Devarasu and 6 Others vs The State

M. Karpagavinayagam, J.

Two interesting questions of law have arisen in this Suo Motu Revision for consideration before this Court, which are as follows:

Can a Sessions Judge, in a single Sessions Division, exercise jurisdiction to transfer a Sessions case pending on the file of an Additional Sessions

Judge with co-existing jurisdiction u/s 408 of Criminal Code Procedure irrespective of the stage, considering the said Additional Sessions Judge to

be a criminal Court as referred in the said section?

Can the same Sessions Judge exercise jurisdiction alternatively u/s 409(2) Code of Criminal Procedure to withdraw a Sessions case made over

earlier u/s 194 Code of Criminal Procedure, pending on the file of the Additional Sessions Judge with co-existing jurisdiction after framing of the

charge and recording the plea of the accused and before the commencement of the examination of the witnesses?

The short facts are the following:

In a case of murder, the charge-sheet was filed before the Judicial First Class Magistrate, Karaikal against seven accused. The learned Magistrate

committed the case to the Principal Sessions Judge, Pondicherry for trial. Thereafter, the learned Principal Sessions Judge made over the case for

trial to the learned Additional Sessions Judge, Karaikal. The accused persons appeared before the said Court, which, in turn, framed charges

against them for the various offences including of murder and recorded their statement pleading not guilty.

Then, the case was posted for the examination of witnesses to a later date. At this stage, the accused persons filed a petition before the learned

Principal Sessions Judge, Pondicherry, requesting transfer or withdrawal from the Additional Sessions Judge on making some allegations against

the Additional Sessions Judge and to post it either before himself or before some other competent Court This petition for transfer was entertained

and stay was granted.

Public Prosecutor, Pondicherry after having taken notice, filed a counter. On receipt of the counter, the learned Principal Sessions Judge called

for remarks from the Additional Sessions Judge in regard to the allegations.

On receipt of the stay order, the learned Additional Sessions Judge, sent a letter to the High Court expressing his inability to go on with the

Sessions trial, in view of the stay order by the Principal Sessions Judge, which is not legal. He also sent a letter to the learned Principal Sessions

Judge stating that he has already addressed the High Court with reference to the above situation.

On receipt of the letter of the Additional Sessions Judge, Karaikal, the Honorable The Chief Justice directed the Registry to post the matter

before this Court by way of suo motu Revision to decide the jurisdiction of the Principal Sessions Judge with regard to the maintainability to the

transfer petition before the Principal Sessions Judge.

In the meantime, the learned Principal Sessions Judge after hearing the counsel for the Petitioner and the learned Public Prosecutor, recalled the

case from the Additional Sessions Judge and posted the matter before himself for trial.

This is how the suo motu Revision has come up before this Court.

After sending notice to the parties concerned, the questions of law raised above have been formulated for consideration and determination by

this Court.

This Court, apart from the submissions made by the Public Prosecutor for Pondicherry and the counsel for the accused, invited the assistance

of the Bar. Mr. V. Padmanabhan, with his usual enthusiasm, volunteered to render his able assistance to enable this Court to go into these

questions in depth.

Before I enter into the arena of discussion with reference to the questions raised above, let me at the outset give out the details of the

submissions made by the respective counsel.

Mr. Murugesan, the learned Public Prosecutor for Pondicherry, has elaborately argued by reading out the relevant provisions of the Code of

Criminal Procedure and other statutes and made lucid and effective submissions at length and cited several authorities before this Court.

The learned Public Prosecutor is clear and categoric in his submissions that the Principal Sessions Judge has got powers to transfer the

Sessions case from the Additional Sessions Judge both under Sections 409 and 408 Code of Criminal Procedure and that therefore, the order

entertaining the transfer petition, granting stay of the proceedings and the order allowing the application for transfer by recalling the said case from

the Additional Sessions Judge and posting it before himself for trial would be perfectly valid and in accordance with law.

To put it briefly the crux of his contention in support of the orders of the Principal Sessions Judge is this:

Under Section 409(2) the Sessions Judge is empowered to withdraw or recall the sessions case already made over by him to the Additional

Sessions Judge before the commencement of trial. In this case, the examination of the witnesses did not commence and as such, the trial has not

commenced. Framing of the charge and recording the plea of the accused would not amount to commencement of trial. Therefore, the Sessions

Judge has correctly exercised power u/s 409(2) Code of Criminal Procedure Assuming that the framing of the charge would amount to

commencement of trial as provided in Section 409(2), alternatively, the Sessions Judge u/s 408 Code of Criminal Procedure has got powers to

transfer the case from one criminal Court to another criminal Court, as the Additional Sessions Judge is a criminal Court as contemplated in the

said section.

In elaboration of the contention referred to above, the learned Public Prosecutor for Pondicherry has made submissions as detailed below:

(a) Section 409(2) provides for the recalling of the case already made over u/s 194 of Code of Criminal Procedure by the Sessions Judge from the

Additional Sessions Judge before the commencement of trial. Mere framing of the charges would not amount to commencement of trial. The

inquiry is defined u/s 2(g) of Code of Criminal Procedure Under this section the inquiry means, other than the trial. However, the term ''trial'' is not

defined in the Code. In fact, in the old Code, 1872, the term ''trial"" was defined. But, this was omitted in 1882 Code. Only on the commencement

of the examination of witnesses the trial is commenced. This conclusion can be inferred by reading the wordings in Section 228(1)(a) Code of

Criminal Procedure As per this sections, if the Additional Sessions Judge found that the offence is not triable by the Sessions Judge, but only triable

by the Magistrate, he may frame charge and transfer the case for trial to the Chief Judicial Magistrate.

(b)Under the old Code, the Sessions Judge can straightaway proceed to try the accused after committal. Under the new Code, Judge has to fix a

date for examination of the witnesses and then to issue process for appearance of the witnesses. This new procedure in Sessions cases is available

even not in the Warrant cases. So, this legislative change regarding the fixing the date for examining the witnesses under the new Code indicates

that the stage up to the framing of the charge and the stage of examining the witnesses are two distinct and water tight compartments. This also

would reveal that the trial commences only on the date of examination of the witnesses. Section 437(6) Code of Criminal Procedure mandates the

Legislature to release the accused persons, if the trial is not concluded within 60 days from the first date fixed for taking evidence.

So, the above conclusion is fortified by this provision also.

(c)This Court earlier in the decision in Sankaralingain and Anr. v. State (1991(2) M.W.N. (Crl.) 17) observed that the commencement of trial is

on the date of framing of the charge and recording the plea of the accused. In this decision there is no discussion with reference to the above point

while coming to the above conclusion. The said decision of this Court merely followed the citations rendered by other High Courts. Therefore, the

legal ratio has not been decided on the basis of reasoning in the said decision. As such, this decision need not be followed. In the event of this

Court coming to the conclusion that the said decision is correct, alternatively. Section 408 Code of Criminal Procedure confers powers to the

Principal Sessions Judge to transfer from the Additional Sessions Judge being a subordinate Criminal Court at any stage for the following reasons:

(i) Section 6 Code of Criminal Procedure provides the Court of Session as a Criminal Court. u/s 9 Code of Criminal Procedure, the High Court

can appoint the Sessions Judge, Additional Sessions Judges and Assistant Sessions Judges to exercise jurisdiction in a Court of Session. u/s 10(3)

Code of Criminal Procedure, the Sessions Judge can direct the Additional Sessions Judge to look after any specified work or other engagement.

Under Rule 314 of the Criminal Rules of Practice, the Additional Sessions Judges shall submit the copies of their judgments only to the Sessions

Judge, who, in rum, would transmit the same to the High Court. Therefore, there is an element of subordination and the Additional Sessions Judge

is a Criminal Court subordinate to the Sessions Judge, as provided u/s 408 Code of Criminal Procedure

(ii) u/s 194 Code of Criminal Procedure, the Sessions Judge makes over Sessions cases to the Additional Sessions Judge for trial. Section 381(2)

Code of Criminal Procedure also provides for the Sessions Judge for making over the appeals to the Additional Sessions Judge. Section 400

Code of Criminal Procedure gives power to the Sessions Judge to transfer the case to the Additional Sessions Judge. So, the combined reading of

Sectio1ns 194, 381(2) and 400 of Code of Criminal Procedure would not only disclose that the Additional Sessions Judge is subordinate to the

Sessions Judge, but also it is permissible for the 12 Sessions Judge, to transfer the case to the Additional Sessions Judge. Therefore, Section 408

Code of Criminal Procedure gives power to the Sessions Judge for transfer of a case pending before the Additional Sessions Judge.

(iii) u/s 407(2) Code of Criminal Procedure, the High Court can be moved for transfer, only after it is rejected by the Sessions Judge seeking

transfer of a case from one Criminal Court to another criminal Court in the same Sessions Division. In view of this section, while seeking transfer

from one Additional to another Additional Court, one has necessarily to approach the Sessions Judge u/s 408 Code of Criminal Procedure Section

408 being an independent provision, does clothe with the Sessions Judge the power of transfer of the cases pending before the Criminal Courts in

the same Sessions Division. Unless this is rejected by the Sessions Judge, High Court cannot entertain the application u/s 407 Code of Criminal

Procedure Therefore, apart from the specific provision u/s 408 Code of Criminal Procedure empowering the Sessions Judge for transfer of the

case pending before the Additional Sessions Judge, Section 407(2) Code of Criminal Procedure also would make it clear that for the transfer of a

case from the Additional Sessions Judge, the Sessions Judge has to be approached first.

(iv) Section 24 of the CPC deals with the power of Sessions Judge with regard to the transfer of civil cases. Section 24(3) CPC says that the

Additional Sessions Judges and Assistant Sessions Judges shall be deemed to be subordinates to the District Court. Under this section, the District

Court may, at any stage, withdraw any case from any Court subordinate to it and transfer it to any subordinate Court Therefore, the Additional

Sessions Judges are also must be deemed to be subordinate Courts under the Code of Criminal Procedure, since the provision relating to the

transfer is analogous.

(d) No doubt it is true that the Principal Sessions Judge has invoked Section 409(2) Code of Criminal Procedure by way of recalling the Sessions

case from the Additional Sessions Judge. As stated above, since the Principal Sessions Judge has got powers u/s 408 Code of Criminal Procedure

to transfer the case from the Additional Sessions Judge, the order passed u/s 409(2) Code of Criminal Procedure could be purported to have

been made u/s 408 Code of Criminal Procedure, as there is an existence of jurisdiction for the Principal Sessions Judge for doing the same. Wrong

quoting of section, as held in State of Karnataka Vs. Muniyalla, especially when there is a jurisdiction to transfer u/s 408 Code of Criminal

Procedure, would not make the order of transfer invalid.

(e) Even on merits, the order of transfer is perfectly valid, since the Additional Sessions Judge did not submit his remarks refuting the allegations

made against him in the transfer petition.

(f) As such, the transfer order must be held to be valid both on jurisdiction and on merits.

To substantiate the above submissions, the learned Public Prosecutor for Pondicherry cited various authorities. Now, we shall see one by one.

In Suresh Kumar Vs. State and Others, , the Delhi High Court would observe thus:

Now, four aspects deserve to be noticed. One is that, an Addl. Sessions Judge may be treated as a separate Court for some purposes, vide Reg.

v. Gulabdas Kuberdas (1874 (11) Bom HCR 98). The second is, that the power to transfer a case has not been given to the Court of Session but

to the Sessions Judge who presides over the entire Court of Session manned by Asstt. and/or Addl. Sessions Judges. The third is, that Section

407 (1) (ii) while dealing with the powers of the High Court to transfer a case speaks of transfer ''from a criminal Court subordinate to it.'' But,

Section 408 in case of a Sessions Judge does not use these words. The fourth is, that Sections 408 and 409, Code of Criminal Procedure deal

with two separate types of powers of the Sessions Judge to transfer, and to withdraw or recall cases respectively. The former is to be exercised in

the interests of justice and the latter may inter alia cover a simple administration of business. Distinction between these two powers has to be spelt

out. In Bhabutmal v. the State (1970 R.L.W 242), Beri,J. (later on Chief Justice), instance if the case is sought to be transferred from one Criminal

Court to another Criminal Court in the same sessions division. I am in respectful agreement with these views and I do not think that the addition of

Sub-section (2) to Section 408 on the lines of Section 407(2), Code of Criminal Procedure makes any change in this position. The objection of

Shri. Srivastava is, therefore, upheld.

In Avinash Chander Vs. The State, the very same Judge, who rendered the judgment reported in Suresh Kumar Vs. State and Others, ,

confirmed the said view with the following observation:

Where the Addl. Sessions Judge transferred the case of the accused in which charges were framed, to the Court of another Addl. Sessions Judge

where two more cases were pending against the accused, the transfer would not be open to challenge on the ground that pending case where trial

had begun could not be transferred u/s 409 by an Additional Sessions Judge as the transfer was ordered u/s 408 and not u/s 409. The power to

transfer cases from one Criminal Court to the Court in the same Sessions Division is a special jurisdiction not given to the Court of Session but

given to the Sessions Judge only, the Additional Sessions Judge being equated to the Sessions Judge.

