Radhey Shyam and Another vs State of U.P.

B.N. Katju, J.—The applicants filed an application in this Court u/s 407 Code of Criminal Procedure for transfer of Sessions Trial No. 210 of 1981 State v. Balgovind and Ors.from the court of 5th Additional Sessions Judge, Allahabad to some other competent court within the same Sessions Division When the aforesaid application was heard by a single Judge a preliminary objection was taken that 38-A.Cr.R, the application was not maintainable in view of the proviso to Sub-section (2) of Section 407 Code of Criminal Procedure. The learned Counsel for the applicants, however, contended that as the Sessions Trial was part-heard the proviso to Sub-section (2) of Section 407 Code of Criminal Procedure was inapplicable as the Sessions Judge had no jurisdiction to transfer a part heard Sessions Trial u/s 408 Code of Criminal Procedure. In support of his contention, the learned Counsel for the applicants relied on the Division Bench decision of this Court in State v. Gyan Chand, Criminal Misc. Case No. 747 of 1971 and Criminal Misc. Case No. 3318 of 1972, decided on 17-9-1974 in which it was held:-

Sub-section (1-C) of Section 528 Code of Criminal Procedure does not confer power on the Sessions Judge to trnsfer a sessions trial from the file of one Addl. Sessions Judge to another Addl. Sessions Judge or Assistant Sessions Judge in the same Sessions Division once the trial has commenced before the Addl. Sessions Judge. However, if the case is pending before the Assistant Sessions Judge the Sessions Judge has the power to entertain an application for the transfer of the Sessions trial and to transfer it to another Additional or Assistant Sessions Judge, even though the trial has already commenced.

Where trial has already commenced before the Additional Sessions Judge it is not necessary for the party to comply with the provisions of Section 526(1-A), Code of Criminal Procedure, he can move the High Court direct for the transfer of the part heard sessions trial to the file of another Sessions Judge, but if such trial is pending before the Assistant Sessions Judge it is necessary for the party to comply with the provisions of Sub-section (1-A) of Section 526, Code of Criminal Procedure.

It is not open to the Sessions Judge to entertain an application u/s 528, Code of Criminal Procedure for the transfer of the case from the file of the Additional Sessions Judge in cases the trial has commenced before the said Additional Sessions Judge but if the trial has been commenced before the Assistant Sessions Judge the Sessions Judge can and must entertain the application u/s 528, Code of Criminal Procedure for the transfer of the case to another Additional Sessions Judge or Assistant Sessions Judge in the same Sessions Division.

The learned Single Judge was not in agreement with the decision of this Court in State v. Gyan Chand (supra). He accordingly referred the undermentioned question to a Full Bench for decision:-

Whether a Sessions Judge has no power u/s 408 of the new Code of Criminal Procedure to transfer a part heard case or appeal from the court of an Additional Sessions Judge to some other competent court within his sessions division and the limitations imposed u/s 409 Sub-clause (2) of the new Code are applicable in exercise of the power of transfer conferred u/s 408 of the new Code ?

We are required to answer this question.

Section 407(1) Code of Criminal Procedure confers power on the High Court to transfer a case or appeal from one subordinate Criminal Court to any other such Criminal Court of equal or seperior jurisdiction if it appears that it is expedient for the ends of justice. u/s 407(2) Code of Criminal Procedure the High Court may exercise this power either on the report of the lower court, or on the application of a party interested, or on its own initiative. An application by a party interested to the High Court for transferring a case from one Criminal Court to another Criminal Court in the same sessions division is barred by the proviso to Sub-section (2) of Section 407 Code of Criminal Procedure unless an application for such transfer has been made to the Sessions Judge and rejected by him.

It is mentioned in Section 9 Code of Criminal Procedure that the State Government shall establish a court of Session in every sessions division. Every court of Session shall be presided by a Judge, to be appointed by the High Court and the High Court may also appoint Additional Sessions Judges and Assistant Sessions Judges to exercise jurisdiction in a Court of Session.

It was rightly held in State v. Gyan Chand, Criminal Misc. Case No. 747 of 1971and 3318 of 1972 decided on 17-9-1974--

The expression ''Criminal Court'' in so far Sections 526 and 528 Code of Criminal Procedure are concerned must be given a wider meaning to mean a Court exercising Criminal Jurisdiction. For the purposes of these two sections the Court of each Additional Sessions Judge or Assistant Sessions Judge shall be a Criminal Court though all of them shall be exercising jurisdiction in the same court of Session.

