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1999 DIGILAW 478 (KER)

Jacob Stephen v. State of Kerala

1999-10-07

A.R.LAKSHMANAN, S.SANKARASUBBAN

body1999
Judgment :- AR. Lakshmanan, J. Accused Nos. 11,6,41 and 20 respectively in Crime No. 6 of 1996 of the Munnar Police Station are the petitioners in this Original Petition which was filed praying the following reliefs: "a) To call for the records leading up to Exts. P3 to P8 and quash the same by the issuance of a writ of certiorari or any other appropriate writ, order or direction. b) To declare that there is no provision either in the Code of Criminal Procedure or in any other statutes in force in the State of Kerala for establishing a Special Court for the trial of one particular sessions case. c) To declare that the 4th respondent Special Court, has no jurisdiction to try the Sessions Case arising from Crime No. 6/96 of Munnar Police Station, or to take any steps for trying that case in that Court. d) To issue a Writ of Prohibition commanding the fourth respondent to forbear from, commencing any proceedings in the case arising from Crime No.6 of 1996 of Munnar Police Station or to take any steps for commencement of the trial before it in that case. e) To issue such other writs, orders or directions as this Hon'ble Court may deem fit and proper in the circumstances of the case." Ext. P3 is the order issued by the Government of Kerala in G.O. (MS) 386/987 Home dated 22.12.98 according sanction for the establishment of an Additional Sessions Court at Kottayam for the trial of the case in Crime No. 6/96 (Sooryanelli case). Ext. P4 is the notification issued by the Government of Kerala, Home (c) Department in G.O. (MS) No. 110/99/Home dated 24.6.99 notifying the establishment of an Additional Sessions Court to sit at Kottayam for the trial of Crime No. 6/96 under S.9(1) of the Code of Criminal Procedure, 1973 (Central Act 2 of 1974) read with clause 0) of S.2 thereof, specifying the whole State of Kerala to he local jurisdiction of the said Court. Ext. P5 is the order No. B1-2176/99 issued by the Registrar of this Court appointing M. Sasidharan Nambiar, Additional District and Sessions Judge, Kottayam for the trial of Crime No. 6/96. He was directed to hold charge as Additional District and Sessions Judge, Kottayam until further orders. Ext. Ext. P5 is the order No. B1-2176/99 issued by the Registrar of this Court appointing M. Sasidharan Nambiar, Additional District and Sessions Judge, Kottayam for the trial of Crime No. 6/96. He was directed to hold charge as Additional District and Sessions Judge, Kottayam until further orders. Ext. P6 is the communication from the Government of Kerala dated 30.6.99 addressed to the two petitioners informing them that the notification constituting the Special Court for the trial of Crime No. 6/96 of Munnar Police Station has been published in the Gazette extraordinary dated 24.6.99. Ext. P7 is the notice issued by the Sheristadar of the Sessions Court, Thodupuzha dated 31.7.99 that the Sessions Case No. 35/98 (Crime No. 67/CR/96 of C.B.C.I.D., Thiruvananthapuram) is transferred as per Order No. D 359796/96 dated 29.7.1999 of the High Court to the Additional Sessions Court, Kottayam. Parties were directed to appear before the Court on receipt of summons from there. Ext. P8 is the summons issued to one of the accused person, Jacob Stephen. 2. The Original Petition was posted before Mr. J.B. Koshy, J. who, by his reference order dated 30.8.99 referred the matter for an authoritative pronouncement on the question raised by the petitioners. 3. A Division Bench of this Court on 3.9.1999 admitted the Original Petition and directed the respondents to file counter affidavits. Accordingly respondents 1,2 and 5 filed a detailed counter affidavit on 9.9.1999. A reply affidavit was filed by the first petitioner on 15.9.1999. The Registrar of this Court filed a counter affidavit on 28.9.99 along with Ext. R3 (a). A further reply affidavit was filed on 29.9.99 by the first petitioner and a memo dated 30.9.99 was filed by the Government Pleader submitting that the averments and allegations in the reply affidavit dated 29.9.99 filed by the petitioners, some of which are raised for the first time in that reply affidavit stands rebutted by the averments in the counter affidavit dated 28.9.1999 filed by the third respondent as well as the entire records produced by the third respondent (Registrar of this Court). 4. Following are the submissions made by Mr. K. Ramakumar, counsel for the petitioner. A) Crime No. 6 of 1996 had been committed to the Court of Sessions, Thodupuzha, are triable exclusively by the Court of Sessions exercising territorial jurisdiction over the area where the crime is alleged to have been registered. 4. Following are the submissions made by Mr. K. Ramakumar, counsel for the petitioner. A) Crime No. 6 of 1996 had been committed to the Court of Sessions, Thodupuzha, are triable exclusively by the Court of Sessions exercising territorial jurisdiction over the area where the crime is alleged to have been registered. Since the case has already been taken cognizance of as SC 35/98 on committal by the Court of Sessions, Thodupuzha and the accused were asked to appear before that Court and that the case had also been posted for preliminary hearing before that Court, the order sanctioning establishment of an Additional District and Sessions Court at Kottayam for the trial of the very same case is illegal and that the Ext. P3 order sanctioning an Additional Sessions Court does not trace the power of the Government to any of the provisions of the Code of Criminal Procedure. B) No power exists in the Government to establish an Additional District and Sessions Court for the trial of any particular case and the power, if at all in the Government is only for establishing a Court in every Sessions Division. Ext. P3 therefore, is patently without jurisdiction and cannot be supported by any of the provisions of the Code of Criminal Procedure. C) The constitution of Sessions Court is not part of the general administrative powers of the State but a power traceable only to the provisions of the Code of Criminal Procedure. The power if at all exercised by the Government or the High Court for that matter is traceable only to the provisions of the Code of Criminal Procedure. D) Ext. P3 is totally beyond the jurisdiction of the Government and therefore, all proceedings pursuant thereto are liable to be declared totally bad in law. E) Since Ext. P4 order issued by the Government and the proceedings marked as Ext. P5 by the High Court of Kerala trace their origin to the order of the Government under Ext. P3, they are also liable to be declared equally without