In Radhey Shyam and Anr. v. State of U.P. (1984 (2) Crimes 50), the Allahabad High Court (Full Bench), confirming the view expressed by

the Delhi High Court in Avinash Chander Vs. The State, would observe as follows:

The power conferred on the Sessions Judge u/s 408(1) Code of Criminal Procedure to transfer a case or an appeal pending in the Court of an

Additional Sessions Judge to another Additional Sessions Judge in his sessions division whether its hearing has commenced or not, is thus an

independent judicial power which is not subject to the bar imposed by Section 409(2) Code of Criminal Procedure on the administrative power of

the Sessions Judge of recalling a case or an appeal from an Additional Sessions Judge after the trial of the case or hearing of the appeal has

commenced.

The proviso to Sub-section (2) of Section 407 Code of Criminal Procedure which bars an application to the High Court for the transfer of a part

heard trial or an appeal from one Additional Sessions Judge to another Additional Sessions Judge in the same sessions division unless such an

application has been made to the Sessions Judge and rejected by him, is also not subject to the bar imposed on the power of the Sessions Judge

by Section 409(2) Code of Criminal Procedure to recall case from an Additional Sessions Judge after the trial of the case or the hearing of an

appeal has commenced, which, as said earlier, is purely administrative whereas the power to transfer a part heard trial or an appeal, from one

Additional Sessions Judge in the same sessions division on an application of a party interested, by the Sessions Judge and also by the High Court is

judicial and is to be exercised if it is expedient for the ends of justice.

In State of Karnataka Vs. Muniyalla, , The Supreme Court, while referring about the order passed by the Principal Sessions Judge making

over the Sessions case to Additional Sessions Judge u/s 409 Code of Criminal Procedure instead of u/s 194 Code of Criminal Procedure, would

observe as follows-

It is now well settled that merely because an order is purported to be made under a wrong provision of law, it does not become invalid so long as

there is some other provision of law under which the order could be validly made. Mere recital of a wrong provision of law does not have the

effect of invalidating an order which is otherwise within the power of the authority making it.

In Kingam Savaranna Vs. State and Another, , the Andhra Pradesh High Court, while dealing with the difference between enquiry and trial,

would make the following observation:

The word ''enquiry'' is defined in Section 4(1)(k) as follows:

Inquiry'' includes every inquiry other than a trial conducted under this Code by a Magistrate or Court."" The definition puts it beyond doubt that an

inquiry is something different from a trial, and that ""inquiry"" stops when trial begins.

In The State of Bihar Vs. Ram Naresh Pandey, the Supreme Court would hold as follows:

The word trial is not defined in the Code. According to Stroud''s Judicial Dictionary, trial means ""the conclusion by a competent tribunal of

question in issue of legal proceedings, whether civil or criminal"" and according to Whartons'' Law Lexicon, ""trial"" means ""hearing of a case, civil or

criminal before a Judge, who has jurisdiction over it according to laws of land"". The words ""tried"" and ""trial"" appear to have no fixed or universal

meaning. No doubt in quite a number of sections in the Code to which our attention has been drawn, the words ""tried"" and ""trial"" have been used in

the sense of reference to a stage after an inquiry. That meaning attaches to the words in those sections having regard to context in which they were

used. There are words which must be considered with regard to the particular context in which they are used and with regard to the scheme and

purpose of provisions and considerations.

Mr. Yamunan, learned Counsel appearing for the accused persons, fully adopted the arguments submitted by the learned Public Prosecutor for

Pondicherry, in support of the order of the learned Principal Sessions Judge, Pondicherry.

Mr. V. Padmanabhan, the learned Counsel, who has been appointed as ''Amicus Curiae'' to assist this Court for this case, has, in detail,

submitted in a ''scintillating fashion'' touching upon the various aspects of questions of law raised above. His submissions could be summarized as

follows:

(a) Court of Sessions is classified as a Criminal Court u/s 6 of Code of Criminal Procedure The Additional Sessions Judges and Assistant Sessions

Judges are appointed by the High Court to exercise jurisdiction in a Court of Session u/s 9(3) Code of Criminal Procedure Therefore, the

Additional Sessions Judges and Assistant Sessions Judges are also Criminal Courts as classified u/s 6 of Code of Criminal Procedure However,

u/s 10(1) Code of Criminal Procedure, the Assistant Sessions Judges are subordinates to the Sessions Judge. Though Section 10(3) enables

Sessions Judge to make provision for disposal of any urgent application by Additional or Assistant Sessions Judge, it does not refer that the

Additional Sessions Judge is subordinate to Sessions Judge.

(b) u/s 19 Code of Criminal Procedure, the Chief Metropolitan Magistrate and every Additional Chief Metropolitan Magistrate shall be the

subordinate to the Sessions Judge. In this section also, it is not referred that Additional Sessions Judge is subordinate to Sessions Judge. According

to the Dictionary, ''subordination'' means, inferiority, minority and subordinancy. Neither Section 10, by which Assistant Sessions Judges are

subordinates to Sessions Judge, nor Section 19, by which the Chief Metropolitan Magistrate and Additional Chief Metropolitan magistrate are the

subordinates to Sessions Judge, would refer the Additional Sessions Judge as subordinate. Therefore, the Additional Sessions Judge is not in any

way inferior to the Sessions Judge with reference to the exercise of jurisdiction in a Court of Session.

(c) After taking cognizance u/s 193 Code of Criminal Procedure on committal, the Sessions Judge u/s 194 Code of Criminal Procedure may make

over the Sessions case to the Additional Sessions Judge or Assistant Sessions Judge. u/s 409 of Code of Criminal Procedure, the Sessions Judge

may withdraw any case or appeal, which was made over to the Additional Sessions Judge or Assistant Sessions Judge. However, Section 10(1)

and 409(1) Code of Criminal Procedure would specifically refer that the Assistant Sessions Judges are subordinates to the Sessions Judge who

can recall the case at any stage. As the Additional Sessions Judges are not subordinates, Sub-section (2) of 409 has been provided conferring the

power of recalling the case to Sessions Judge from Additional Sessions Judge only before the commencement of trial of the case. This restriction

should be taken to mean that the Additional Sessions Judge is equal to the Sessions Judge.

(d) At the most, the Sessions Judge can be considered to be the chief among equals and the administrative head only for receiving the case or

appeal and sending the same to the Additional Sessions Judge for the business of distribution of the same.

(e) S.408(2) says that the Sessions Judge may act u/s 408(1) on the report of the lower Court. The word ''lower'' employed in the section would

mean, the Criminal Court as referred in Section 408(1) must be subordinate to the Sessions Judge. Therefore, the Additional Sessions Judge, u/s

409(2) not being a lower Court and not being a subordinate Court, would be equal to the Sessions Judge. That is why there is a restriction put on

the Sessions Judge for recalling the case once trial is commenced. The real object of the section is that the Legislature does not want the Sessions

Judge to interfere with the powers of the Additional Sessions Judge, while exercising the jurisdiction of Court of Sessions. Therefore, the word

criminal Court'' as contained in Section 408 Code of Criminal Procedure means, only subordinate Court or lower Court and not the Court of

Additional Sessions Judge.

(f) Section 406 Code of Criminal Procedure provides for the power of the Supreme Court in the matter of transfer. Section 407 relates to the

power of the High Court in regard to transfer. But, Section 408 envisages the power of transfer only to the Sessions Judge and not to the Sessions

Court. Section 400, while dealing with the power of Additional Sessions Judge, would provide that the Additional Sessions Judge may exercise all

the powers of the Sessions Judge in respect of any case, which was transferred to him by the Sessions Judge. The meaning of the word ''transfer''

in Section 400 should not be equated with the word ''transfer'' as contained in Section 408(1). The said word in Section 400 should be construed

to be ''make over'' as contained in Section 194 Code of Criminal Procedure, because the meaning of the word ''transfer'' as found in the Dictionary

would include make over.

(g) Section 374 Code of Criminal Procedure in Chapter XIX provides for an appeal to the High Court by a person convicted by the Sessions

Judge or Additional Sessions Judge. u/s 381, an appeal to the Court of Sessions could be heard either by the Sessions Judge or by the Additional

Sessions Judge. These provisions would make it clear that both the Sessions Judge and the Additional Sessions Judge are equal.

(h) Though Section 407(2) Code of Criminal Procedure bars any application for transfer in the High Court, if it is not rejected by the Sessions

Judge and Section 408 confers power of all'' the Sub-sections (3) to (9) of Section 407, the analogous provision of Section 407(1)(ii) by which is

referred that the case could be transferred from a Criminal Court subordinate to it, is omitted in Section 408, Section 408(2) would specifically

provide that Sessions Judge may act on the report of the lower Court. Therefore, this means, the bar contained in Section 407(2) will not be

applicable relating to the powers of Sessions Judge u/s 408(2) over the Additional Sessions Judge, who'' is equal, as S 408(1) would imply only to

the lower Court.

(i) The criminal Court as referred in Section 408(1) Code of Criminal Procedure would relate only to the original Criminal Courts in which cases

could be filed and the cognizance could be taken. As far as the Additional Sessions Judges are concerned, they are not the original Criminal

Courts, as they are not entitled to receive any complaint or take cognizance. So, the Court of Additional Sessions Judge cannot be called to be a

Criminal Court as provided in Section 408(1), since they are not subordinate nor have they got original jurisdiction. Therefore, exercise of the

power u/s 408 Code of Criminal Procedure to transfer a case from Additional Sessions Judge, who is not subordinate, is not permissible, as there

is no existence of such power vested with the Sessions Judge.

(j) Section 409(2) Code of Criminal Procedure also is not applicable to the instant case, as trial has commenced.

Mr. V. Padmanabhan, in support of his above submisions, took me through the relevant portions of the following decisions.

In State of Kerala Vs. Reny George and Others, , the Kerala High Court would observe as follows:

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 u/s 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, Allappey. The prohibition in the proviso to

Sub-section (2) of Section 407 will have application only in cases where the Sessions Jude 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 saying that an application for

transfer of a Sessions Case made over to an Additional Sessions Judge can be entertained by the High Court u/s 407 as the same will not be hit by

the proviso to Section 407(2).

In State of West Bengal v. Gangadhar Dawn and Ors. (1988 (3) Crimes 408), a Division Bench of the Calcutta High Court would hold thus:

The Criminal Court referred to in Section 408 covers only those courts where cases can be filed. The criminal cases are usually filed in the Court

of either the Chief Judicial Magistrate of the Sub-Divisional Judicial Magistrate, Section 408 refers to those cases and has nothing to dc with the

cases that might be transferred to the Chief Judicial Magistrate or to the Assistant and Additional Sessions Judges and Section 409, to the cases

which have been transferred to the Additional Sessions Judges or Assistant Sessions Judges or Chief Judicial Magistrate. Section 409 relates to

those transferred cases and Section 408 relates to the cases originally filed in the Criminal Courts. Thai is why, we noted that there is no apparent

incongruity between the provisions of these two sections.

In Nima Tshering Bhutia and Another Vs. State of Sikkim, , a Division Bench of the Sikkim High Court would hold as follows:

An Additional Sessions Judge, therefore, exercises jurisdiction in one and the same Court of Sessions established for a Sessions Division u/s 9(1)

and has no separate or independent entity in the sense that the Court over which he presides while exercising such jurisdiction does not constitute

an independent Court of Session u/s 9 of the Code, but is a part or constituent of the same Court of Session headed by the Sessions Judge.

In State of Kerala v. Kuttikrishnan (1980 M.L.J. (Cri.) 337), a Division Bench of the Kerala High Court would observe thus:

A case made over to an Additional Sessions Judge can be made over to another only after the case is withdrawn from the former Judge as

provided in Section 409 of the Code. Section 409(2) however, restricts the scope of the power of withdrawal and confines it to a stage prior to

the starting of the trial. This means that the Sessions Judge has no power to withdraw a case from an Additional Sessions Judge after the

commencement of the trial by the latter. Again, the power to make over cases conferred on the Sessions Judge u/s 194 of the Code is concurrent

with the power of the High Court under the same section to issue special directions with regard to the cases to be tried by the Additional Sessions

Judge.

In Manoj Majumdar Vs. State of West Bengal, , the Division Bench of the Calcutta High Court would hold as follows:

Mr. Dutt appearing in support of the Rule contends that the trial of a Sessions Case commences with the framing of a charge and the taking of the

plea by the accused as provided in Section 228 of Code of Criminal Procedure In support of this contention Mr. Dutt argued that the charge

having been framed and read out to the accused, the accused may plead guilty to the charge and the Court may, accepting such plea convict the

accused. The conviction, it is contended, cannot be made until the trial commences. In our view also the trial commences with the taking of the

plea. That this is so would be evident from the fact that the person convicted on a plea of guilt is entitled to prefer an appeal at least, against the

sentence. The provision for appeal is contained in Section 374 of the Code. Sub-section (2) of Section 374 provides that any person ""convicted

on a trial"" held by a Sessions Judge or an Additional Sessions Judge or on a trial held by any other Court in which a sentence of imprisonment for

more than seven years has been passed against him may appeal to the High Court. Therefore, it follows that if there is a right of appeal against an

order of conviction based on a plea of guilt, that right accrues because he has been so convicted on a trial held by the Sessions Judge or the

Additional Sessions Judge, as the case may be. It is inconceivable to think that the trial of a sessions case in the case where the accused pleads

guilty commences with the plea whereas in the case where the accused claims to be tried the commencement of the trial is deferred to some other

date. The commencement in either case must be the same. Therefore, in our view, the trial commences as soon as the charge is framed and plea is

taken. In that view of the matter, the order of recalling the case after the framing of the charge and the taking of the plea by the accused in this case

appears to have been made without jurisdiction.

