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2008 DIGILAW 640 (MAD)

Jayakumari @ Sabeeha Banu v. M. Balasubramanian

2008-02-22

M.JEYAPAUL

body2008
Judgment :- The petition is filed by the complainant seeking to withdraw Criminal Appeal No.44 of 2001 from the file of the learned Sessions Judge, Chennai and transfer the same to this court for disposal invoking the provision under section 407(1)(b) read with 407(i)(iv) of the Code of Criminal Procedure. 2. The petitioner launched the prosecution as against two accused viz., Balasubramanian, the respondent herein and Venugopal Raj for the offences punishable under sections 365, 369, 344, 347, 384 and 167 of the Indian Penal Code. The learned Chief Metropolitan Magistrate, Chennai took the case on file in C.C.No.10882 of 1991 and passed judgment dated 12. 2001 convicting both the accused for the offences punishable under sections 344, 347, 384 and 365 of the Indian Penal Code. .3. One of the accused by name Balasubramanian preferred Criminal Appeal No.44 of 2001 on the file of the learned Principal Sessions Judge, City Civil Court, Chennai aggrieved by the aforesaid judgment of conviction recorded by the Trial Court in C.C.No.10882 of 1991. 4. During the pendency of the Criminal Appeal, the respondent filed a petition seeking reference to this court in SR.3850 of 2005 which was rejected. 5. The petitioner, who is the complainant, has now come forward with the present petition seeking transfer of the Criminal Appeal invoking the provision under section 407 (1)(b) of the Code of Criminal Procedure Code. 6. The main contention of the petitioner is that some question of law of unusual difficulty has arisen in Criminal Appeal No.44 of 2001 pending on the file of the Principal Sessions Judge, Chennai and therefore, the case will have to be transferred to the file of this court for disposal. 7. Learned counsel appearing for the petitioner would contend that two important questions of law as to whether the voluntary statement given by a person to the police during the course of investigation would be treated as a statement under section 161 of the Code of Criminal Procedure, whether an issue of fact decided by a Tribunal would bind the Criminal Court. These two difficult questions of law will have to be decided only by the High Court, he would further contend. 8. Learned counsel appearing for the respondent would submit that the petition has been filed only to deprive the appellant from his right of appeal before the Principal Sessions Judge, Chennai. These two difficult questions of law will have to be decided only by the High Court, he would further contend. 8. Learned counsel appearing for the respondent would submit that the petition has been filed only to deprive the appellant from his right of appeal before the Principal Sessions Judge, Chennai. The questions of law raised by the petitioner can be very easily answered by referring to the provisions of the Code of Criminal Procedure in the background of the authorities laid down by this court and also by the Supreme Court. .9. This court has ample power under section 407 of the Code of Criminal Procedure to transfer any case or appeal to its file in case if the High Court comes to the conclusion that some question of law of unusual difficulty is likely to arise in such case. A party to the proceedings cannot put a spoke to such a power conferred by the statute under section 407 of the Code of Criminal Procedure contending that the right of appeal would be affected if an appeal is transferred to the higher forum. It is not as if the right of appeal was taken away by the court of law. He has got a right of appeal before ever marching into, of course with the special leave granted to him, the portals of the Honourable Supreme Court. Therefore, the plea of the respondent that his right of appeal will be affected if the provision under section 407(1)(b) is invoked, is found not sustainable. 10. Coming to the so-called "question of law of unusual difficulty", the court finds that if the appellate Judge reefers to section 161 and section 163(3) of the Code of Criminal Procedure, in the background of catena of decisions already rendered by this court as well as by the Honourable Supreme Court, she can very well decide the question as to whether a voluntary statement made to a police officer can be treated as a statement under section 161 of the Code of Criminal Procedure. Further, there are humpty number of decisions to decide the issue whether a fact in issue decided by a Tribunal would bind the Criminal Court. Therefore, in the considered opinion of this court, these two major questions of law arising in the appeal can very well be decided even with accuracy by the appellate court. Further, there are humpty number of decisions to decide the issue whether a fact in issue decided by a Tribunal would bind the Criminal Court. Therefore, in the considered opinion of this court, these two major questions of law arising in the appeal can very well be decided even with accuracy by the appellate court. In view of the above, it is found that these two issues do not at all pose unusual difficulty in deciding the same. 11. In view of the above, the court finds that there is no merit in the Criminal Original Petition filed by the petitioner seeking transfer to the file of this court for determination invoking the provision under section 407(1)(b) of the Criminal Procedure Code. Therefore, the petition stands dismissed. The connected Miscellaneous Petition also stands dismissed. 12. It is found that the appeal is pending disposal right from the year 2001. Therefore, the learned Principal Sessions Judge, Chennai is directed to dispose of Criminal Appeal No.44 of 2001 pending on her file within a period of two months from the date of receipt of copy of this order.