jurisdiction. F) S.9(1) of the Code of Criminal Procedure speaks only of a Sessions Court for every sessions division and that does not clothe the Government with the power of specifying a particular case, the proceedings in which have already commenced before another Court of Sessions to be tried in the new Court. F) S.9(1) of the Code of Criminal Procedure speaks only of a Sessions Court for every sessions division and that does not clothe the Government with the power of specifying a particular case, the proceedings in which have already commenced before another Court of Sessions to be tried in the new Court. G) Admittedly there is no committal of the case relating to Crime No. 6/96 of the Munnar Police Station to the newly established Additional Sessions Court. There is also no order passed by the High Court on its judicial side making over that case for trial under S.194 of the Code of Criminal Procedure. H) The High Court has not exercised any powers under S.407 of the Code of Criminal Procedure on being satisfied that a fair and impartial inquiry or trial cannot be had in any Criminal Court subordinate thereto. I) The administrative order passed by the High Court, marked as Ext. P5, which is solely pursuant to an executive order earlier passed by the Government sanctioning the creation of an Additional Sessions Court at Kottayam and pursuant to the notification establishing the same and appointing an Additional District Judge for the trial of Crime No. 6/96 are totally without jurisdiction and are liable to be declared illegal and bad in law. J) The order Ext. P5 passed by the High Court amounts to interference with the judicial proceedings already commenced before a Court of Sessions and the same is therefore totally unsupportable in law and liable to be set aside. K) There is no provision in any of the enactment's now in force, empowering either the Government of Kerala or the High Court to establish a Special Court. The Code of Criminal Procedure does not provide for establishment of Special Court. The order impugned therefore, in the case are totally beyond the jurisdiction of the Government and the High Court and are liable to be set aside. L) Before passing the orders affecting the rights of others, the affected persons who had a right to be heard was not heard at all. The principles of natural justice demand that an opportunity be given to the accused to be heard before a Special Court is established without any provision of law. L) Before passing the orders affecting the rights of others, the affected persons who had a right to be heard was not heard at all. The principles of natural justice demand that an opportunity be given to the accused to be heard before a Special Court is established without any provision of law. M) The High Court has not examined the matter in detail with the consideration it warrants and has mechanically permitted itself to be drawn into an utterly malafide action by the Government. There is non-application of mind by the High Court and therefore, the orders impugned and the proceedings are to be declared as null and void and liable to be set aside. In support of the above contentions, Mr. Ramakumar cited the following rulings: i) Nirmal Singh v. State ofHaryana (AIR 1996 SC 2759) ii) The Public Prosecutor v. D. Venkataranga Reddy (916CT.L.J.1252) iii) Baljit Singh v. State ofJammu & Kashmir ((1982) 1 SCC 501) iv) Queen Empress v. NGA ThaMoung & Ors. (ILR (10) Cal. 643) v) Jagadish Prasad Gupta v. Slate of Rajasthan (1995 SCC (Crl.) 924) He also relied on certain passages from the 41st Law Commission Report. 5. Mr. K. Gopalakrishna Kurup, Public Prosecutor argued the case on behalf of respondents 1,2 & 4 to 5 and Mr. Alexander Thomas Government Pleader on behalf of respondent No. 3, the Registrar of this Court. 6. According to Mr. Gopalakrishna Kurup, the incidents in this case have occurred in a number of places starting from Munnar and spread over to Kottayam. Kuraviingad, Ernakulam, Palakkad, Kumily, Cumbam, Thani, Kanyakumari, Trivandrurn etc. and altogether there are many accused in this case and number of witnesses in various parts of Kerala and Tamil Nadu have to be examined in this case. Since expeditious conduct of the trial avoiding unnecessary delay and inconvenience of the parties was felt considering various aspects of the matter, Government felt it necessary that it would be expedient in the interest of justice that the trial of the case may be conducted exclusively by a competent court and when the matter was placed before the High Court, the High Court had recommended the establishment of a Court for the trial exclusively of the above case and initially recommended the establishment of an Additional Sessions Court for the purpose at Ernakulam. The Government considered the matter and had issued orders in G.O. (MS) 169/96/Home dated 4.7.97 according sanction for the establishment of Additional Assistant Sessions Court at Ernakulam for the trial of the case. But a suitable building at Ernakulam for housing the Court could not be located inspite of the efforts by the District Collector as well as by the Registrar of this Court Later it came to the attention of the Government that only Sessions Court/ Additional Sessions Court has the power to pass punishment under S.376 BPC and that such power is not vested with the Assistant Sessions Court/ Additional Assistant Sessions Court. Later it was found that the accommodation and other infrastructural facilities were available in Kottayam and that place was found to be more convenient and centrally located in terms of the convenience of the various parties including the accused persons, witnesses etc. The Government felt it desirable to designate the Sessions Court/ Additional Sessions Court, Kottayam to exclusively conduct the trial of Sooryanelli case. Accordingly the matter was consulted and this Court on 21.11.1998 had suggested that as the Sessions Court/ Additional Sessions Court at Kottayam are overloaded with work, a new Additional District and Sessions Court may be established at Kottayam for the above purpose and the High Court also agreed to the suggestion to shift the venue of the Court from Ernakulam to Kottayam. Accordingly, after considering all relevant aspects of the matter, Government have issued Ext. P3 G.O.(MS) 386/98/Home dated 22.12.1998 for establishing an Additional District and Sessions Court at Kottayam for trial of the above case and after cancelling G.O. (MS) 169/97/Home dated 4.7.97. Thereafter Ext. P4 order dated 26.6.99 was issued establishing in the judicial District of Kottayam an Additional Sessions Court to sit at Kottayam for trial of the above case and specifying the whole State of Kerala to be the local jurisdiction of the said Court with effect from 2,5.6.99. 