In State Vs. Y.V. Mehra and Others, , the Himachal Pradesh High Court would observe thus:

The proceedings at the pre-charge stage may be tried in the general sense but there is nothing wrong or improper in bifurcating this trial before the

Sessions/Additional Sessions Judge into two parts, namely, pre-charge stage which in the eyes of law could be a sort of an enquiry by the Sessions

Judge and the stage of framing of the charge and taking the plea of guilty or not guilty which in the technical sense, under law, should be deemed as

commencement of trial before the Sessions/Additional Sessions Judge at least for the purpose of Sub-section (2) of Section 409 of the new Code

which specially bars the Sessions Judge from recalling a case pending before the Additional Sessions Judge where the trial of the case has

commenced, since in case such a trial has not commenced the Sessions Judge is empowered to recall such a case from the file of the Additional

Sessions Judge. I am, therefore, in respectful agreement with the ratio in Manoj Majumdar Vs. State of West Bengal, and I am inclined to hold that

in the instant case the trial before the Additional Sessions Judge(I), Dharamsala, had not commenced as no charge had been framed by him till the

case was transferred and in these circumstances even the Sessions Judge was competent to recall the same.

Now, before I deal with the questions of law formulated above, I deem it necessary to recapitulate the entire facts of this case, which, in my

view, have got a chequered history.

One Rethinavelu was alleged to have been murdered by seven accused persons of Keezakasakudy Medu, Kottucherry within the jurisdiction

of Karaikal Police, in June 1993. After completion of investigation. Charge-sheet was filed by the Inspector of Police, Karaikal Town Circle

against the accused persons on 29.5.1995 before the Judicial First Class Magistrate, Karaikal. This was taken on file for the offences under

Sections 148, 302, 324 read with 149 I.P.C. in P.R.C. No. 7/95. On 14.8.1995, the learned Magistrate committed the case u/s 209 Code of

Criminal Procedure to the Principal Sessions Judge, Pondicherry, for trial.

On 21.8.1995, the learned Principal Sessions Judge, Pondicherry, after having taken the Sessions Case on file in S.C. No. 39 of 1995, made

over the same u/s 194 Code of Criminal Procedure to the Additional Sessions Judge, Karaikal, for trial and directed the accused persons to

appear before the said Court. On 29.9.1995 the accused persons appeared before the Additional Sessions Judge, Karaikal. Then, the case was

adjourned for a number of hearings periodically. Ultimately, the case was posted to 19.9.1996 for framing charges u/s 228 Code of Criminal

Procedure

On 19.9.1996 the accused complained to the Court that copies furnished by the learned Magistrate were not legible and requested the

Additional Sessions Judge to make arrangements for the supply of fresh legible copies. Accordingly, the learned Additional Sessions Judge

directed for the preparation of fresh copies and to supply the legible copies to the accused and posted the matter to 10.10.1996.

On 10.10.1996 the legible copies were furnished to all the accused. The case, then was adjourned to 14.10.1996. From 14.10.1996 it was

again adjourned to 25.10.1996 for framing charges. On 25.10.1996 it was once again adjourned to 30.10.1996 to frame charges.

At this stage, on 28.10.1996, on behalf of the accused, a petition was filed in Cr.M.P. No. 65 of 1996 before the Additional Sessions Judge

questioning his jurisdiction to frame charges and requesting for resubmitting the papers to the learned Principal Sessions Judge, Pondicherry who

alone would be competent to frame charges and then to make over. In this petition after issuing notice to the learned Public Prosecutor, both sides

were heard. After considering the submissions on either side, the Additional Sessions Judge dismissed the petition on 31.10.1996 overruling the

said objection and holding that he is competent to frame charges. After pronouncement of this order, the case was posted to 8.11.1996 for

framing charges.

On 8.11.1996 the accused appeared before the learned Additional Sessions Judge. The charges were framed 18 against the accused persons

and read over to diem for the offences under Sections 302 and 324 read with 109 Indian Penal Code. against A1 to A7. All the accused pleaded

not guilty. The learned Additional Sessions Judge recorded the plea of not guilty and obtained their signatures.

Thereafter, the case was adjourned for explanation of the witnesses, P.W. 1 to P.W.9 on 17.12.1996, P.W.10 to P.W.22 on 18.12.1996 and

P.W.23 to P.W.28 on 19.12.1996. The accused also were bound over to appear on the said dates by the Additional Sessions Judge.

At this stage, on 30.11.1996 the accused persons filed a petition in Cr.M.P. No. 593 of 1996 before the Principal Sessions Judge,

Pondicherry u/s 408 read with 409(2) and (3) Code of Criminal Procedure, requesting transfer and withdrawal of the case from the Additional

Sessions Judge, Karaikal, for trial by any other competent Court or recall the case and try the same by the Principal Sessions Judge himself, by

making allegations against the said Judge.

The relevant portion containing allegations against the said Judge in the petition for transfer is given below:

The Petitioners are advised to state that the learned Additional Sessions Judge, Karaikal is guided in his judgment more by dharma and adharma

and not by law as given in the Penal Code, Evidence Act and Code of Criminal Procedure. The Petitioners are further advised to state that the

learned Additional Sessions Judge does not follow the supreme principal of Criminal Justice requiring the prosecution to prove the case beyond all

reasonable doubts. On the contrary he frames issues as in the civil cases shifting the burden of proof on the accused and decides the cases on

probabilities.

Along with the above petition, another petition was filed in Cr.M.P. No. 594 of 1996 requesting stay of the proceedings u/s 408(3) read with

407(6) Code of Criminal Procedure, pending disposal of the transfer petition.

When this matter came up on 3.12.1996 before the Principal Sessions Judge for admission, the Public Prosecutor who was present then took

notice. On the same day, interim stay was ordered u/s 408(3) read with Section 407(6) Code of Criminal Procedure and the matter was

adjourned to 13.12.1996 for counter to be filed by the Public Prosecutor.

The said order is as follows:

ORDER

Petition u/s 408(3) R/W Section 407(6) of Code of Criminal Procedure to stay of all further proceedings in Sessions Case No. 39/95 pending on

the file of Additional Sessions Judge, Pondicherry at Karaikal till the disposal of the transfer petition

Notice taken by Public Prosecutor at Pondicherry. Heard Counsel, Thiru A. Ahamed Ansari. Interim stay and Counter 13-12-96.

Written and pronounced by me in the Open Court on this the 3rd day of December, 1996.

Sd/-

(A. John Ambrose)

Principal Sessions Judge

Pondicherry.

On 13.12.1996 the Public Prosecutor requested further time to file the counter. So, it was adjourned to 20.''2.1996. The stay also was

extended.

In the meantime, on receipt of the stay order, the Additional Sessions Judge, Karaikal, sent a letter to the High Court expressing inability to go

on with the Sessions murder trial, which was posted on 17.12.1996, in view of the interim stay granted by the Principal Sessions Judge and

requesting further instructions, as the stay order passed by the Principal Sessions Judge u/s 408(3) r/w Section 407(6) Code of Criminal

Procedure would not be applicable to the Court of Additional Sessions Judge, which is constituted to exercise the jurisdiction of the Sessions

Court.

The above letter dated 20.12.1996 was received by the Registry of High Court on 24.12.1996. The contents of the letter are as follows:

To

The Registrar,

High Court of Judicature,

Madras.

Sir,

I submit to state that the Sessions Case No. 39/1995 on the file of this Court was posted to 17.12 1996 for examination of witnesses after framing

charges In the meantime I have received a copy of Stay order passed in Cr.M.P. No. 594/1996 in Transfer Criminal Miscellaneous Petition No.

593/1996 by the Principal District & Sessions Judge, Pondicherry on 3rd December, 1996 granting interim stay of all further proceedings in the

above Sessions Case No. 39/1995. In view of the above order, no progress could be shown in Sessions Case No. 39/1995. The Stay Order was

passed u/s 408(3) read with Section 407(6) of Code of Criminal Procedure It is applicable only to Criminal Courts and not to Sessions Courts.

I am enclosing a copy of the Stay order herewith for favour of perusal and instruction.

In the meantime, on 20.12.1996, the learned Public Prosecutor filed a counter opposing the transfer petition before the Principal Sessions

Judge, Pondicherry on various grounds including on the question of maintainability. It is also mentioned in the counter that the allegations against the

Additional Sessions Judge being scandalous arid vexatious imputations are untenable and unsustainable in the eye of law and on facts, it is also

specifically mentioned that the entire averments in para 4 of the affidavit (allegations against the Judge) are imaginary, hostile, contumacious,

unhealthy, representative in character, unsustainable on facts and untenable in law.

However, the learned Principal Sessions Judge called for the remarks from the Additional Sessions Judge? Karaikal, in regard to the

allegations made against him in the transfer petition.

On 2.1.1997 the Additional Sessions Judge sent a letter to the Principal Sessions Judge, Pondicherry, intimating that he has addressed a letter

to the High Court. The following is the said letter:

Sir,

Sub: Petition filed by one Devarasu and others in Cr.M.P. No. 593/96- Remarks called for.

Ref: Proceedings No. 3344/JUD/PDSJ/J.3/96 dated 20.12.1996 of the Chief Judge, Pondicherry.

It appears that remarks have been called for in respect of the petition filed by one Devarasu and Ors. in Cr.M.P. No. 593/96 despite the

objections raised by the Public Prosecutor, Pondicherry about the maintainability of the petition and the stay granted therein.

I am to state that I have addressed the High Court, Chennai about the said matter.

Yours faithfully,

Sd/- xxxxxx

(J.A.K. Sampath Kumar)

Additional District and Sessions Judge, Pondicherry at Karaikal.

The above letter was received on 6.1.1997 by the Principal Sessions Judge, Pondicherry. On receipt of the letter, the learned Principal

Sessions Judge heard the arguments of both parties on 13.1.1997.

In the meantime, on 7.1.1997 the Registrar put up a note along with letter dated 2.1.1997 addressed by the Additional Sessions Judge, before

the Portfolio Judge to take further course of action.

On 16.1.1997, the Portfolio Judge directed for posting the matter before the regular Court to decide the question after hearing the parties, in

order to pass a judicial order on this, after obtaining the orders from the Hon''ble The Chief Justice.

On the basis of the above, on 24.1.1997 My Lord the Chief Justice directed the Registry to post the matter before me as Suo Motu Criminal

Revision.

In the meantime, the Principal Sessions Judge, Pondicherry disposed of the above petition for transfer by the order dated 20.1.1997 recalling

the case from the Additional Sessions Judge to have a trial by himself, mainly because he did not receive the remarks from the Additional Sessions

Judge, despite his direction. The relevant portions of his order are as follows:

S.9(l) Code of Criminal Procedure provides that the State Government shall establish a Court of Session for every Sessions Division. Accordingly,

the Union Territory of Pondicherry is declared as one sessions division and the Principal Sessions Judge, Pondicherry is vested with the powers u/s

9(2), Code of Criminal Procedure by the High Court of Judicature, Madras. The Additional Sessions Judge at Pondicherry including the

Additional Sessions Judge, Pondicherry at Karaikal are appointed and powers are conferred on them u/s 9(3), Code of Criminal Procedure The

result is that the Principal Sessions Judge, Pondicherry is the Sessions Judge for the Sessions Court for the Union Territory of Pondicherry. Section

408, Code of Criminal Procedure deals with the powers of the Sessions Judge to transfer cases and appeals. More particularly is Section 409,

Code of Criminal Procedure which provides for withdrawal of cases and appeals by Sessions Judges. Section 409(2), Code of Criminal

Procedure provides that at any time before the trial of the case or the hearing of the appeal has commenced before the Additional Sessions Judge,

Sessions Judge may recall any case or appeal which he had made over to any Additional Sessions Judge. Sessions Case No. 39/95 was made

over to the Additional Sessions Judge, Pondicherry at Karaikal and it is, then that a petition was filed before the said Additional Sessions Judge in

Cr.M.P. No. 65/96. Learned Additional Sessions Judge, Pondicherry at Karaikal dismissed the petition. Learned Counsel Thiru S. Ameerudeen,

submits that the Petitioners bonqfide believed that the Principal Sessions Judge alone had the right to frame the charges. The Additional Sessions

Judge, Pondicherry at Karaikal negatived such a plea. Petitioners now apprehend that because such a petition had been filed by them before the

Additional Sessions Judge, Pondicherry at Karaikal, he got prejudiced against them. By proceedings dated 20-12- 96, the remarks of the

Additional Sessions Judge, Pondicherry at Karaikal were called for and the Additional Sessions Judge replied that he was addressing the High

Court, Chennai about the said matter. He did not give any remark by his letter dated 2-1-1997. Under such circumstances, it appears to me that,

when the Petitioners have filed a sworn affidavit that they apprehend that justice would not be rendered to them, it is not proper that Sessions Case

No. 39/95 be allowed to be on the file of the Additional Sessions Judge, Pondicherry at Karaikal. The trial had not commenced before the

Additional Sessions Judge, Pondicherry at Karaikal So, u/s 409(2) r/w 409(3), Code of Criminal Procedure, this Court has the power to

withdraw or recall tire Sessions Case. This point is answered in favour of the Petitioners.