It may be mentioned that Section 526(1-A) Code of Criminal Procedure 1898 is similar to the proviso to Sub-section (2) of Section 407 Code of Criminal Procedure and Section 528(1-C) Code of Criminal Procedure 1898 is similar to Section 408(1) Code of Criminal Procedure.

Thus all Additional Sessions Judges in a sessions division are separate Criminal Courts for the purposes of the proviso to Sub-section (2) of Section 407 Code of Criminal Procedure and Section 408(1) Code of Criminal Procedure although they exercise jurisdiction in the same court of Session.

The word ''case'' used in the proviso to Sub-section (2) of Section 407 Code of Criminal Procedure and Section 408(1) Code of Criminal Procedure must be given a wide meaning. It thus includes all trials and appeals whether their hearing has commenced or not.

It, therefore, follows that no application by a party interested is maintainable in the High Court for transferring a trial or an apppeal whether its hearing has commenced or not, from one Additional Sessions Judge to another Additional Sessions Judge in the same sessions division unless an application for such transfer has been made to the Sessions Judge and rejected by him in view of the proviso to Sub-section (2) of Section 407 Code of Criminal Procedure.

The reason for imposing a bar on a direct application to the High Court by the proviso to Sub-section (2) of Section 407 Code of Criminal Procedure appears to be the conferment of concurrent power of transfer on the Sessions Judge of case from one Criminal Court to another Criminal Court in his sessions division if it is expedient for the ends of justice u/s 408(1) Code of Criminal Procedure and the exercise of this power on an application of a party interested u/s 408(2) Code of Criminal Procedure. A party interested is thus required to move such an application before the Sessions Judge first and only after it is rejected that such an application is maintainable in the High Court u/s 407(2) Code of Criminal Procedure. It may be mentioned that in view of Section 412 Code of Criminal Procedure reasons have to be given by the Sessions Judge for rejecting ah application u/s 408 Code of Criminal Procedure. It, therefore, follows that the Sessions Judge is empowered u/s 408(1) Code of Criminal Procedure to transfer a trial or an appeal from one Additional Sessions Judge to another Additional Sessions Judge in his sessions division whether its hearing has commenced or not on an application by a party interested if it is expedient in the interest of justice.

It is significant to note that the proviso to Sub-section (2) of Section 407 Code of Criminal Procedure only bars an application by a party interested to the High Court for transferring a case from one Criminal Court to another Criminal Court in the same sessions division unless such an application for transfer has been made to the Sessions Judge and rejected by him. It does not impose any bar on the power of the High Court u/s 407(1) Code of Criminal Procedure to transfer a case from one Criminal Court to another Criminal Court in the same sessions division either on the report of the lower court or on its own initiative u/s 407(2) Code of Criminal Procedure.

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. But from this it cannot be inferred that the Sessions Judge is not competent to transfer a case from one Additional Sessions Judge to another Additional Sessions Judge in his sessions division either on the application of the party interested or on his own initiative as under Sub-section (1) of Section 408 Code of Criminal Procedure the Sessions Judge is empowered to transfer a case from one Criminal Court to another Criminal Court in his sessions division irrespective of the fact whether they are lower courts or not. It has been mentioned in Sub-section (2) of Section 408 Code of Criminal Procedure that the Sessions Judge may act on the report of the lower court as the Sessions Judge is also empowered to transfer cases from one lower Criminal Court to another lower Criminal Court in his sessions division. The word ''lower Criminal Court'' would apply to the Courts of Assistant Sessions Judge and Magistrates. The Sessions Judge can thus transfer cases on the report of such lower court to another lower court of competent jurisdiction in his sessions division.

It is, however, open to an Additional Sessions Judge to make a report to the High Court for transfer of a case to another Additional Sessions Judge in his sessions division which the High Court can entertain as it is not barred by the proviso to Sub-section (2) of Section 407 Code of Criminal Procedure.

It appears from a plain reading of Section 409(2) Code of Criminal Procedure that at any time before the trial of the case or hearing of the appeal has commenced before an Additional Sessions Judge the Sessions Judge may recall any case or appeal which he has made over to him. It therefore, follows that the Sessions Judge is not empowered to withdraw or recall any case or appeal which he has made over to an Additional Sessions Judge after the trial of the case or the hearing of the appeal has commenced.