7. Learned Public Prosecutor after tracing the history of the constitution of the Additional Sessions Court submitted that the Government under S.185 of the Code of Criminal Procedure has ample powers for establishing the Court. According to the learned Public Prosecutor taking of cognizance by the Sessions Court, Thodupuzha and the commencement of the proceedings will not create any legal bar for the Government to exercise its power under S.185 of the Code of Criminal Procedure. According to the learned Public Prosecutor taking of cognizance by the Sessions Court, Thodupuzha and the commencement of the proceedings will not create any legal bar for the Government to exercise its power under S.185 of the Code of Criminal Procedure. It is not correct to say that the Government have no power to establish an Additional District and Sessions Court for the trial of any particular case and that the Government while passing Ext. P3 order acted well within its powers. According to the Public Prosecutor even after committal of the case to a Sessions Court, the same can be tried by a Court of Sessions of another division and there is no illegality as contended by the petitioners and that in the present case it is not for any of the parties to move the High Court under S.407 of the Code of Criminal Procedure Code seeking a transfer of the case from Sessions Court, Thodupuzha to the Additional Sessions Court, Kottayam. It is also evident from the document produced as Ext. P7, that the transfer of the case from Thodupuzha Sessions Court, to Additional Sessions Court, Kottayam is made by an order of this Court on its administrative side. It is also not necessary that the accused in the case be given notice with regard to the transfer of the case or that they should be given an opportunity of being heard before an order like Ext. P5 is passed. It is a case of the Government that the accused in the above case including petitioners are not prejudiced by the order of transfer/ establishment of a Court of Sessions for trial of the case by the Government of Kerala and even though the petitioners refer to the newly established Court as a Special Court, it is only in the exercise of powers under S.185, the Government have acted and there is no illegality or irregularity in doing so and that S.9 of the Code of Criminal Procedure empowers the Government to establish Sessions Court. 8. 8. In the reply affidavit filed by the first petitioner it is stated that the Government have no powers under S.185 to transfer a case as contended and if such a power is conceded, a political party controlling the Government can decide any case of its choice to try in any other Court The counter affidavit filed by the Registrar refers to various communications between the Government and the High Court and the passing of the Government Orders in question. It is stated in the counter affidavit of the Registrar that the maximum sentence that could be imposed for the offence under S.376IPC could be imposed only by the Sessions Court and the proposal was placed before the Full Court for consideration and after considering the matter in detail it was resolved that since the existing District and Sessions Court at Kottayam are overloaded with work, a new Additional District and Sessions Court be established at Kottayam for the trial of the case and thereafter the Government have accorded sanction for the establishment of a new Additional District and Sessions Court at Kottayam as is evident from Ext. P3 and consequently Ext. P4 was issued. Thereafter the High Court appointed M. Sasidharan Nambiar, Additional District and Sessions Court of the newly established Court. The High Court, considering the proposal of the Government for designating the Sessions Court/ Additional Sessions Court at Kottayam for conduct of the trial of the case arising out of Crime No. 6/96 as per its Official Memorandum dated 29.7.1999 directed the District Judge, Thodupuzha to transfer the case to the newly established Additional Sessions Court at Kottayam under Ext. R3(a) which has been filed along with the counter affidavit. The Registrar has therefore, submitted that the allegations contained in Ground E at page 14 of the Original Petition are absolutely incorrect and that the impugned proceedings of the High Court were issued in exercise of its lawful powers and there is no illegality or impropriety in those proceedings. The Registrar has also placed the entire records and a perusal of the same will prove falsity of the allegations in the Original Petition. 9. The Registrar has also placed the entire records and a perusal of the same will prove falsity of the allegations in the Original Petition. 9. The First Petitioner again filed another reply affidavit reiterating his earlier stand that the High Court has not applied its mind properly to the question whether a Special Court can be established or whether a case can be transferred without hearing the affected parties. It is further submitted that there is no power in the High Court to issue an Office Memorandum like Ext. R3 (a) and transfer the case. The Government Pleader, as already noticed, filed a memo stating that the averments and allegations in the reply affidavit dated 29.9.1999 stands rebutted by the averments in the counter affidavit of the Registrar as well as the entire records produced by the third respondent. It is further stated that some Of the averments and allegations are raised for the first time in the reply affidavit dated 29.9.99. 10. Learned Public Prosecutor cited the following decisions: i) State of Kerala v. Kuttikrishnan & ors.(19wk.ut 95) ii) Kehar Singh v. The State (Delhi Admn) (AIR 1988 SC 1883) iii) S.P. of Police, C.B.I, v. Firozuddin Basheeruddin (1993 (1) KLJ 552) iv) Ranbit Yadav v. State of Bihar (AIR 1995 SC 1219) v) State v.Satwant Singh (1987(1) KLT SN Case No. 47) 11. We have carefully gone through the entire pleadings, documents marked and relied on by the parties and also entire records placed by the Registrar before this Court, judgments cited and relied on by either side. 12. S.9 of the Code of Criminal Procedure deals with Court of Session. Sub-s.