In the result, the petition is allowed. Sessions Case No. 39/95 on the file of Additional Sessions Judge, Pondicherry at Karaikal is withdrawn and

recalled to the file of this Court for disposal according to law. The parties shall appear before this Court on 14-2-1997 at 10 a.m. The records

shall be sent so as to reach this Court well in advance.

Let me now, endeavour to answer the questions formulated above, in the light of the facts, submissions by the respective counsel and the

citations referred to above.

The main argument advanced by the learned Public Prosecutor, Pondicherry is that though the order of transfer was made by the learned

Principal Sessions Judge, Pondicherry u/s 409(2) and (3) of Code of Criminal Procedure and that assuming for the sake of argument that the

framing of the charge would amount to commencement of trial and as such Section 409(2) would not confer any jurisdiction to transfer or recall,

the said order must be purported to have been passed u/s 408 of Code of Criminal Procedure, in view of the fact that the Sessions Judge has got

jurisdiction to transfer from one Criminal Court to another criminal Court in the same Sessions Division at any stage.

57(a). I shall therefore deal with the first question, as to whether Sessions Judge has got powers for transfer over the cases pending before Addl.

Sessions Judge u/s 408.

S.408 Code of Criminal Procedure provides thus:

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.

(2) The Sessions Judge may act either on the report of the lower Court, or on the application of a party interested, or on his own initiative.

(3) The provisions of Sub-sections (3), (4), (5), (6), (7) and (9) of Section 407 shall apply in relation to an application to the Sessions Judge for an

order under Sub-section (1) as they apply in relation to an application to the High Court for an order under Sub-section (1) of Section 407, except

that Sub-section (7) of that section shall so apply as if for the words ""one thousand rupees"" occurring therein, the words ""two hundred and fifty

rupees"" were substituted.

The reading of the above section would disclose that the Sessions Judge has got powers to transfer any particular case from one Criminal Court to

another Criminal Court in his sessions division.

The Criminal Courts are classified u/s 6 Code of Criminal Procedure As per this section, Court of Session is a Criminal Court. These Courts

of Session are established by the State Government u/s 9(1) Code of Criminal Procedure The High Court u/s 9(2) and (3) appoints Sessions

Judge, Additional Sessions Judges and Assistant Sessions Judges to exercise jurisdiction in a Court of Session. Therefore, the Court of the

Additional Sessions Judge also has to be considered as a Criminal Court in the Sessions Division.

S.10(3) Code of Criminal Procedure would enable the Sessions Judge presiding over the Court of Session to make provision for disposal of

applications by an Additional or Assistant Sessions Judge. Section 194 Code of Criminal Procedure provides that the Sessions Judge of the

Division may make over the Sessions Case to the Additional and Assistant Sessions Judges to try the same. u/s 381(2) Code of Criminal

Procedure, the Sessions Judge can make over the appeals for hearing to the Additional Sessions Judge, Assistant Sessions Judge or Chief Judicial

Magistrate. The combined reading of these provisions would go to show that the Sessions Judge has got some administrative control over these

Courts, namely, the Court of Additional or Assistant or Chief Judicial Magistrate. As such, the Additional or Assistant Sessions Judges do not

have the original jurisdiction for receiving the complaint or entertaining the appeal for the purpose of trial or hearing, as the Sessions Judge alone

does have the power to do so. Therefore, there is no difficulty in coming to the conclusion, on perusal of these provisions, that both Additional and

Assistant Sessions Judges are the Criminal Courts in the same Sessions Division, but without any original jurisdiction.

In this context, it has to be seen whether the Criminal Courts without original jurisdiction could be equated with the Criminal Court as referred

in Section 408(1) Code of Criminal Procedure

In order to construe the meaning of the Criminal Court as referred to in Section 408(1), we have to carefully go through the whole section and

the other provisions under the Code of Criminal Procedure.

S.408(2) provides for the Sessions Judge to invoke the power u/s 408(1) to transfer in three ways:

(i) on the report of the lower Court; or

(ii) on the application of a party interested; or

(iii) on his own initiative.

This means, even without an application of the party interested or on any suo motu action on the part of the Sessions Judge, the lower Court may

send a report requesting the Sessions Judge to transfer from the said Court to another Criminal Court in the same sessions division, or in the

alternative, on the application of the party internative, on the application of the party interested, the Sessions Judge may call for the report from the

lower Court in which the case is sought to be transferred is pending, could transfer when the Sessions Judge forms an opinion that it is expedient

for the ends of justice.

Similarly, the Sessions Judge H would as well take suo motu initiative and call for report from the lower Court and on that basis, the transfer

could be effected. In other words, since the term ''or'' is used, even without the report of the lower Court and even without an application of the

party interested, the Sessions Judge could transfer the case from one Criminal Court to another Criminal Court. However, since the word ''lower

Court'' is used in Sub-section (2) of Section 408, it must mean that the Criminal Court as referred in Section 408(1) must be necessarily a lower

Court.

The next question that arises is whether the Additional Sessions Court over which the Sessions Judge has got some administrative control as

referred to above, is a lower Court or subordinate Court under the Court of Session.

In this connection, it is useful to refer to some of the provisions, which provide for subordination of some posts under Sessions Judges.

u/s 10(1), Code of Criminal Procedure all the Assistant Sessions Judges shall be subordinates to the Sessions Judge. u/s 15, every Chief

Judicial Magistrate shall be subordinate to the Sessions Judge. u/s 19, the Chief Metropolitan Magistrate and every Additional Chief Metropolitan

Magistrate shall be subordinate to the Sessions Judge. Section 409(1) provides that the Sessions Judge may withdraw or recall any case or

appeal, which was made over to any Assistant Sessions Judge or Chief Judicial Magistrate subordinate to him. But, none of these sections would

provide subordination of Additional Sessions Judge to the Sessions Judge, whereas various provisions under the Code would show that both

Sessions Judge and Additional Sessions Judge are equal in the exercise of jurisdiction in the Court of Session.

Though u/s 10(3) Code of Criminal Procedure, the Sessions Judge could make provisions for disposal of the urgent applications by the

Additional or Assistant Sessions Judges or by the Chief Judicial Magistrates, under Ss.10(1), 15(1) and 19(1), the Assistant Sessions Judges,

Chief Metropolitan Magistrates and Chief Judicial Magistrates alone are the subordinates to the Sessions Judge.

Furthermore, the reading of subsections (2) and (3) of Section 409 would also go to disclose that the Additional Sessions Judge is not

subordinate to Sessions Judge, whereas Assistant Sessions Judge and Chief Judicial Magistrate alone are made as subordinates to Sessions Judge.

u/s 409(1), the Sessions Judge may withdraw any case or appeal from the Assistant Sessions Judge or Chief Judicial Magistrate subordinate to

him, at any stage. But, u/s 409(2), the Sessions Judge can withdraw or recall only before the commencement of trial. The reason being that once

the Additional Sessions Judge commences the trial, there should not be any impediment to the progress of the trial and as such, the Legislature did

not incline for the Sessions Judge to interfere in the proceeding before the Additional Sessions Judge after the trial is commenced. So, for all

purposes, in the light of these provisions, it can be concluded that the Court of Additional Sessions Judge, though it is a criminal Court in the same

sessions division, cannot be considered to be a subordinate Court or lower Court.

There is yet another aspect of the matter. u/s 408(1), the Sessions Judge could transfer a particular case from one Criminal Court to another

Criminal Court. It does not provide for transferring the case from that Court and for posting and trying the case in his own Court. At the most he

can take out a case from the file of one Criminal Court and send it to another Criminal Court for the purpose of trial. Therefore, the words ""any

particular case"" as contained in Section 408 Code of Criminal Procedure would not at all mean the Sessions case, which was made over by the

Sessions Judge to the Additional Sessions Judge u/s 194 Code of Criminal Procedure In other words, ""particular case"" referred in Section 408

would mean the cases other than the Sessions cases which are triable by the Sessions Judge. That is the reason, the provision is not made in

Section 408(1) like that of Section 409(3) for posting the case before himself for the trial.

The conjoint reading of Section 408(1) and 409(3) Code of Criminal Procedure would draw such conclusion as referred above. Section

408(1) provides thus:

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.

S.409(3) reads thus:

Where a Sessions Judge withdraws or recalls a case or appeal under Sub-section (1) or Sub-section (2). he may either try the case in his own

Court or hear the appeal himself or make it over in accordance with the provisions of this Code to another Court for trial or hearing as the case

may be.

Section 409(1) provides for the withdrawal of cases made over by Sessions Judge from any Assistant Sessions Judge or Chief Judicial

Magistrate subordinate to him. Section 409(2) provides for the withdrawal of cases made over by Sessions Judge from any Additional Sessions

Judge. Section 409(3), as quoted above, is enabling provision to make it possible for the Sessions Judge to withdraw the cases from the

Additional or the Assistant Sessions Judges, as the case may be, for trying the same in his own Court. This aspect is conspicuously absent in

Section 408(1). Therefore, it can be safely concluded that the wordings ""any particular case"" contained in Section 408(1) would not refer to the

cases already made over by the Sessions Judge to the Additional or Assistant Sessions Judge u/s 409(1) or 409(2).

Similarly, it could also be held that words ""transfer from one Criminal Court to another Criminal Court in his sessions division"" contained in

Section 408(1) would not refer to the Additional Sessions Judges and Assistant Sessions Judges or Chief Judicial Magistrates to whom the cases

were made over by the Sessions Judge u/s 194, Code of Criminal Procedure Therefore, the word ''Criminal Court'' would necessarily mean the

Court which has got original jurisdiction and which can receive the complaints and take them on file.

The Code of Criminal Procedure does not provide the powers for the Additional Sessions Judge or the Assistant Sessions Judge to receive the

complaints and take cognizance. Therefore, in the absence of the power conferred on Sessions Judge for transferring any particular case from a

Criminal Court and posting it before himself for trial, it should be taken that Section 408(1) would not be applicable for the cases made over by the

Sessions Judge u/s 194 Code of Criminal Procedure

The bar u/s 407(2) Code of Criminal Procedure is brought to the notice of this Court during the course of argument by the learned Public

Prosecutor. No doubt it is true that u/s 407(2) proviso, the High Court cannot be directly moved for transfer from one Criminal Court to another

Criminal Court, unless an application for such transfer has been rejected by the Sessions Judge, Section 407(2) provides as follows:

S.407(2) ...

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,

It is a normal rule that for the transfer of the 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. If the Additional Sessions Court and

Sessions Court are held to be the Courts of equal jurisdiction as indicated earlier, Section 408 cannot 24 be invoked for the transfer of a Sessions

case from an Additional Sessions Judge to a Sessions Judge. Therefore, the prohibition in the proviso to Sub-section (2) of Section 407, in my

view will have application only in cases where the Sessions Judge has power to transfer. In other words, in a case where the Sessions Judge has

no power to transfer, the question of moving the Sessions Judge for a transfer does not arise. Such being the situation, for transfer of a Sessions

Case made over to an Additional Sessions Judge, the party concerned shall only approach High Court u/s 407, as the same will not be hit by the

proviso to Section 407(2).

S. 193 Code of Criminal Procedure confers original jurisdiction for the Court of Session to take cognizance of an offence. of course, we have

seen earlier that the Court of Additional Sessions Judge is also a Court of Session exercising the same jurisdiction in the Sessions Division. But,

Section 194 would clarify that the Sessions Judge, who is appointed by the High Court u/s 9(2) of Code of Criminal Procedure alone can make

over the cases to the Additional Sessions judge or to the Assistant Sessions Judge for trial. Therefore, though the Court of the Additional Sessions

Judge is a Court of Session u/s 9(3) Code of Criminal Procedure, the Additional Sessions Judge cannot be considered to be the Sessions Judge,

for a limited purpose, since u/s 194 Code of Criminal Procedure, Sessions Judge alone can take cognizance as a Court of original jurisdiction on

receipt of a case committed by the Magistrate and then make over the case to the Additional, this means that the Additional Sessions Judge is not

enjoying the original jurisdiction as in the case of a Sessions Judge, though the Court of Additional Sessions Judge and the Court of Sessions Judge

are of equal jurisdiction in the matter of disposal of the cases.

