ORDER : This is a petition filed under Section 407 of the Code of Criminal Procedure, 1973 (the Code). Transfer of C.C.No.2242 of 2015 pending before the Court of additional Chief Judicial Magistrate, Thiruvananthapuram to the Court of Enquiry Commissioner and Special Judge, Thiruvananthapuram is sought. The purpose of transfer is to try that case along with C.C.No.5 of 2019 pending before the Special Court. The investigation officer in C.C.No.5 of 2019 is the petitioner. 2. The petitioner would contend that the facts based on which initiated both the cases are the same. In regard to the same incident both the cases arose. Witnesses to be examined and documents to be referred in both cases shall also be more or less the same. Therefore, trial of the cases in parallel will cause injustice to the witnesses and would be a reason for delay. Only difference being the offences involved, a joint trial of both the cases is in the interest of justice. Accordingly the petitioner seeks to order transfer of C.C.No.2242 of 2015 from the Court of additional Chief Judicial Magistrate, Thiruvananthapuram to the Special Court (CBI), Thiruvananthapuram. 3. Heard the learned Standing Counsel for the CBI, the learned Senior Public Prosecutor, and the learned counsel for respondent Nos.3 and 5. 4. The learned counsel for respondent No.5 raised a contention regarding maintainability of the petition for the reason that the petitioner did not first approach the Sessions Court, Thiruvananthapuram for an order of transfer under Section 408 of the Code. The proviso to Sub-section(2) of Section 407 of the Code bars filing of a petition before 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. Here, both courts are at Thiruvananthapuram and therefore it was contended that the petitioner should have first approached the Sessions Court, Thiruvananthapuram. 5. The question of maintainability was considered by this Court owing to an objection raised by the Registry at the time of filing of this petition. Here, both courts are at Thiruvananthapuram and therefore it was contended that the petitioner should have first approached the Sessions Court, Thiruvananthapuram. 5. The question of maintainability was considered by this Court owing to an objection raised by the Registry at the time of filing of this petition. This Court after hearing both sides, held as per the order dated 16.12.2019 ( Additional Superintendent of Police, CBI, Cochin v. State of Kerala and Another [ 2020 (1) KLT 631 ] ) that an application for transfer of a case pending before a Court within a sessions division to a Special Court constituted under Section 3 of the Prevention of Corruption Act, 1988 (PC Act) or vice versa would not lie to the Sessions Court of that sessions division, but only to the High Court. Therefore, the said question does not survive for consideration. 6. The offences alleged in C.C. No.5 of 2019 pending before the Special Court are punishable under Section 120B read with 409 and 420 of the Indian Penal Code, 1860 and Section 13(1)(c) and (d) r/w Section 13(2) of the PC Act. There are 8 accused in that case, one among them is Sri.Rajesh Narayanan. He is the sole accused in C.C. No.2242 of 2015 pending before the Court of additional Chief Judicial Magistrate, Thiruvananthapuram. The offences in that case are punishable under Sections 406 and 420 of the IPC . Although offences are different, both those cases are regarding the same incident. 7. The core allegations forming the basis of accusation are the following: M/s. Hindustan Latex Limited decided to export mercantile products. For this purpose, it floated a tender to purchase iron ore. Eventually HLL decided to purchase iron ore from M/s.Rama Shipping Services, Bangalore, Chief Executive Officer of which is Sri.Rajesh Narayanan, the common accused. Rs.2 crores was paid to M/s.Rama Shipping Services in advance towards the cost of iron ore. M/s.Rama Shipping Services and its Chief Executive Officer did not supply iron ore as agreed. The security obtained concerning the said transaction was 2 post dated cheques alone. Since M/s.Rama Shipping Services violated the contract conditions and the assurance, the cheques were presented for encashment but the same were returned dishonoured. As a result, HLL sustained a loss of Rs.4,15,46,219/- which includes the interest. 8. In C.C.No.2242 of 2015, the allegations are that Sri.Rajesh Narayanan received the money deceptively and misappropriated the same. Since M/s.Rama Shipping Services violated the contract conditions and the assurance, the cheques were presented for encashment but the same were returned dishonoured. As a result, HLL sustained a loss of Rs.4,15,46,219/- which includes the interest. 