(6) of S.9 provides that the Court of Session shall ordinarily hold its sitting at such place or places as the High Court may, by notification, specify but, if in any particular case, the Court of Session is of the opinion that it will tend to the general convenience of the parties and witnesses to hold its sittings at any other place in the sessions division, it may, with the consent of the prosecution and the accused sit at that place for the disposal of the case or the examination of any witness or witnesses therein. It has been laid down by the Supreme Court in AIR 1988 SC 1883 (supra) that the High Court has the jurisdiction to specify the place or places where ordinarily a Court of Session may sit within its division. The High Court can direct an Additional Sessions Judge to hold his sittings at a particular place other than the one where he normally sits. Such a power is traceable to S.9(6) and S.194. Unless the High Court has issued a notification under S.9(6), a trial cannot be held. S: 185 deals with the power to order cases to be tried in different sessions divisions. The Section corresponds to S.178 of the repealed Code of 1898. Under this Section, the State Government may direct that in case or classes of cases committed for trial in any district may be tried in any sessions division. The Section allows the State Government to direct the trial of cases in a place outside the local jurisdiction of the trial court or in a separate portion of the local jurisdiction. S.407 deals with the power of the High Court to transfer cases and appeals. The Section regulates the power of transfer by the High Court. The power of transfer under this Section is independent powers of transfer which the High Court or the Sessions Judge exercises and they are not powers in appeal, reference or revision. The powers of superintendence conferred on the High Court by Art.227 of the Constitution of India are wide enough to include the power to transfer cases. Even under this Section the commitment proceedings too may be transferred and prior to the passing of an order of transfer of the case, issue of notice to the opposite party is not mandatory and want of notice however does not amount to an illegality. 13. In ILR(IO) Calcutta 643 (supra) the High Court held that the local Government has no power under S.178 of the Code of Criminal Procedure to transfer for trial to the Court of a Commissioner a criminal case duly committed for trial to the Court of the Recorder of Rangoon, but the local Government has the power to transfer a case from the District of Rangoon to the Sessions Division of Pegu. The learned judges was of the opinion that S.178 does not deal with transfer of cases from one Court to another and a separate chapter 44 is given to such transfers and so far as the case on hand before them was concerned, Ss.526 and 527 apply and under S.526 the High Court can only act for specific reasons, the power of transfer being evidently one which ought to be rarely exercised under S.527, the equivalent of the old S.64a. The Bench held that the order of transfer must come from the Governor-General of India in Council. In that case the prisoners were prosecuted before a Magistrate having jurisdiction in the town of Rangoon, being a district in which the Recorder of Rangoon exercises powers of a Court of Session under S.60 of Burmah Courts' Act, 1875, The same Section declares that for the purpose of S.64a of the Code of Criminal Procedure, the Court of the Recorder shall be deemed to be a High Court and S.61 confers on the Recorder all the powers of a High Court under the Code of Criminal Procedure in respect of the proceedings of the Magistrate of the town. In the opinion of the Division Bench of the Calcutta High Court, it falls within the jurisdiction which the Recorder possesses, acting merely as a Court of Session. Under S.178 of the Code, the local Government may direct that any case or class of cases committed for trial in any district may be tried in any Sessions Division. In regard to such cases the Rangoon is a district and the Recorder's Court is the Court of Session of the Sessions Division. The Bench said that the conclusion is therefore inevitable that under this Section the local Government is empowered to direct that any ordinary cases committed for trial by the Recorder's Court at Rangoon shall be transferred for trial by the Sessions Division at Pegu. But if the local Government went further in and directed that a case should be tried by a particular Court, such a direction and order cannot be sustained as it is beyond S.178 of the Code. 14. In 1976 Crl.L.J.1252 (supra) the prayer is not for setting aside the order passed by the Government under S.185 of the Code of Criminal Procedure directing the trial of the case in Hyderabad Metropolitan Sessions Division. 14. In 1976 Crl.L.J.1252 (supra) the prayer is not for setting aside the order passed by the Government under S.185 of the Code of Criminal Procedure directing the trial of the case in Hyderabad Metropolitan Sessions Division. The Government in that case thought that it is desirable for the case to be tried at Hyderabad than at Anantapur. The learned Single Judge of the High Court held that there is no question of setting aside the order of the Government passed under S.185 Cr.P.C. before the complainant could invoke the power of this Court under S.407 for transfer of the case. The Court also held that under S.185, the Government can confer jurisdiction on another sessions division than the one within whose local jurisdiction the offence was committed. Under S.407, the power is given to the High Court to transfer cases from a Criminal Court subordinate to its authority to another such criminal court of equal or of superior jurisdiction and that the power given to the High Court under S.407 is inspite of the jurisdiction conferred on any Court under Ss.177 to 185 (both inclusive). It is so provided under S.407 that the High Court may order that any offence be inquired into or tried by any Court not qualified under Ss.177 to 185 but in other respects competent to inquire into or try such offences and from this provision it is clear that for any of the reasons mentioned in S.407, the High Court has absolute power to transfer a case from one Court to another competent to inquire into or try such case that the later Court has no jurisdiction conferred on it under any of the Section 177 to 185. 