The Full Bench of the Andhra Pradesh High Court in In Re P. Nanjappa (A.I.R. 1961 Andhra Pradesh 471), after a careful consideration of

the relevant provisions of the Code of Criminal Procedure, formulated four propositions as follows:

(1) There can be only one Court of Session in a Sessions division and there can be only one judge of the Court, or, in other words, there can be

only one Sessions Judge in a Sessions division. But, there can be more than one Additional Sessions Judge to exercise jurisdiction in one Court of

Session.

(2) A Court presided over by an Additional or Assistant Sessions Judge is also a Court of Session and is a part or constituent of the same Court of

Session which is headed by the Sessions Judge.

(3) A Sessions Judge has complete jurisdiction by virtue of his position as Judge of the Court of Session to receive, hear and dispose of all matters

such as applications, appeals or cases which are required by law to be submitted to, or filed, in the Court of Session. An Additional or Assistant

Sessions Judge however, is not competent by virtue of his office to receive, hear or dispose of any matter submitted to, or filed in, the Court of

Session in which he exercises jurisdiction. He gets jurisdiction to deal with such a matter only when it is placed before him either under a general or

special order of the State Government or a general or special order of the Sessions Judge of the division.

(4)An Additional or Assistant Sessions Judge exercises full powers of a Court of Session subject only to such limitations or restrictions as are

expressly placed upon his powers by law in respect of cases which are legally placed before him for disposal. An Additional Sessions Judge has, in

cases within his seisin, the same powers as a Sessions Judge.

In view of the propositions formulated by the Full Bench of the Andhra Pradesh High Court, with which I fully agree, though the Court of

Additional Sessions Judge cannot be considered to be the Court of original jurisdiction, in the matter of taking the case on file committed to it by

the Magistrate, in all other respects, an Additional Sessions Judge and a Sessions Judge are exercising the same jurisdiction in the Court of

Session. The only difference, as indicated above, is that the Sessions Judge can receive the case on committal and try or make over the same for

trial to the Additional Sessions Judge, whereas the Additional Sessions Judge can try the case only on the same being made over to him for trial by

the Sessions Judge. Therefore, it is clear that both Sessions Judge and Additional Sessions Judge exercising the same jurisdiction are equal, as

neither the Court of Additional Sessions Judge is a lower Court nor the Additional Sessions Judge as subordinate to the Sessions Judge.

According to Sections 6 and 9 of the Code, the Court of Session is a Criminal Court and there can be only one such Court in a Sessions

division. The High Court appoints Additional Sessions Judges and Assistant Sessions Judge to exercise jurisdiction in a Court of Session. Thus, the

Court of the Additional Sessions Judge is not a separate Court, but a part of the Court of Session or the Court of Session itself. As such, the

Sessions Judge cannot transfer a case from his own Court to his own Court.

As indicated earlier, the transfer can be directed from a lower Court only, in view of the wordings contained in Sub-section (2) of Section 408,

which provides that Sessions Judge may transfer a case of the report of the lower Court, the Sessions Judge cannot transfer a case from the Court

of Additional Sessions Judge, which is not a lower Court.

Even the Full Bench decision reported 1984(2) Crimes 50 (supra) cited by the learned Public Prosecutor, who would submit that the

Additional Sessions Judge can be considered to be the subordinate Court for the purpose u/s 408, would not support his submission. On the

contrary, the Full Bench observed that the Additional Sessions Judge is not a lower Court as quoted below:

The power conferred on the Sessions Judge u/s 408(1), Code of Criminal Procedure to transfer a case from one Criminal Court to another

Criminal Court in his sessions division can be exercised by him either on the report of the lower Court or on the application of the party interested

or on his own initiative u/s 408(2), Code of Criminal Procedure. It is true that an Additional Sessions Judge is not a lower Court as he exercises

jurisdiction in the same Court of Session in which the Sessions judge exercises jurisdiction. Thus a report by an Additional Sessions judge for the

transfer of a case to another Additional Sessions Judge in the same sessions division is not maintainable by the Sessions Judge.

S.408 provides power for the Sessions Judge for the transfer of a case only on the ground that when it is expedient for the ends of justice. As

correctly pointed out, though Section 409 Code of Criminal Procedure empowers the Sessions Judge to recall the cases from the Additional

Sessions Judge and Assistant Sessions Judge, the ground on which such a withdrawal could be made is not mentioned there.

In this situation, it is argued that the jurisdiction conferred u/s 409 is only administrative and it could be invoked on administrative reasons, but if

the Sessions Judge is of opinion that there is a ground for transfer, since it is expedient for die ends of justice, then the Sessions Judge could very

well invoke Section 408 in respect of the cases covered in Section 409 Code of Criminal Procedure I am not impressed with this submission, as it

has no substance.

S.412 provides that the Sessions Judge, while making an order of transfer or withdrawal under Sections 408 and 409, shall record his reasons

for making it. This would show that the exercise of the power u/s 409 is not merely an administrative function, but the orders passed u/s 409 must

be considered to be judicial, as the Sessions Judge has to give reasoning for invoking the said section, which could be reviewed by the Superior

Court, namely, High Court. The ground of expediency for the ends of justice also could be one among the grounds for consideration of withdrawal

of a case by the Sessions Judge while invoking Section 409(1) Code of Criminal Procedure

Merely because the ground of transfer as mentioned in Section 408(1) is not referred in Section 409, it would not mean that the Sessions

Judge cannot take into consideration of the said ground, in view of Section 412 Code of Criminal Procedure Therefore, it cannot be contended

that the Sessions Judge has got power to transfer u/s 408 Code of Criminal Procedure even the cases referred in Section 409 Code of Criminal

Procedure, if it is expedient in the interest of justice and that Section 408 covers all cases, whereas Section 409 covers only the cases for transfer

on administrative grounds.

In my opinion, both the sections are different dealing with the different situation and different Courts. If the expansive interpretation, as

mentioned above, to the effect that Section 408 being a general provision would cover all the cases for transferring the case on the ground of

expediency for the ends of justice, is given, it would only attribute redundancy to Sections 409 and 412 Code of Criminal Procedure

u/s 409(1), the Sessions Judge could withdraw the case from the Assistant Sessions Judge irrespective of the stage. But u/s 409(2), the

Sessions Judge is prohibited from the withdrawal of the case from the Additional Sessions Judge after the trial is commenced.

S.412 Code of Criminal Procedure mandates for recording of reasons, while Sessions Judge passing an order of transfer u/s 408 or for the

withdrawal of the case u/s 409. Therefore, it is clear that the cases to be covered with u/s 408 Code of Criminal Procedure are entirely different

from the cases to be dealt with u/s 409 Code of Criminal Procedure

Moreover, Section 409 Code of Criminal Procedure deals with case or appeal, whereas Section 408 deals with only case. Therefore, both the

sections are independent dealing with the different cases and different Courts.

With reference to the power of transfer conferred to various Courts, the difference in the particular word in the relevant sections has been

brought to the notice of this Court.

u/s 406 Code of Criminal Procedure, the power to transfer cases and appeals has been conferred to the ''''Supreme Court"". Section 407

Code of Criminal Procedure provides power for transfer of cases and appeals to the ""High Court"". But, u/s 408, the power of transfer has been

given to the Sessions Judge and not to the Sessions Court. This cannot be without any significance.

As discussed earlier, both the Sessions Judge and the Additional Sessions Judge have been appointed by the High Court to exercise equal

jurisdiction in a Court of Sessions. Therefore, the Court of the Sessions Judge and the Court of the Additional Sessions Judge are not different

Courts. There are one and the same. In the light of this, we have already found in the earlier paragraphs, the case cannot be transferred from his

own Court to his own Court. But, the term ''Sessions Judge'' instead of ''Court of Session'' like that of Sections 406 and 407 would give some

indication that the Sessions Judge and the Additional Sessions Judge are not equal in some respects.

The combined reading of Sections 193 and 194 Code of Criminal Procedure would disclose that the Sessions Judge, who is appointed by the

High Court to preside over the Court of Session, alone is competent to take cognizance of any offence as a Court of original jurisdiction on the

case being committed to him. In other words, the Magistrate under this Code could commit the case triable by the Sessions Judge only to the

Sessions Judge and not to the Additional Sessions Judge.

S.194 Code of Criminal Procedure empowers only Sessions Judge to make over the cases to the Additional Sessions Judge for trial.

Therefore, though the Court of Additional Sessions Judge is exercising equal jurisdiction as that of the Court of Sessions Judge, the Additional

Sessions Judge is not competent to receive the case on committal directly from the Magistrate.

S.381(2) Code of Criminal Procedure also would provide that the Additional Sessions Judge shall hear only such appeals as the Sessions

Judge 27 of the division may make over to him. This also would make it clear that the appeal could be filed only before the Sessions Judge and not

before the Additional Sessions Judge, though he has got jurisdiction to dispose of the appeal, when it is placed before him as per the order of

Sessions Judge.

S.400 Code of Criminal Procedure also would refer the same thing with regard to the powers of the Additional Sessions Judge while dealing

with the revision exercising the revisional jurisdiction. Therefore, these sections, namely, Sections 194, 381(2) and 400 would give additional

powers to the Sessions Judge in the matter of distribution of the cases filed before him to the Additional Sessions Judges.

Had the word been used as Sessions Court or Court of Session in Section 408 Code of Criminal Procedure, then it would have been possible

for the Additional Sessions Judge also to invoke the powers to entertain the cases and appeals exercising original jurisdiction and he also would

have been competent to take the cases on file.

In order to make the Sessions Judge as administrative head for the purpose of distribution of the business of making over cases to various

additional Sessions Judges, the word ''Sessions Judge'' has been correctly employed in Section 408 Code of Criminal Procedure Merely because

the word ''Sessions Judge'' is used, the Additional Sessions Judges cannot be considered to be inferior nor subordinates to the Sessions Judge,

since both of them are exercising the same and equal jurisdiction in the Court of Session. At the most, the Sessions Judge could be called to be first

among equals or chief among equals. But, there Section 194, 381 and 400 would never indicate that the Additional Sessions Judges are

subordinates to the Sessions Judge.

In Abdul Mannan v. State of W.B. (1996 S.C.C. (Crl) 197), the Apex Court, while dealing with the question whether the Additional

Sessions Judge is competent to proceed with the trial of the juvenile offenders as Sessions Judge, has made following observations:

S.9(1) of the Code of Criminal Procedure, 1973 (Act II of 1974) (for short ""the Code"") enjoins the State Government to establish a Court of

Session for every sessions division. It is made clear by Sub-section (3) of Section 9 which provides that Additional Sessions Judges may be

appointed by the High Court to exercise jurisdiction in a Court of Session. Singular includes plural Sessions Judge would include Additional

Sessions Judge under the Code. Therefore, he gets all the power and the jurisdiction of the Sessions Judge to try the offences enumerated under

the Code.

The learned Public Prosecutor for Pondicherry, while submitting that the Additional Sessions Judges are subordinates to the Principal

Sessions Judge, pointed out Section 24 of the Code of Civil Procedure, in which it is referred that the District Court at any stage withdraw any

case from any Court subordinate to it and transfer the same to any subordinate Court and for the purpose of the section, the Additional Sessions

Judges shall be deemed to be the subordinate Judges to the District Court. Therefore, it is submitted that the Additional Judges who are

subordinates to the Sessions Judges as per CPC shall also be deemed to be subordinate Judges to the Principal Sessions Judge under Code of

Criminal Procedure, since the provisions relating to this are analogous. This again has no basis, as i. can be stated that the provision in Code of

Criminal Procedure relating to exercise of jurisdiction by the Sessions Judges and Assistant Sessions Judges as explained above are totally different

from Section 24 of Code of Civil Procedure

The caption of Section 10 Code of Criminal Procedure is subordination of Assistant Sessions Judges. u/s 10(1), all the Assistant Sessions

Judges shall be subordinates to the Sessions Judges. There is no reference about the subordination in respect of the Additional Sessions Judges,

even though both Additional Sessions Judges and Assistant Sessions Judges are appointed by the High Court to exercise jurisdiction in a Court of

Session, 28 u/s 9(3) Code of Criminal Procedure

S.15 also states that every Chief Judicial Magistrate shall be subordinate to Sessions Judge. Here also, there is no reference about the

Additional Sessions Judge. Section 19 says that Chief Metropolitan Magistrate and every Additional Chief Metropolitan Magistrate shall be

subordinate to Sessions Judge. Reference about the Additional Sessions Judge in this section also is absent.

On the contrary, the other provisions in relation to the exercise of jurisdiction for trial in the matter of disposal of appeal and revision would

go to show, as we have discussed earlier, that both the Additional Sessions Judge and the Sessions Judge are equal and they are exercising the

power of equal jurisdiction. Such being the case, it cannot be contended that Section 24 C.P.C, by which the Additional Sessions Judge is

subordinate to the Sessions Judge, cannot be said to be analogous to the relevant provisions of Code of Criminal Procedure

Lexicographically, the meaning of the word ''subordination'' is given in various Dictionaries as follows:

According to Dictionary ""Rogets Therasus"" in phrase 34, the meaning of the subordinate is inferior, smaller, minor, less, lesser, lower.