8. In C.C.No.2242 of 2015, the allegations are that Sri.Rajesh Narayanan received the money deceptively and misappropriated the same. Besides those allegations, a conspiracy hatched in between himself and the other accused in C.C. No.5 of 2019 is alleged in that case. From the narration above, it can undoubtedly be said that the facts forming the basis for accusation in both cases are essentially the same. Of course, there is difference inasmuch as in C.C.No.5 of 2019 the conspiracy aspect and involvement of Sri.Rajesh Narayanan’s co- accused in the deceptive act for obtaining Rs.2 crores are additions. The question then is can, in spite of such difference, both cases be consolidated? 9. The learned counsel for the 5 th respondent-Sri. Rajesh Narayanan would submit that the case before the learned additional Chief Judicial Magistrate was initiated at the instance of officials of the HLL in order to defend the case before the Special Court in which they are also the accused and if the case before the Court of additional Chief Judicial Magistrate is transferred to the Special Court, in the light of such a conflict, great prejudice would be caused to the 5 th respondent particularly. It is submitted that both cases can never be tried together in the light of such mutual conflict and therefore no transfer can be ordered. 10. Section 223 of the Code enables joint trial of persons charged with different offences committed in the course of the same transaction. As stated, both cases are relating to the same incident. The documents to be proved in both the cases concerning the matter in issue may be common. There are common witnesses as well. The facts in issue at trial in both cases would mostly be common also. In the said circumstances, it may be said that both cases can be tried together. But, the contentions of the 5 th respondent deserves consideration. 11. Undoubtedly, in the point of view of the 5 th respondent there is tangible conflict between the case before the additional Chief Judicial Magistrate and the case before the Special Court. In the said circumstances, it may be said that both cases can be tried together. But, the contentions of the 5 th respondent deserves consideration. 11. Undoubtedly, in the point of view of the 5 th respondent there is tangible conflict between the case before the additional Chief Judicial Magistrate and the case before the Special Court. So is in the case of other accused, since they may have to adduce evidence in the case before the additional Chief Judicial Magistrate in deviation from the allegations in the other case. Certainly, such a conflict does not allow consolidation or joint trial of the two cases. But that is not decisive while considering the question of transfer. 12. The law laid down by the Apex Court in Kewal Krishan, S/o.Lakshman Das v. Suraj Bhan and another [ AIR 1980 SC 1780 ] is relevant. In that case two proceedings originated regarding the same incident. But one arose on a complaint and the other on a police report. There were conflicts between the allegations in the two cases. The Apex Court held that both the cases should be tried separately but by the same court to avoid risk of two courts coming to conflicting judgements. 13. The Apex Court in Harjinder Singh v. State of Punjab and others [ AIR 1985 SC 404 ] considered a similar question. In that case also there were two cases regarding the same incident; one on a police report and the other on a complaint. It was held that the two cases should be tried separately but by the same Court to avoid the risk of two Courts coming to conflicting findings. Although clubbing the two cases as provided in Section 210 of the Code is not permitted in such a situation, trial of two cases arising out of the same transaction shall be tried separately by the same Court. The Apex Court reiterated the principle in Pal alias Palla v. State of Uttar Pradesh [ 2010 (10) SCC 123 ] . Viewed in the light of the aforesaid proposition of law, the trial of both the cases here shall be by the same court. Simultaneous disposal of both cases is required failing which there may be conflicting decisions and, also there will be a risk of attracting the bar under Article 20(2) of the Constitution of India as well as Section 300 of the Code. Simultaneous disposal of both cases is required failing which there may be conflicting decisions and, also there will be a risk of attracting the bar under Article 20(2) of the Constitution of India as well as Section 300 of the Code. 14. The question next arises is, can the case pending before the Court of additional Chief Judicial Magistrate be transferred to the Special Court and tried by the Special Court? Section 3 of the PC Act empowers a Special Court to try any offence punishable under the PC Act as well as any conspiracy, attempt or abetment to commit any offence under the PC Act. Going by the provisions of Section 4(3) of the PC Act, a Special Judge appointed under Section 3 has jurisdiction, when trying any case, to try any offence, other than an offence specified in section 3, with which the accused may, under the Code be charged at the same trial. The said provisions conjointly permit a Special Judge to try any offence, however, only if the offences charged include an offence under the PC Act or a conspiracy, attempt or abatement connected to that offence. Here, the offences alleged in the case pending before the Court of additional Chief Judicial Magistrate are punishable under Sections 406 and 420 of the IPC alone. Hence, the Special Court has no jurisdiction to try that case. 15. The Special Court for the trial of CBI cases, Thiruvananthapuram was established as per the Government Order No.G.O.