15. In (1982) 1 SCC 501 (supra), the powers of the High Court under S.407 is dealt with. The facts mentioned in the case would disclose that an earlier application for transfer of the case had already been rejected by the same judge of the High Court although, even at this stage, the same ground for transfer was put forward before him. The facts mentioned in the case would disclose that an earlier application for transfer of the case had already been rejected by the same judge of the High Court although, even at this stage, the same ground for transfer was put forward before him. The Bench also as a passing remark said that it would not be a correct principle to apply to the transfer of criminal cases that they should be heard at a place where a large number of witnesses are to be examined and that-the normal course of things should not have been lightly interfered with and the case should have been allowed to be tried by the Court which had territorial jurisdiction. The above judgment has no application to the case on hand but is distinguishable on facts. In the instant case when the case was detected there was a general demand from the public which was reflected in the media that the State should be more vigilant in prosecuting such offences. There were several women organisations and almost all political organisations in the State demanded for the alarming increase in the offence against women in the country. It was only in these circumstances the Government appointed a Special Prosecutor for the conduct of the case. No other consideration weighed with the Government while appointing a Special Prosecutor. It is also pointed out that the majority of the accused persons are not persons who are residing within the territorial limits of the session division Thodupuzha. 3o also majority of the witnesses proposed to be examined are also not persons who are residing within the local limits of the Sessions Court, Thodupuzha. Petitioners in the Original Petition are also residing permanently within the limits of Kottayam revenue district where the newly created Additional Sessions Court is functioning and the case in which petitioners are accused is being tried. 16. In AIR 1996 SC 2759 (supra) the learned Single Judge of the High Court transferred the case from the Court of Sessions Judge, Ambala to the Court of Sessions Judge, Chandigarh suo mote without any application having been made before him by any of the parties for the said purpose. 16. In AIR 1996 SC 2759 (supra) the learned Single Judge of the High Court transferred the case from the Court of Sessions Judge, Ambala to the Court of Sessions Judge, Chandigarh suo mote without any application having been made before him by any of the parties for the said purpose. The Supreme Court felt that even though the Single Judge of the High Court had the jurisdiction under S.41 to make such an order suo mote on its own initiative on being satisfied that a fair and impartial trail could not be held in any Criminal Court subordinate to it but in fairness to the accused it should have been done only after issuing notice to the accused and granting them an opportunity to have their say in the matter. Since that was not done, the Supreme Court interfered with the said transfer. The accused in his Memorandum of Appeal challenged the directions of the High Court on the ground that the order of transfer has been made behind his back. The Supreme Court held that these objections cannot be said to be devoid of force or merits and was of the opinion that the case should be transferred in the interests of justice. It should not have been done without notice to the parties. Therefore, the Supreme Court was of the opinion that the suo mote directions given by the learned Single Judge for transfer of the case to the Court of Sessions Judge, Chandigarh cannot be sustained more particularly in view of the difficulties expressed by some of the appellants to face the trial at Chandigarh, where they may have to engage their counsel at fresh fee etc. However the Supreme Court with a view to ensure a fair trial of the case considered it appropriate, while setting aside the directions to direct that the case arising out of FIR No. 89 shall be tried by the senior most Additional Sessions Judge, Ambala and not the Sessions Judge through whose Court it was ordered to be transferred by the learned Single Judge and that the case shall be tried by the transferee Court from the stage in which it was when the same was ordered to be transferred by the High Court. 17. We shall now deal with the cases cited by the learned public Prosecutor. 17. We shall now deal with the cases cited by the learned public Prosecutor. The first decision relied on by him is rendered by a Division Bench of this Court in 1980 KLT 95 (supra). The Head note of the decision is reproduced below: "So far as transfer of cases is concerned, a form has been prescribed only for a notice on an application for transfer filed under S . 528 of the Code of Criminal Procedure 1898. The inference is that an order transferring a case need not be in any special form. The order of transfer being expedient for the ends of justice, in the sense that it was passed for avoiding a re-starting of trial and consequent hardship to the accused, conforms to the provisions of S.407 of the Code of Criminal Procedure. The fact that the decision was recorded on an administrative file need not necessarily mean that it was an administrative order. When an authority invested with power to act in different capacities does a thing, it should be presumed that it does so in the capacity it is competent to act. In other words, since the High Court is the judicial authority competent to transfer the case under S.407 of the Code of Criminal Procedure, the inference should be that the decision to transfer the case was taken under the said provision." 18. In AIR 1988 S.C.1883 (supra) deals with the scope of S.194 among other things. The Supreme Court in that case held that the first part of S.194 clearly provides that the Sessions Judge of the Division by the general or special order is supposed to allot cases arising in a particular area or jurisdiction to be tried by Additional or Assistant Sessions Judges appointed in the division but the last part of the Section also authorises the High Court to allot the case to a particular judge keeping in view the fact that in certain cases the Sessions Judge may not like to allot and may report to the High Court or either of the parties may move an application for transfer and under these circumstances it may become necessary for the High Court to allot a particular case to a particular Judge. In this case the first part of the Section clearly provides that the Sessions Judge of the division by general or special order is supposed to allot cases arising in a particular area or jurisdiction to be tried by the Additional Assistant Sessions Judge appointed in the division but the last part of this Section also authorises the High Court to allot the case to a particular judge keeping in view the fact that in certain cases Sessions Judge may not like to allot and may report to the High Court or either of the parties may move an application for transfer and under these circumstances it may become necessary for the High Court to allot a particular case to a particular judge. The Supreme Court held that this objection is of no consequence. The other objection which has been raised by the counsel is about the issuance of a notification by the High Court