The ''Oxford Advanced Learner''s Dictionary'' defines the word ''subordinate'' at page 12822 as Lower in rank or position.

''Webster''s New Dictionary'' defines the word ''subordinate'' at page 546 as follows:

lower in order, rank, nature, power, etc.; of less authority, weight, or importance, inferiority of rank, one in a lower order or rank.

In the ''Concise Oxford Dictionary'' at page 647 the meaning of the word ''lower'' is found as follows:

less high in place, situated below another part, less high in rank, dignity, etc.

Therefore, it is clear that the words ''lower'' and ''subordinate'' are more or less same, which convey the same meaning.

It is pointed out that the word ''transfer'' employed in Section 408 Code of Criminal Procedure is also found in Section 400 which deals with

the powers of Additional Sessions Judge in exercise of revisional jurisdiction. It is true that Section 194 specifically provides for only the making

over the cases by the Sessions judge to the Additional Sessions Judge the world ''transfer'' is absent.

Even u/s 381, the Sessions Judge could make over the appeals to the Additional Sessions Judge for hearing. Here also, the word ''transfer'' is

absent. However, Section 400 provides that the Additional Sessions Judge can exercise the power of the Sessions judge in respect of any case,

which was transferred by the Sessions Judge. Since the word ''transfer'' is used in this section, it is argued that the Sessions Judge has got powers

for transfer with reference to the Additional Sessions Judge also.

Though the above submission looks attractive at the first blush, the deep probe on the relevant sections would make it crystal clear that the

above submission cannot be countenanced.

S.400 Code of Criminal Procedure enumerates that the Additional Sessions Judge shall have all the powers of a Sessions Judge under this

Chapter in respect of any case which may be transferred to him by the Sessions Judge. This Section 400 comes under Chapter XXX. This

Chapter consists of Sections 395 to 405. These sections would not refer about the other relevant sections, namely, Sections 194, 381 and 408 or

409 Code of Criminal Procedure

S.194 Code of Criminal Procedure falls under Chapter XIV. Section 381 comes under Chapter XXIX and Section 408 comes under

Chapter XXXI. Therefore, the word ''transfer'' contained in Section 408 has no relevance to Section 400, which falls under Chapter XXX. Under

this section, the Additional Sessions Judge can exercise the powers of revisional jurisdiction conferred to the Sessions Judge. This means, as

provided in Section 381, the revision cases could be received by the Sessions Judge and then make over the said revisions for hearing to the

Additional Sessions Judge.

The meaning of the word ''transfer'' in various Dictionaries is as follows:

According to ''Rogets Thesaurus'', the meaning of ''transfer'' is make over, transmit or pass.''

According to ''The Law Lexicon, ''transfer'' would mean, to make over from one to another.

According to ''Webster''s New Dictionary'', the word ''transfer'' means transmission.

So, the word ''transfer'' employed in Section 400 Code of Criminal Procedure must be construed to mean the make over, in view of the

analogous provisions contained in Sections 194 and 381 Code of Criminal Procedure

One more aspect can be usefully referred in this context, in order to hold that both Sessions Judge and Additional Sessions judge are

exercising the equal jurisdiction.

u/s 374(2) Code of Criminal Procedure any person convicted on a trial held by a Sessions Judge or an Additional Sessions Judge may

appeal to the High Court. u/s 381(l), an appeal to the Court of Session or Sessions Judge shall be heard by the Sessions Judge or by the

Additional Sessions Judge.

u/s 9(4) Code of Criminal Procedure the Sessions Judge of one sessions division may be appointed by the High Court to be also an

Additional Sessions Judge of another division. Section 28(2) provides that a Sessions Judge or Additional Sessions Judge may pass any sentence

authorized by law; but any sentence of death passed by any such Judge shall be subject to confirmation by the High Court. So, these provisions

would reveal that both Sessions Judge and Additional Sessions Judge are equal and the Additional Sessions Court and the Sessions Court are the

Courts of equal jurisdiction. Therefore, both Sections 408 and bar u/s 407(2) would not apply to the cases where the transfer is sought from the

Additional Sessions Judge to any other Court.

As we have seen earlier, a Sessions Court consists of Sessions Judge. Additional Sessions Judge and Assistant Sessions Judge. Therefore,

when it is contemplated u/s 408(1) that the Sessions Judge can transfer a case from one Criminal Court to another Criminal Court in his sessions

division, it would mean that the Sessions Judge could be referring to a case filed not in the Sessions Court, but pending before the Magistrate.

When the section contemplates the case pending in the criminal Court, it would embrace all the cases pending on the file of such Courts of original

jurisdiction subordinate to the Sessions Court.

It is in this context, another interesting question is raised. Chief Judicial Magistrates are admittedly subordinates to the Sessions Judge having

original jurisdiction. Therefore, the Court of Chief Judicial Magistrate would be covered by a Criminal Court u/s 408 Code of Criminal Procedure

If that be so, a question is likely to be put as to why it was necessary to have the same authority, namely, Chief Judicial Magistrate again included

in Section 409 Code of Criminal Procedure?

118(a). The answer is so simple, some cases after commitment to the Court of Session are found to be triable with equal jurisdiction and

competence by Chief Judicial Magistrate.

In those cases, the Sessions Judge may make over such case to the file of such C.J.M. Those cases alone can be withdrawn and recalled by

Sessions Judge u/s 409 Code of Criminal Procedure Section 381 lays down that a Chief Judicial Magistrate is empowered to hear and dispose of

an appeal made over to him for hearing by the Sessions Judge. It is in that context, u/s 409, not only a case, but an appeal is also indicated which

could be disposed of by the Chief Judicial Magistrate. From this it is clear that Section 408 would cover Chief Judicial Magistrate being

subordinate only in respect of the cases originally filed before him and not in respect of the cases made over by die Sessions Judge to him.

Similarly, Section 409 would only relate to the cases pending before the Chief Judicial Magistrate made over by the Sessions Judge and not to the

cases originally filed before him.

The words in Section 409 are used to mean that a Sessions Judge can withdraw or recall any case made over by him to the Additional

Sessions Judge. The use of the term ''withdrawal'' or ''recall'' is done whenever a regional distribution is made by the Sessions Judge. Thus, it is

because Sessions Judge makes over sessions cases to the Additional Judge, he gets the power to withdraw or recall the said case. This would

obviously not apply to such cases, which are on the file of the Magistrate, inasmuch as, the Criminal cases are not made over by the Sessions

Judge to the Magistrate, as the cases are filed directly in the Court of Magistrate. This has necessitated the employment of different phraseology in

Sections 408 and 409 of Code of Criminal Procedure

Thus, to invoke Section 408 Code of Criminal Procedure, the following conditions are to be fulfilled:

i) It must be a subordinate Court or a lower Court.

ii) It must be a Criminal Court in the same Sessions Division.

iii) It mast have the original jurisdiction for taking the case on file.

If any one of the above conditions is found lacking, then it goes without saying that Section 408 would never be invoked.

121(a). So, my answer to the first question is this:

- The Sessions Judge cannot exercise the power u/s 408 Code of Criminal Procedure for transferring a sessions case from the Additional Sessions

Judge who is having no original jurisdiction and who is exercising the equal jurisdiction of the Sessions Judge in the Court of Session at any stage.

With reference to the second question formulated in this case relating to the powers of Section 409(2) Code of Criminal Procedure in the

case of withdrawal of a case before the commencement of trial, the learned Public Prosecutor, as referred earlier, would submit that since in this

case trial has not commenced, though the charges were framed, the Sessions Judge is well within his power to recall the case from the Additional

Sessions Judge.

In fact, the learned Public Prosecutor has fairly brought to the notice of this Court a decision reported in 1991(2) M.W.N. (Crl.) 17 (supra)

rendered by Pratap Singh, J. (as he then was) in which it was held against his submission. However, he would try to distinguish the same by

submitting that though in the said authority it is held that trial commences as soon as charge is framed, the relevant sections in Code of Criminal

Procedure, which would go to show that the trial starts only on the date of examination of witnesses, have not been considered by the learned

Judge and that therefore, this Court need not follow the said decision and could follow the first principles provided in the various sections of Code

of Criminal Procedure and hold that the order of withdrawal has been passed in this case before the commencement of trial.

In the light of his above submission, let me at the outset consider the judgment rendered by this Court in 1992 (2) M.W.N.(CrL) 17 as

referred above. The relevant observation is as follows.-

Learned Senior Counsel took me to the ruling reported in Manoj Majumdar Vs. State of West Bengal, . In that case, the short question that arose

was with regard to the exact time when a Sessions trial commences. At page 29 column 2, the Division Bench has stated as follows:

Therefore we are inclined to read the judgment to mean that the trial commences with the taking of the plea and not till the stage from Section 231

onwards are completed.

He further relied upon the ruling reported in Amrithappa and Another Vs. State of Karnataka, in which it was held that a case cannot be

withdrawn and proceeded with u/s 409(1) Code of Criminal Procedure after trial has commenced. The Calcutta High Court has held the trial is

said to commence once the accused was questioned and his plea was recorded. The Karnataka High Court has held that after the commencement

of trial, the case cannot be withdrawn. This is also warranted by the wording of Section 409(2) of the Code of Criminal Procedure. On this

ground, the order of the learned Sessions Judge dated 18.12.1990 with drawing S.C. No. 94 of 1990 cannot be sustained.

In the instant case, as it is referred earlier, charges were framed and plea of not guilty was recorded on 8.11.1996. Only thereafter, an

application had been filed for transfer under Sections 408 and 409 Code of Criminal Procedure before the Principal Sessions Judge, Pondicherry,

i.e. on 30.11.1996. Stay was granted on 3.12.1996. Ultimately, on 20.11.1997 the Principal Sessions Judge, Pondicherry recalled the case from

the Additional Sessions Judge and posted the same before his own Court for trial u/s 409(2) Code of Criminal Procedure

The learned Public Prosecutor would contend that Section 409(2) permits the Principal Sessions Judge to recall the case from the Additional

Sessions Judge, which is already made over by him before the commencement of trial and that trial commences in a Sessions case only at the stage

of Section 231 Code of Criminal Procedure on the date which was fixed for the examination of witnesses.

When exactly trial commences? The word ''trial'' is not defined in the present Code of Criminal Procedure. However, the words ''trial'' and

''try'' in a quite number of sections of the Code have been used as referring to a stage after the enquiry. In the light of the said sections, the meaning

attached to those words in the sections could be found out, having regard to the context in which they are used.

As held in The State of Bihar Vs. Ram Naresh Pandey, , in the absence of the definition of the word ''trial'', the meaning of the word ''trial''

must be considered with regard to the particular context in which it was used and with regard to the scheme and purpose of provisions and

considerations.

It is relevant to note that the words ""inquiry and trial'' were both defined in the Code of 1872, but, the definition of the word ''trial'' alone was

omitted in 1882 Code. Later, in 1898 Code, the definition of the word ''inquiry'' was lightly altered by adding the words ""other than the trial"",

leaving the word ''trial'' undefined. The expression ''trial'' generally means, the determination of the issues arising in a particular case. In criminal

matters, as held in several authorities, when the inquiry, which is different from a trial, ends, the trial begins.

Before going into the above question, 1 may refer some of the decisions dealing with the very same question earlier rendered by this Court.

In Emperor Vs. John McIver, , the Full Bench of this Court has considered this point and observed as follows:

When the Court is ready to commence die trial, the accused shall appear or be brought before it, and the charge shall be read out in Court and

explained to him, and he shall be asked whether he is guilty of the offence charged, or claims to be tried.

This, in my opinion, indicates that the trial commences with the arraignment of the accused, that is to say, when the charge is read out to the

accused and he is called upon to plead to it. It has been held to be the point of commencement in the trial of warrant cases Kali Mudali v. Emperor

and I see no reason why it should not equally be the point of commencement of a trial at the Criminal Sessions or the High Court. (underlining is

mine).

In Narayanaswamy Naidu v. Emperor (1909 (9) Cri.L.J. 192 : 32 ILR (Mad) 220), the Full Bench of this Court held as follows:

In a case exclusively triable by a Court of Session, the trial begins only after the commencement and the charge is framed. In a summons case, the

trial really begins when the accused is brought before the Magistrate; the particulars of the offence are stated to him and the Magistrate proceeds

to hear the complaint and take the prosecution evidence-under the definition therefore this cannot be an enquiry; the trial must end in conviction or

acquittal: there is no discharge. (emphasis applied).

The above decisions rendered by the Full Bench of this Court were in the years 1909 and 1936 and it may be noted that these decisions

would be applicable even now, since the definition of trial has been omitted in 1872 Code itself.

In the Code of 1872, the expression ''inquiry'' was defined as follows:

Inquiry includes any inquiry which may be conducted by a Magistrate or Court under the Code.

The word ''trial'' was defined in the said Code as follows:

Trial means the proceedings taken in Court after charge had been drawn up and included the punishment of the offender. It includes the

proceedings under Chapters XVI and XVIII from the time when the accused appeared in the Court.

