from one Criminal Court to another Criminal Court in the same Sessions Division, unless an application for such transfer has been made to the Sessions Judge and rejected by him.(3) to (9) ...
Section 408 of the Code reads:
408. Power of Sessions Judge to transfer cases and appeals.- (1) 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.
Section 409 of the Code reads:
409. Withdrawal of cases and appeals by Sessions Judges.- (1) A Sessions Judge may withdraw any case or appeal from, or recall any case or appeal which he has made over to any Assistant Sessions Judge or Chief Judicial Magistrate subordinate to him.
(2) 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.
For the transfer of a case pending in a court an application for transfer has to be filed in a Court of superior jurisdiction. In other words, a Court has power only to transfer a case pending in a Court subordinate to it. An Additional Sessions Court and a Sessions Court are Courts of equal jurisdiction. Hence the power under Section 408 of the Code cannot be invoked for the transfer of a Sessions Case from an Additional Sessions Court to a Sessions Court. This is also clear from Section 409 which empowers the Sessions Judge to recall any case made over to an Additional Sessions Judge. This is a case made over to the Additional Sessions Judge, Mavelikkara by the Sessions Judge. Alleppey. The prohibition in the proviso to Sub-section (2) of Section 407 will have application only in cases where the Sessions Judge has the power to transfer. In a case where the Sessions Judge has no power of transfer no question of moving the Sessions Judge for a transfer arises. So, it goes without saving that an application for transfer of a Sessions Case made over to an Additional Sessions Judge can be entertained by the High Court under Section 407 as the same will not be hit by the proviso to Section 407(2). The further question is whether on the merits this application can be allowed. There are 108 witnesses for the prosecution. 59 of the witnesses are from Madras and other places outside the State. The trial is bound to go on for weeks. At least accommodation will be a problem at Mavelikkara which is not even a district headauarters. The accused also do not belong to Mavelikkara. So, it cannot be said that a transfer of the case to the Sessions Court, Alleppey will not tend to the general convenience of the parties or witnesses. The learned Additional Advocate General submitted that if for any reason this Court is not for transferring the case to the Sessions Court. Alleppey, the case may be transferred to the Sessions Court, Ernakulam. No doubt, under Sec, 407 the High Court has suo motu powers also to transfer a Sessions Case to a Sessions Court which has no local iurisdiction to try the offence. In this case, the power is exercised on the application of a partv interested and the reauest in the application is for a transfer to the Sessions Court, Alleppey. So. on this application if a transfer is to be ordered it can only be to the Sessions Court, Alleppey. Suo motu powers cannot be exercised when the power has been invoked by an application.
5. It was pointed out by the counsel for the accused that if the trial is to be at Alleppey the accused will be put to the difficulty of covering all the distance from the Sub Jail to the Court by foot. I direct the Police that the accused should be taken to court and back to Sub Jail only in vehicles. It was also pointed out that all the advocates engaged by the accused are those practising in Courts in and around Mavelikkara and if the case is transferred to Alleppey the accused may be deprived of their counsel as they may not be in a position to meet their expenses at Alleppey. This is not a difficulty which cannot be overcome. There is provision for engaging counsel at State cost if an accused is not in a position to engage a counsel to defend him. If the accused want to conduct the case by the same advocates, the Sessions Judge can consider the auestion of appointing the same advocates at State cost.
6. The accused are under trials under bars. They are there now for a considerable period. It is only proper that the trial is conducted without further delay. The Sessions Judge, Alleppey is to start the trial at least within six weeks from today. If that is not possible, the Sessions Judge should jmmediately report to this Court.
7. In the result, this atralication for transfer is allowed and Sessions Case No. 11 of 1981 now pending before- the Additional Sessions Court, Mavelikkara is transferred to the Sessions Court, Alleppey.