under S.9(6) of Cr.P.C. and by this notification the High Court purported to direct that the trial in this case shall be held in Tihar Jail. Counsel appearing for the Delhi Administration attempted to justify such an order passed by the High Court by contending that if the High Court had the authority to issue notification fixing the place of sitting it was open to the High Court also to fix the place of sitting for a particular case whereas emphasis by learned counsel for appellants was that S.9(6) only authorises the High Court to fix the place of sitting generally. The Supreme Court held that whatever be the terms of the notification it is not disputed that it is a notification issued by the Delhi High Court under S.9(6) Cr.P.C. and thereunder the High Court could do nothing more or less than what it has the authority to do. Therefore, the said notification of the High Court could be taken to have notified that Tihar Jail is also one of the places of sitting of the Sessions Court in the Sessions Division ordinarily. That means apart from the two places Tis Hazari and the New Delhi, the High Court by notification also notified Tihar Jail as one of the places where ordinarily a Sessions Court could hold its sittings. That means apart from the two places Tis Hazari and the New Delhi, the High Court by notification also notified Tihar Jail as one of the places where ordinarily a Sessions Court could hold its sittings. In this view of the matter the Supreme Court has observed that there is no error if the Sessions trial is held in Tihar Jail after such a notification has been issued by the High Court. 19. We may, now usefully and beneficially refer to a decision of a Division Bench of this Court comprising of Mr. K.T. Thomas (J) as His Lorship then was and Mrs. K.K. Usha, (J). The scope of S.185 was considered in this decision. The Division Bench after a detailed discussion held that S.185 empowers the State Government to direct either one particular case or any classes of cases to be tried in any Sessions division and the proviso to the Section imposes a restriction on the State Government in issuing the above direction that no such direction shall be repugnant to any other directions issued by the High Court or the Supreme Court. K.T. Thomas (J.) speaking for the Bench, held as follows: "Chapter XIII of the Code consists of provisions relating to jurisdiction of the criminal courts. Normally, a case can be tried only by a Court within whose local jurisdiction the offence was committed. This principle has been recognised in S.HV of the Code. S.178 to 184 deal with different aspects of the said general rule, such as cases in which the offence was committed partly in one local area and partly in another etc. But the basic principle stands unaltered that ordinarily the case shall be tried by the Court in whose local limits the offence was committed. S.185 of the Code one of the exceptions to the said general rule. S.185 empowers the State Government to direct either one particular case or any class of cases to be tried in any sessions division. The proviso to the section imposes a restriction on the State Government in issuing the above direction that no such direction shall be repugnant to any other direction issued by the High Court or the Supreme Court. S.185 empowers the State Government to direct either one particular case or any class of cases to be tried in any sessions division. The proviso to the section imposes a restriction on the State Government in issuing the above direction that no such direction shall be repugnant to any other direction issued by the High Court or the Supreme Court. Since it is not disputed that Government of Kerala has established the Special Sessions Court (3rd and 4th Additional Sessions Court at Ernakulam are the two wings of the said special Court) with statewide jurisdiction for the trial of cases investigated by the CBI, it admits of no doubt that those additional Courts have jurisdiction to try the present case." 20. In AIR 1995 SC 1219 (supra) Mr. Jethmalani learned counsel appearing for the appellant before the Supreme Court contended that the trial which took place in the 5th Court was wholly without jurisdiction and consequently the convictions and sentences recorded by that Court were null and void. In elaborating his contention Mr. Jethmalani submitted before the Supreme Court that the High Court had no power to transfer the case from the 10th Court to the 5th Court and that the High Court had no jurisdiction or power to transfer the case from the 10th Court to the 5th Court and that too by an administrative order at a stage when, admittedly, the trial had already commenced. In that connection Mr. Jethmalani drew the attention of the Supreme Court to S.194 of the Code to contend that a plain reading of the Section would unmistakably show that the power of the High Court to direct a particular Court to try a case could be exercised only at the initial stage where trial was yet to commence and not thereafter. He next contended that the only other Section which empowered the High Court to transfer a case under the Code was S.407 but such a power could be exercised judicially only after complying with the requirements thereof and hearing the parties. Since the High Court did not exercise such judicial power, the order of transfer whereby the 5th Court acquired jurisdiction must be held to be void and ineffective. He lastly contended that such grave illegality and want of jurisdiction were not curable under S.465 of the Code. Since the High Court did not exercise such judicial power, the order of transfer whereby the 5th Court acquired jurisdiction must be held to be void and ineffective. He lastly contended that such grave illegality and want of jurisdiction were not curable under S.465 of the Code. The Supreme Court has observed on the materials placed before it that the order was passed by the High Court in its administrative jurisdiction. Under Art.227 of the Constitution of India every High Court has superintendence over all Courts and Tribunals throughout the territories in relation to which it exercises jurisdiction and its trite that this power of superintendence entitles the High Court to pass orders for administrative exigency and expediency. The Supreme Court in paragraph 13 of its judgment held as follows: "We are unable to share the above view of Mr. Jethmalani. So long as power can be and is exercised purely for administrative exigency without impinging upon and prejudicially affecting the rights or interests of the parties to any judicial proceeding we do not find any reason to hold that administrative powers must yield place to judicial powers simply because in a given circumstances