In the Code of 1882, the definition of ''trial'' was omitted and the expression ''inquiry'' was defined as ""inquiry includes every inquiry

conducted under this Code by a Magistrate or Court.

It may be noted that in substance, it was the same as in the Code of 1872. In the Code of 1898 also, trial is not defined. But, the expression

''inquiry'' with some modification is defined as under

Inquiry includes every inquiry other than a trial conducted under this Code by a Magistrate a Court.

In the Code of 1973, ''inquiry'' is defined as under:

Inquiry means every inquiry other than a trial conducted under this Code by a Magistrate or Court.

Thus, the expression ''trial'' was defined in the Code of 1872, which is omitted in 1882 Code. As such, it has not been defined in the Code,

as it stands now.

The Supreme Court in Union of India v. Maj. Gen. Madan Lai Yadav (1996 SCC (Crl.) 592), by quoting the meaning of the words ''trial''

and ''commence'' from various Dictionaries, would observe as follows:

The word ''trial'' according to Collin''s English Dictionary means:

the act or an instance or trying of proving; test or experiment. Law, a. the judicial examination of the issues in a civil or criminal case by a

competent tribunal and the determination of these issues in accordance with the law of the land. b. the determination of an accused person''s guilt

or innocence after hearing evidence for the prosecution and for the accused and the judicial examination of the issues involved.

According to Ballentine''s Law Dictionary (2nd Edn.) ''trial'' means:

an examination before a competent tribunal, according to the law of the land, of the facts or law put in issue in a cause, for the purpose of

determining such issue. When a Court hears and determines any issue of fact or law for the purpose of determining the right of the parties, it may

be considered a trial.

In Black''s Law Dictionary (Sixth Edn.) Centennial Edn., the word ''trial'' is defined thus:

A judicial examination and determination of issues between parties to action, whether they be issues by law or of fact, before a Court that has

jurisdiction A judicial examination, in accordance with law of the land, of a cause, either civil or criminal, of the issues between the parties, whether

of law or fact, before a Court that has proper jurisdiction.

In Webster''s Comprehensive Dictionary-International Edn., at p. 1339, the word trial is defined thus:

The examination, before a tribunal having assigned jurisdiction, of the facts or law involved in an issue in order to determine that issue. A former

method of determining guilt or innocence by subjecting the accused to physical tests of endurance, as by ordeal or by combat with his accuser. In

the process of being tried or tested. Made or performed in the course of trying or testing.

The word ''commence'' is defined in Collin''s English Dictionary to mean ""to start or begin; come or cause to come into being, operation etc.

In Black''s Law Dictionary, it is defined to mean:

To initiate by performing the first act or step. To being, institute or start.

In the Words and Phrases (Permanent Edn.) Vol.42_A, at p. 171, under the head ''Commencement'', it is stated that ""A ''trial"" commence at least

from the time when word of empanelling of a jury begin.

It would, therefore, be clear dial trial means act of proving or judicial examination or determination of the issues including its own jurisdiction or

authority in accordance with or adjudging guilt or innocence of the accused including all steps necessary thereto. The trial commences with the

performance of the first act or steps necessary or essential to proceed with the trial.

In this context, a comparison of the definitions of the terms ''inquiry'' and ''trial'' in the Codes of 1861, 1872, 1882, 1898 and 1973 may be

helpful in determining die question.

As has been seen the Code of 1872 expressly laid down that ""''trial'''' meant only the proceedings taken in Court after a charge had been drawn

up. The fact that this definition was dropped and not reproduced in the Code of 1882, need not lead to the inference that there was an intention to

give the term ""''Trial"" a connotation different from what it bore in the Code of 1872. Nor should die headings of Chapters XX and XXI lead us to

a different conclusion. These chapters are headed ""Trial of summons cases by Magistrate"" and ""Trial of warrant cases by Magistrate"" It does not

necessarily follow from these headings that every section contained in these chapters relates to the proceeding known as ""trial.

I respectfully agree with the view of law taken in - ''T. Sriramulu v. K. Veerasalingam'', 38 Mad 585. that the proceeding before the Magistrate in

a warrant case under Chapter XXI of the Code of Criminal Procedure is only an inquiry until a charge is framed. It becomes a trial only after a

charge is framed"".

In a similar situation, the Apex Court while dealing with the warrant cases, in Ratilal Bhanji Mithani Vs. State of Maharashtra and Others, ,

would observe as follows:

The trial is a warrant case starts with the framing of charge, prior to it, the proceedings are only an inquiry. After the framing of charge if the

accused pleads not guilty, the Magistrate is required to proceed with the trial in the manner provided in Sections 254 to 258 to a logical end.

Therefore, all these decisions have carefully considered this point after taking into consideration of the omission of the definition of the word

''trial'' and come to the definite conclusion that the dropping of the said definition would not lead to the inference that there is an intention to give the

term ''trial'' a connotation different from what it had in the Code of 1872.

147.Then, what would have been the reason for omitting the definition of the term 34 ""trial""? For answering this question, we have to go through

the various sections of Code of Criminal Procedure relating to different types of trial.

The different classes of trials may be show as follows:

(1) Trial of Warrant cases before the Magistrate (Ss.238 to 250 Code of Criminal Procedure)

(2)Trial of Summons cases before the Magistrate (Ss.251 to 254)

(3)Trial of Sessions cases before the Court of Session (Ss.225 to 237).

In the trial of Warrant cases, there are two procedures: (a) trial started on cognizance taken on police report (Ss.238 to 243).

(b) trial started on cognizance on a complaint other than the police report (Ss.244 to 250).

The trial of Summons cases does not recognize separate procedure for cases instituted on police report or on a private complaint. However,

a distinction in procedure is being maintained as to trial of Warrant cases instituted on the police report or on the private complaint. In the

Summons cases no charge is framed. u/s 251 Code of Criminal Procedure the Court has merely to state and inform the accusation to the accused

and then proceed with the trial.

In the trial of Warrant cases on police report, the charge is framed u/s 240, Code of Criminal Procedure and then proceeded to the

examination of witnesses. In trial under Warrant cases on a private complaint, the witnesses produced by the prosecution are examined and then

charge is framed u/s 246 and then the trial is proceeded.

Therefore, in Summons cases trial is conducted by examining the witnesses even without charge is being framed. In Warrant cases on police

report, the trial is conducted by examining the witnesses after framing the charge. In Warrant cases on private complaint, Court examines the

witnesses and then frames charges and thereafter goes on with the trial by recalling the witnesses already examined or by examining the other

witnesses. So, the term ''trial"" in the light of the above provisions, cannot be understood to be the same in respect of each and every type of trial,

as referred, to above.

In the light of the observation made by the Full Bench in its decision, the trial may be said to be judicial proceeding, but if, in such a

proceeding the Court has no power to convict or acquit the accused or if the proceeding may end in discharge, it is not a trial.

In a trial the accused can claim to be acquitted, if no case is made out. This would be a bar to the subsequent proceeding, so long as the

order of acquittal is not set aside. But, in an inquiry, the final order, in such a case, would be an order of discharge, which would not be a bar to

fresh proceeding. Therefore, the actual distinction between inquiry and trial would be that up to the stage when the proceeding results in discharge,

it is only an inquiry and from the point at which it may result in conviction or acquittal it becomes a trial.

In the instant case, plea of not guilty was recorded as early as 8.11.1996 u/s 228 Code of Criminal Procedure In order to decide the above

question whether the trial has commenced on 8.11.1996, that is, on the date of framing of charge and recording of plea of not guilty, Section 374

Code of Criminal Procedure would be a useful reference.

The provision for appeal is contained in Section 374 of the Code. Section 374(2) is as follows:

Any person convicted on a trial held by a Sessions Judge or an Additional Sessions Judge or on a trial held by any other Court in which a sentence

of imprisonment for more than seven years (has been passed against him or against any other person convicted at the same trial) may appeal to the

High Court.

Therefore, it follows that if there is a right of appeal against the order of conviction based on a plea of guilty u/s 229 Code of Criminal

Procedure, the said right accrues because he was so convicted on a trial held by the Sessions Judge or Additional Sessions Judge, as the case may

be.

If the argument of the learned Public Prosecutor that commencement of trial is only on the date of examination of witnesses, then it amounts to

accepting the proposition that the conviction on plea of guilty u/s 229 Code of Criminal Procedure cannot be construed to be the conviction on a

trial, which alone could be agitated by way of an appeal u/s 374 Code of Criminal Procedure

Therefore, it is inconceivable to think that the trial of a Sessions case in the case where the accused pleads guilty commences with the plea

whereas in the case where the accused claims to be tried the commencement of the trial is deferred to some other date. The commencement in

either case must be the same, in view of the wordings contained in die provisions for appeal against conviction. Therefore, in my view, the trial

commences as soon as the charge is framed and plea is taken. This view of mine finds support from the decision of the Division Bench of the

Calcutta High Court reported in Manoj Majumdar Vs. State of West Bengal, .

Yet another submission was made by the learned Public Prosecutor to the effect that Section 228 (l)(a) Code of Criminal Procedure provides

that if the Sessions Judge is of opinion that the case committed to him is not exclusively triable by the Court of Sessions, he may frame a charge

against the accused and by order, transfer the case for trial to the Chief Judicial Magistrate and that therefore, in the light of the above section, the

framing of the charge by Sessions Judge and the trial by Chief Judicial Magistrate are two distinct stages and the wording contained in Section

228(1) (a), transfer the case for trial after framing of the charge would indicate that trial commences only from the date of examination of the

witnesses, not at the stage of framing the charge.

The above submission, in my considered opinion, does not merit acceptance for the following reasons:

The procedure for trial is given in Chapter XVIII of Code of Criminal Procedure The caption is ""Trial before a Court of Sessions"". Sections 225

and 226 relating to the duty of the Public Prosecutor in explaining the case to the Sessions Court.

If there is no sufficient ground for proceeding, the accused shall be discharged u/s 227 Code of Criminal Procedure u/s 228, the Sessions Judge, if

he finds a ground to presume that accused committed the offence triable by the Sessions, shall frame charge, read over to him and ask him whether

he pleads guilty or not.

In the alternative, if he finds the materials for the offence not triable by the Court of Session, even then he could frame charge against the accused

and then transfer the case to the Chief Judicial Magistrate.

For understanding the dual capacity of the Sessions Judge, Section 228 is quoted below:

Framing of charge.-(1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the

accused has committed an offence which-

(a) is not exclusively triable by the Court of Session, he may, frame a charge against the accused and, by order, transfer the case for trial to the

Chief Judicial Magistrate, and thereupon the Chief Judicial Magistrate shall try the offence in accordance with the procedure for the trial of Warrant

Cases instituted on a police report;

(b) is exclusively triable by the Court, he shall frame in writing a charge against the accused.

(2) Where the Judge frames any charge under Clause (b) of Sub-section (1), the charge shall be read and explained to the accused and the

accused shall be asked whether he pleads guilty of the offence charged or claims to be tried.

Under this section, it is mandatory for the Sessions Judge, if there is a ground made out for the sessions case, to frame charge for the said sessions

offence, explain to the accused and ask about his plea. However, in respect of the cases not triable by the Sessions Court, die Sessions Judge may

frame a charge against the accused and transfer the case for trial to Chief Judicial Magistrate. This would mean that even without framing of the

charge he can transfer the case for trial, since it is only directory.

Under Section 229 Code of Criminal Procedure, the Sessions Judge in a sessions case after reading out the charge and explaining the same to the

accused, if the accused pleads guilty, shall record the plea and may convict him. If on the other hand, the accused pleads not guilty and claims to

be tried, then the Sessions Judge shall fix a date for the examination of witnesses on recording the said plea.

The recording of plea, either of guilty or not guilty on charge, being read out to the accused, is the crucial time at which the trial can be said to be

commenced. As we have already seen u/s 374 Code of Criminal Procedure even against the conviction on the plea of guilty a person can file an

appeal in the High Court and the conviction on plea of guilty also can be considered to be the conviction on trial held by the Sessions Judge.

Therefore, once the charge is framed and asked for his plea, the trial commences.

In the case of recording of plea of guilty, on conviction the trial ends. In the case of recording of plea of not guilty, trial is proceeded with.

Therefore, the wordings contained in Section 228 as transfer the case for trial to the Chief Judicial Magistrate means for asking die plea from the

accused on the basis of the charge framed or yet to be framed, which alone would be considered to be the commencement of trial. In other words,

explaining the charges framed for recording the plea of the accused is the beginning of the trial.

This aspect could be further probed in the light of the other provisions contained in Code of Criminal Procedure The consistent pica of die

learned Public Prosecutor is that the date of the recording of the evidence alone has to be considered for reckoning the date of commencement of

trial u/s 231 Code of Criminal Procedure He had also brought to my notice Section 437(6) Code of Criminal Procedure putting a mandate on the

Magistrate to release the accused, when the trial is not concluded within a period of 60 days from the first date fixed for taking the evidence in the

case. It is also submitted that under the old Code, the Sessions Judge can straightaway proceed to try the accused* but under the new Code, the

Judge has to fix a date for the examination of witnesses for the trial of Sessions cases and that the procedure therefore became almost identical to

that of Warrant cases and that therefore, the date of examination of witnesses irrespective of the types of trial cases, alone has to be taken into

consideration for reckoning the commencement of trial.