(Ms.)205/2011/Home dt.20.09.2011. The said order reads as follows: “ GOVERNMENT OF KERALA Abstract Home Department - Judiciary – Commencement of CBI Court at Thiruvananthapuram - Orders Issued ________________________________________________ Home (C) DEPARTMENT G.O.(Ms.)205/2011/Home Dated,Thiruvananthapuram, 20.09.2011 ________________________________________________ Read 1) G.O.(Ms)No.120/2011Home dated 03.06.2011 2) Letter No.D7-61340/2003 dtd.07.09.2011 of the High Court of Kerala, Ernakulam ORDER As per the Order read as first above, the Government have accorded sanction for the setting up of a CBI Court at Thiruvananthapuram. The Registrar (Subordinate Judiciary) High Court of Kerala, as per the letter read as second above, has informed that steps have been taken for the commencement of the Court with effect from 26.09.2011. As per the proposal contained in the said letter, the area of jurisdiction of the said Court is the area comprised in the Judicial Districts of Thiruvananthapuram, Kollam, Pathanamthitta, Alappuzha and Kottayam. As per the proposal contained in the said letter, the area of jurisdiction of the said Court is the area comprised in the Judicial Districts of Thiruvananthapuram, Kollam, Pathanamthitta, Alappuzha and Kottayam. Government have examined the matter in detail and are pleased to notify the commencement of the Additional Sessions Court at Thiruvananthapuram with effect from 26.09.2011 for the trial of SPE and CBI cases with jurisdiction over the areas comprised in the judicial districts of Thiruvananthapuram, Kollam, Pathanamthitta, Alappuzha and Kottayam. The High Court will make the appointment of the Additional Sessions Judge in conformity with the provisions in sub-sections (3) and (4) of Section 9 of the Code of Criminal Procedure, 1973 . (By order of the Governor) K.JAYAKUMAR Additional Chief Secretary to Government 16. The said court was notified as a Special Court for the trial of SPE and CBI cases. Obviously, the Judge in that court was appointed as a Special Judge under Section 3 of the PC Act and as an additional Sessions Judge in terms of Sub-sections (3) and (4) of Section 9 of the Code. As envisaged in the said Government order the High Court appointed an additional Sessions Judge to the said court obviously in terms of Sub- sections (3) and (4) of Section 9 of the Code. Inevitably appointment as the Special Judge for a trial of PC Act offences has to be made by the Central or State Government under the provisions of Section 3 of that Act. Therefore the Special Court, Thiruvananthapuram has the dual capacity, as a Special Judge under the PC Act and an additional Sessions Judge. 17. In the capacity of an additional Sessions Judge, that court can certainly try C.C. No. 2242 of 2015 now pending before the additional Chief Judicial Magistrate provided it is committed to the Sessions Court. Needless to say, a Sessions Court can take cognizance of an offence only if the case is committed to it in view of the provisions of Section 193 of the Code. So, there cannot be an order directing the transfer of C.C. No.2242 of 2015 from the Court of additional Chief Judicial Magistrate to the Special Court/Additional Sessions Court. But, this court in the exercise of its powers under sub clause (iii) of Section 407(1)(c) of the Code can direct the additional Chief Judicial Magistrate to commit the said case to the Sessions Court. But, this court in the exercise of its powers under sub clause (iii) of Section 407(1)(c) of the Code can direct the additional Chief Judicial Magistrate to commit the said case to the Sessions Court. Accordingly, this transfer petition is disposed of directing the additional Chief Judicial Magistrate, Thiruvananthapuram to commit C.C. No. 2242 of 2015, now pending before it, under Section 323 of the Code to the Sessions Court, Thiruvananthapuram. The Sessions Court shall make over that case to the additional Sessions Judge (Court of the Special judge for the trial of SPE CBI), Thiruvananthapuram. That court shall try and dispose of both C.C. No. 5 of 2019 now pending before it and C.C. No. 2242 of 2015 now pending before the additional Chief Judicial Magistrate, Thiruvananthapuram following the procedure mentioned hereinbefore.