they co-exist. On the contrary, the present case illustrates how exercise of administrative powers were more expedient, effective and efficacious. If the High Court had intended to exercise its judicial powers of transfer invoking S.407 of the Code it would have necessitated compliance with all the procedural formalities thereof, besides providing adequate opportunities to the parties of a proper hearing which, resultantly, would have not only, delayed the trial but further incarceration of some of the accused. It is obvious, therefore, that by invoking its power of superintendence, instead of judicial powers the High Court not only redressed the grievances of the accused and others connected with the trial but did it with utmost dispatch." The Supreme Court also held in para 15 thus:- "Since we have found that the order of transfer was made by the High Court in exercise of its administrative powers, which was available to the High Court under Art.227 of the Constitution of India the question raised by Mr. Jethmalani relating to the competence of the High Court to exercise powers under S.194 of the Code need not be answered consequently, we need not look into the interpretation of S.194 of the Code as given by the Court mKehar Singh v.ft are (1988) 3 SCC 609: AIR 1988 SC 1883), to which our attention was drawn by Mr.Jethmalani. For the foregoing discussion we find no merit in the first contention of Mr. Jethmalani." 21. On a consideration of the entire materials placed before us and of the judgments cited and exhibits marked, we are of the opinion that the Government has ample powers under S.185 of the Code for constituting a Court for the purpose of deciding the case in question. As already noticed in the decision reported in 1980 KLT 95 this Court considered and decided the very question. Identical questions as in this case were raised in the said case regarding the powers of the Government as well as the High Court to transfer a case which had already committed to the Sessions Court and even the trial of which was commenced. This Court held that under S.185 of the Code which confers the State Government the power to direct that any case or classes of cases committed for trial in any district may be tried in any sessions division. The only restriction being that such a direction is not repugnant to any direction previously issued by the High Court or the Supreme Court. It will be useful to have a reference to the observations made by this Court in Para 8 of 1980 KLT 95. Paragraph 8 reads thus: "Assuming that the order of transfer by this Court did not conform to the provisions of the Code, that could not have vitiated the subsequent trial of the case by Sri. A. Antony in his capacity as Additional Sessions Judge, Palghat, because as already mentioned, the Court that tried the case at Ernakulam was specially constituted by the Government for that purpose, at the request of the Inspector General of Police. It was this Special Court which was transferred to Palghat to work as an additional Bench there. What happened was, following the decision to transfer Sri. Antony from Ernakulam, the High Court recommended the shifting of the Special Court to Palghat. It was this Special Court which was transferred to Palghat to work as an additional Bench there. What happened was, following the decision to transfer Sri. Antony from Ernakulam, the High Court recommended the shifting of the Special Court to Palghat. The order shifting the Special Court to Palghat was passed by the Government in proceedings dated 1.8.78. The relevant portion of the order reads thus: "Sanction is accorded for the shifting of the Special Court for trial of Kumbalam Naxalite Case from Ernakulam to Palghat, with its staff." "It is thus clear that it was the Special Court for the trial of the Kumbalam Naxalite case that got shifted from Ernakulam to Palghat. S.185 of the Code of Criminal Procedure confers on the State Government the power to direct that any case or class of cases committed for trial in any district be tried in any Sessions Division, the only restriction being that such direction is not repugnant to any direction previously issued by the High Court or the Supreme Court. It was, therefore, within the powers of the State Government to shift the Special Court to Palghat and to direct that the Kumbalam Naxalite case be tried there. This means that Sri. A. Antoney who was appointed judge of the Special Court continued to have jurisdiction to try the case after his transfer to Palghat. Since it was the Court which was constituted to try the Kumbalam Naxalite case that was shifted to Palghat a transfer of the case by the High Court under S.407 of the Code of Criminal Procedure was redundant." 22. In para 8 of 1993 (1) KLT 754 -1993 (1) KLJ 552, while disposing of the said case this Court placed reliance on the observations made by the Supreme Court in Pumshottamdas v. State of W.B. (AIR 1951 SC 1589) which reads as follows: "Territorial jurisdiction is provided just as a matter of convenience, keeping in mind the administrative point of view with respect to the work of a particular Court, the convenience of the accused who will have to meet the charge levelled against him and the convenience of the witnesses who have to appear before Court. It is therefore, that it is provided in S.177 that an offence would ordinarily be tried by a Court within the local limits of whose jurisdiction it is committed." 23. It is therefore, that it is provided in S.177 that an offence would ordinarily be tried by a Court within the local limits of whose jurisdiction it is committed." 23. In this context, it is pointed out that in the present case majority of the accused persons are not persons who are residing within the territorial limits of the Sessions Division Thodupuzha. So also the majority of the witnesses proposed to be examined are also not persons who are residing within the local limits of the Sessions Court, Thodupuzha. Petitioners are residing permanently within the limits of Kottayam district. The facts and circumstances of the case discloses that it is absolutely not necessary for any of the parties to move the High Court under S.407 of the Code seeking transfer of the case from Sessions Court, Thodupuzha to the Additional Sessions Court, Kottayam. As is evident from the documents produced/Ext. P7 the transfer of the case from Thodupuzha Sessions Court to Additional Sessions Court, Kottayam is made by an order of the High Court in its administrative side. Before establishing Additional Sessions Court, Kottayam for the trial of the case arising out of Crime No. 6/96 the Government consulted the High Court and the Court was sanctioned after making necessary consultation. When once the Government or the Investigating agency approached the High Court with the proposal for establishment of a new Court to be specially Designated for trial of a case or class of cases and the High Court concurs with the proposal by the Government there is no illegality in issuing an order on the administrative side of the High Court for transfer of the records relating to the case of the newly established Additional Sessions Court for the trial of the case. There is no illegality or inherent absence of jurisdiction as contended by the petitioners. 