I am afraid that this submission has no legal basis. Commencement of recording of evidence would not, in my view, have any relevance to the

point of time at which the trial commences, I may state that, in the light of the various provisions relating to the procedure contemplated for the

various types of trial and in view of the Full Bench judgment of this Court, the trial starts in summons case when the accusation is sated to the

accused and his plea is recorded; in the Warrant cases on a private complaint, the trial starts when the charge is framed and his plea is recorded

after examination of witnesses produced by the prosecution; in the trial of Warrant cases on police report, the trial starts when the charge is framed

and explained to die accused and his plea is recorded before the commencement of recording the evidence and in Sessions cases, the trial starts

when the Sessions Court, after committal, records the plea of the accused after the framing of the charge.

The careful reading of the relevant sections referring various types of trial cases would make it clear that evidence is being recorded by the

Court even before the trial is started in the private complaint warrant cases and the trial is stated even without the framing of the charge is

Summons cases. Therefore, it cannot be generally started that the date of recording of the evidence alone would have to be taken as the date of

commencement of trial.

For instance, as per Section 311, the Court can summon any witness and examine him and record his evidence at the stage of inquiry. Under

S319, the Court, during the course of inquiry, while recording evidence of witnesses, if it appears that some other person has also committed any

offence, can proceed against him also.

Under S3 22, in the course of inquiry after some evidence was recorded, if the Court finds that it has no jurisdiction to try the case, it can

submit the case to the Chief Judicial Magistrate for further action u/s 323, even during the course of inquiry, on the basis of evidence recorded

before the Court, if the Court finds that the offence is triable by Sessions, the case shall be committed to the Court of Session.

u/s 326 Code of Criminal Procedure, after some evidence was recorded in the course of inquiry, if any Judge or Magistrate ceases to

exercise jurisdiction and he succeeds by another Judge or Magistrate, the said Judge or Magistrate may act on the evidence already recorded in

the inquiry and continue to record the further evidence.

These sections would disclose that the recording of evidence need not be necessarily in the course of trial, it could also be in the course of

inquiry. Moreover, the Chapter XXIII provides the caption as the ""Evidence in Enquiries and Trials"".

In a similar situation, when the order of refusal of bail was challenged on the strength of Section 437 (6) Code of Criminal Procedure, in

Robert Lendi Vs. The Collector of Customs and another, , the Division Bench of the Delhi High Court upholding the order of refusal held that

though in the said case on a private complaint warrant procedure sixty days over from the first date fixed for taking evidence, the trial had not yet

started, though some witnesses had been examined, since the charge had not been framed. Therefore, mere date of recording of evidence would

not be the relevant factor for the purpose of deciding the point of time at which the trial is commenced.

Regarding the point of ''commencement of trial'' as provided in Section 409(2) Code of Criminal Procedure, apart from the decisions referred

above, I have been able to lay my hands on some of the other decisions, which have been referred below. In these decisions, the various High

Courts have held that after framing of charge, it is not permissible for the Sessions Judge u/s 409 Code of Criminal Procedure to withdraw or recall

the cases already made over to the Additional Sessions Judge:

(1) Amrithappa and Another Vs. State of Karnataka, - Karnataka Division Bench).

(2) Punjab Singh and Others Vs. State of Uttar Pradesh, - Allahabad Division Bench).

(3) Tuneshwar Prasad Singh and Another Vs. State of Bihar, - Patna Full Bench).

(4) Alim and Others Vs. Taufiq and Another, - Allahabad High Court).

(5) State of M.P. v. Raja @ Rajendra and Ors. (1993 (2) Crimes 159-Madhya Pradesh).

(6) Ganibhir Sinhji Bhavsinhji Padheriya v. State of Gujarat ( 1993 (2) Crimes 363- Gujarat).

(7) Hanninder Singh v. D.PMajumder (1993 Cri.L.J. 815-Calcutta).

(8) Sriramulu v. Veeraraghavan (27 M.L.J. 589).

(9) Ramanathan Chettiar v. Emperor (17 L.W.412 : 923 46 Mad. 719).

Fortunately, I could locate a recent Supreme Court judgment delivered in Common Cause v. Union''of India I (1997) CCR 248 (SC), in

which the Apex Court has given the details as to when trial commences in various types of trials. The observation, which virtually decides this

point, is as follows:

(i) In cases of trials before Sessions Court the trials shall be treated to have commenced when charges are framed under S 228 of the Code of

Criminal Procedure, 1973 in the concerned cases.

(ii) In cases of trials of warrant cases by Magistrates if the cases are instituted upon police reports the trials shall be treated to have commenced

when charges are framed u/s 240 of the Code of Criminal Procedure, 1973 while in trials of warrant cases by Magistrates when cases are

instituted otherwise than on police report such trial shall be treated to have commenced when charges are framed against the concerned accused

u/s 246 of the Code of Criminal Procedure, 1973

(iii) In cases of trials of summons cases by Magistrates, the trials would be considered to have commenced when the accused who appear or are

brought before the Magistrate are asked u/s 251 whether they plead guilty or have any defence to make.

In view of the above analysis and authorities, my answer to the second question is this: ""The same Sessions Judge cannot exercise jurisdiction

alternatively u/s 409(2) Code of Criminal Procedure to withdraw a Sessions case made over earlier u/s 194 Code of Criminal Procedure pending

on the file of the Additional Sessions Judge with co-existing jurisdiction, after framing of the charge and recording the plea of the accused, which

amounts to commencement of trial.

While dealing with the above two questions of law, this Court, in the light of the various provisions and citations referred to above, has also

formulated several other propositions, as discussed above.

To sum up:-

(1) The Court of Additional Sessions Judge is not a subordinate Court or a lower Court to the Court of Sessions Judge. Both the Judges are

exercising the same and equal jurisdiction in the disposal of cases.

(2) S.408(1) Code of Criminal Procedure would relate to the only cases pending in the criminal Courts or original jurisdiction. Additional Sessions

Judges do not exercise the original jurisdiction. So, the words ""any particular case"" contained in Section 408(1) would relate to the cases pending

in Criminal Court, which could take cognizance, it would not refer to the cases already made over by the Sessions Judge to the Additional

Sessions Judge.

(3) The Sessions Judge being the administrative head presiding over the Court of Session could distribute the cases or make over the cases to

various Additional Sessions Judges.

(4) For the cases pending before the Additional Sessions Judge, the High Court can be straightaway moved, since the bar u/s 407(2) would not be

applicable to those cases.

(5) Since the word ''lower Court'' is used in Sub-section (2) of Section 408, like the word subordinate'' is used in Section 407(2), it must mean

that the Criminal Court as referred in Section 408(1) must be necessarily a lower Court. Section 408(2) is a new introduction.

(6) A Sessions Judge has got jurisdiction to receive a case, take on file, hear, take cognizance and then make over the same to the Additional

Sessions Judge. An Additional Sessions Judge gets jurisdiction to deal with such matter only when it is placed before him under the orders of the

Sessions Judge of the same division.

(7) The Court of the Additional Sessions Judge is not a separate Court, but a part of the Court of Session or the Court of Session itself. Therefore,

the Sessions Judge cannot transfer a case from his own Court to his own Court.

(8) The actual distinction between ''inquiry'' and ''trial'' would be that up to the stage when the proceeding results in discharge, it is only an inquiry

and from the point at which it may result in conviction or acquittal, it becomes a trial.

(9) The trial starts in Summons case when the accusation is stated to the accused for recording his plea; in the Warrant case on private complaint,

the trial starts when the charge is framed and read over to him for recording his plea after examination of witnesses; in the trial of Warrant case on

police report, the trial starts when the charge is framed and explained to the accused for recording his plea, before recording evidence; and in

Sessions Case the trial starts when the Sessions, after committal, framed the charge and read over to him for recording his plea.

Incidentally, while dealing with the facts of the case, this Court could find some disquieting features as given below, which are to be corrected

at least in the future by the subordinate judiciary:

(1) The Principal Sessions Judge on entertaining the. transfer petition filed by the accused granted stay and issue notice to the Public Prosecutor on

3.12.1996. The transfer petition was based on some allegations against the Additional Sessions Judge. However, the Principal Sessions Judge did

not think it fit to call for remarks from the Additional Sessions Judge on the date of granting stay. On a later date, the Public Prosecutor filed a

counter opposing the application and refuting the allegations made against the Additional Sessions Judge on 20.12.1996. Only after counter, the

Principal Sessions Judge chose to call for the remarks from the Additional Sessions Judge. This, in my view, is not a correct procedure. The

allegations found in the transfer petition also being vague do not give the details of the specific incidents by which the accused persons developed

apprehension. Therefore, there is no valid reason for calling for remarks, especially when the counter has been filed by the Public Prosecutor

refuting the said allegations.

(2) The Additional Sessions Judge on receipt of the stay order straightaway addressed the High Court pointing out the illegality in granting stay by

the Principal Sessions Judge, while the Sessions Case is pending before him for trial. This shows that he has approached directly the High Court

even without sending a copy of the same to the administrative head, the Principal Sessions Judge. However, on receipt of the letter containing

direction by the Principal Sessions Judge, calling for remarks, the Additional Sessions Judge did not choose to send the remarks explaining the

situation, but he simply sent a letter in reply to the said direction letter intimating the Principal Sessions Judge that he had already addressed the

High Court with reference to this. This also, in my view, is not a correct procedure.

(3) The Principal Sessions Judge after receipt of the intimation from the Additional Sessions Judge that the High Court had already been addressed

in this matter, at least could have waited till the High Court take a decision administratively on the said letter or else even during the pendency of

the transfer application before the Principal Sessions Judge, he could have addressed the Registry of the High Court complaining about the conduct

of the Additional Sessions Judge. This is not done. Instead, the Principal Sessions Judge has hurriedly passed an order after hearing the parties by

recalling the case from the Additional Sessions Judge and posting it before himself for trial. This again may not be a correct procedure.

(4) The learned Public Prosecutor of Pondicherry in the Principal Sessions Court filed a counter affidavit opposing the transfer application on the

question of jurisdiction as well as on merits by refuting the allegations made against the Additional Sessions Judge. Having taken such a stand

before the Principal Sessions Judge, the learned Public Prosecutor for Pondicherry appearing before this Court, by way of supporting the order of

the Principal Sessions Judge, submitted that the Principal. Sessions Judge has got jurisdiction for transfer under Code of Criminal Procedure and

the order was valid on merits as well, since remarks called for from the Additional Sessions Judge was not sent in time.

(5) The Principal Sessions Judge, instead of considering the merits of the case for transfer, merely passed an order u/s 409(2) on the ground that

trial has commented, recalling the case on the ground that remarks have not been sent, without considering the counter by the Public Prosecutor,

wherein those allegations have been refuted. This also, in my opinion, would not reflect the judicial application of mind on the part of the Principal

Sessions Judge.

However, in view of the above happenings, I could see that there is a tussle or tug of war between the Principal Sessions Judge and the

Additional Sessions Judge over the question ""who is big?"" With great agony and anguish I could say that this sort of unhealthy battle between the

Principal Sessions Judge and the Additional Sessions Judge may not be in the interest of Institution. In the words of Sir Edward Coke, the Chief

Justice of England, ""the King is under no man, but under God and the law"". Therefore, every one, even the members of the judiciary is

unquestionably under the supremacy of law.

For the foregoing discussion, 1 am of the considered view, both the orders, that is, order granting stay u/s 408(3) r/w. 407(6) Code of

Criminal Procedure dated 3.12.1996 and the order allowing the transfer application u/s 408 r/w 409(2) and (3) 20.1.1997 suffer with the

incurable illegality, which are liable to be set aside and accordingly, the same are set aside. However, by involving suo motu powers, I transfer the

Sessions case in question to the Additional Sessions Judge at Pondicherry instead of sending back to the Additional Sessions Judge, Karaikal, in

view of the peculiar circumstances narrated above.

The Office is directed to sent the records which have been already called for; to the Additional Sessions Judge at Pondicherry for the trial to

be continued. The Additional Sessions Judge, Pondicherry is directed to dispose of the matter expeditiously in accordance with law. Accordingly,

this revision is disposed of.

Before parting with this order, I must record die valuable assistance given by Mr. Murugesan, the learned Public Prosecutor for Pondicherry,

Mr. Natarajan, Additional Public Prosecutor. Pondicherry and Mr. V. Padmanabhan, who is in Amicus Curiae appointed by this Court and this

Court appreciates them for their excellent preparation and masterly presentation of the various propositions of law touching on these points, which

alone enabled this Court to decide the issues raised in this case.

Since these issues relate to the procedure to be followed by the Subordinate Judicial Officers of this Court, I deem it fit to give a direction to

the Registry to place a note before My Lord The Hon''ble The Chief Justice along with the judgment copy to get an approval for circulating the

copies of this judgment to all the subordinate Judicial Officers of this Court.