24. None of the ground stated by the petitioners are tenable or sustainable in law and the rights of the petitioners are not denied or prejudiced in any manner as they alleged. The Court is established and the cases are transferred with a view to speedy disposal of the case which involves the examination of several number of witnesses. To avoid unnecessary delay and inconvenience of parties concerned, the Additional Sessions Court is established and the Government decided to have the trial of the case exclusively by the said Court. The Court is established and the cases are transferred with a view to speedy disposal of the case which involves the examination of several number of witnesses. To avoid unnecessary delay and inconvenience of parties concerned, the Additional Sessions Court is established and the Government decided to have the trial of the case exclusively by the said Court. We may also in this context point out that the allegations of malafides raised by the petitioners against the High Court are without any factual basis. Such wild allegations of malafides raised by the petitioners ought not to have been raised at all. The extraneous consideration as alleged by the petitioners, has not in any way influenced or weighed with the Government in arriving at the impugned decision. The allegation that the State machinery was misused for the investigation of the case due to political consideration etc. is also without any merit and is totally false and denied by the Government. The factors which weighed with the Government in taking the impugned decision have already been stated in detail in paragraphs above. The proposal of the Government was concurred with by the High Court and it was only thereafter that the impugned Exts. P3 and P4 were issued. The allegation in the Original Petition that the Government established the newly sanctioned Court only for Us evil motive in besmirching the accused persons by giving wider publicity etc. is also denied as absolutely false by the State Government. In our view the Government exercised its lawful power under due consideration of all relevant aspects in the matter and that too after the issuance of concurrence by the High Court. The Government has only taken the impugned decision in a bonafide and proper manner and no malafide or extraneous consideration weighed with the Government in this regard. Except by making wild allegations in a bald manner, the petitioners, in our opinion have not proved these allegations. 25. The Registrar of this Court has also denied the allegations made against the High Court as false. Except by making wild allegations in a bald manner, the petitioners, in our opinion have not proved these allegations. 25. The Registrar of this Court has also denied the allegations made against the High Court as false. He had referred to the various communications between the State Government and the High Court and the orders passed thereon by the High Court and of the Government and has said that that the High Court, considering the proposals of the Government for designating the Sessions Court/ Additional Sessions Court at Kottayam for the conduct of trial of the case arising out of Crime No. 6/96, the High Court has directed the District Judge, Thodupuzha to transfer the case to the newly established Additional Sessions Court at Kottayam as per ExL R3(a). The aforesaid sequence of events as pointed out by the Registrar of this Court would reveal that it was after due deliberation and consideration the matter in all its perspective that the decision was taken by the High Court to recommend for the establishment of the Court for trial of the above case. The entire records placed before us would clearly establish and prove beyond any doubt the falsity of the allegations made by the accused in the Original Petition. 26. We are of the opinion that the apprehension of the petitioners is nothing but fanciful. It is not the case of the petitioners that their case would not be fairly tried by the Additional Sessions Court at Kottayam. It is expedient to meet the ends of justice that the Additional Sessions Court established by the High Court should be allowed to function and proceed with the case. The High Court, in our opinion, is persuaded on good grounds to establish this Court on the ground that it would be expedient for the ends of justice. In our opinion, the interest of not only the accused but also of the complainant, prosecution has also been looked into by the High Court and the Government. No hard and fast rule can be laid down as a matter of principle. In the circumstances of the case, the ends of justice will be better served if the trial takes place at Kottayam and Kottayam only. If the general convenience of the parties and the witnesses so warrants, a transfer by the High Court can certainly EHordered. No hard and fast rule can be laid down as a matter of principle. In the circumstances of the case, the ends of justice will be better served if the trial takes place at Kottayam and Kottayam only. If the general convenience of the parties and the witnesses so warrants, a transfer by the High Court can certainly EHordered. Unfounded belief in the minds of the accused that the ruling party which is in power in the State has been attempted to implicate them, cannot be a valid ground to entertain the writ petition. The apprehension, in our opinion, is nothing but imaginary. Before coming to a close of this case, we say that the remarks made by the petitioners against the High Court is totally unwarranted. Such comment on the High Court is totally unwarranted and the facts discussed by this Bench in paragraphs supra with reference to the records would only disclose that the petitioners have come to this Court with some malafide intention and to protract their case as far as they could. The petitioners have approached this Court with unclean hands. Such a request, in our opinion, cannot at all be conceded/and, therefore, we hold that the Writ Petition have absolutely no merits and is liable to be dismissed. Accordingly, the Original Petition is dismissed. However, taking a lenient view of the matter we order no costs.