It is noteworthy that in view of Section 194 Code of Criminal Procedure an Additional Sessions Judge is empowered to try only such cases as the Sessions Judge of the division by general or special order makes over to him for trial and in view of Section 381(2) Code of Criminal Procedure an Additional Sessions Judge is empowered to hear only such appeals as the Sessions Judge of the division may by general or special order make over to him. The making over of a case for trial or an appeal for hearing to an Additional Sessions Judge by the Sessions Judge is connected with the distribution of business which is purely administrative. It, therefore, follows that the power conferred on the Sessions Judge u/s 409(2) Code of Criminal Procedure to recall any case or appeal which he has made over to any Additional Sessions Judge before the trial of the case or hearing of the appeal has commenced, is also purely administrative as it must also be in connection with the distribution of business. It is true that the Sessions Judge is barred by Section 409(2) Code of Criminal Procedure to recall a case or appeal from an Additional Sessions Judge after the trial of the case or the hearing of the appeal has commenced, but from this it cannot be inferred that the power conferred on the Sessions Judge to recall a case or an appeal from an Additional Sessions Judge before the trial of the case or the hearing of the appeal has commenced is not administrative. It appears that this bar has been imposed on the Sessions Judge by the legislature as it may have thought that it would not be proper to confer administrative power on the Sessions Judge to recall a case or an appeal from an Additional Sessions Judge after the trial of the case or the hearing of the appeal has commenced, as an Additional Sessions Judge exercises jurisdiction in the same court of Session in which the Sessions Judge exercises jurisdiction and is thus not subordinate to him. Once the trial of a case or hearing of an appeal commences before an Additional Sessions Judge it is only proper that it is concluded before him and is not transferred by the Sessions Judge in connection with distribution of business. It is noteworthy that the Sessions Judge is empowered u/s 409(1) Code of Criminal Procedure to withdraw any case or appeal from or recall any case or appeal which he has made over to any Assistant Sessions Judge or the Chief Judicial Magistrate subordinate to him irrespective of the fact whether the trial of the case or hearing of the appeal has commenced or not. The bar imposed on a Sessions Judge to recall a case or an appeal which he has made over to an Additional Sessions Judge after the trial of the case or the hearing of the appeal has commenced is thus a bar on the administrative power of the Sessions Judge to recall a case or an appeal from an Additional Sessions Judge in connection with the distribution of business.

The power conferred by Section 408(1) Code of Criminal Procedure on the Sessions Judge to transfer a case from one Criminal Court to another Criminal Court in his Sessions Division if it is expedient for the ends of justice and a similar power conferred on the High Court by Section 407(1) Code of Criminal Procedure on an application of a party interested, is judicial and not administrative, as Sub-sections (3), (4), (5), (6), (7) and (9) of Section 407 Code of Criminal Procedure are applicable to both the Sessions Judge as well as the High Court. It is clear from the aforesaid Sub-sections that the transfer of a case from one Additional Sessions Judge to another Additional Sessions Judge in the same sessions division by the Sessions Judge as well as the High Court is nut done administratively in connection with the distribution of business but judicially if it is expedient in the interest of justice after hearing the parties.

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 a 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 to another 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.

It is necessary to point out that the power conferred on the Sessions Judge u/s 409(1) Code of Criminal Procedure to withdraw any case or appeal from or recall any case or appeal which he has made over to any Assistant Sessions Judge or the Chief Judicial Magistrate subordinate to him; the power conferred on the Chief Judicial Magistrate u/s 410(1) Code of Criminal Procedure to withdraw any case from or recall any case which he has made over to any Magistrate subordinate to him and to inquire into or try such case himself, or refer it for inquiry or trial to any other such Magistrate competent to inquire into or try the same; the power conferred on the judicial Magistrate u/s 410(2) Code of Criminal Procedure to recall any case made over by him under Sub-section (2) of Section 192 Code of Criminal Procedure to any other Magistrate and to inquire into or try such case himself and the power conferred on District Magistrate or Sub-Divisional Magistrate u/s 411 Code of Criminal Procedure to make over, for disposal, any proceeding which has been started before him, to any Magistrate subordinate to him and to withdraw any case from, or recall any case which he has made over to, any Magistrate subordinate to him, and dispose of such proceeding himself or refer it for disposal to any other Magistrate are all administrative powers in connection with the distribution of business. These powers are distinct from the judicial power of transfer conferred on the High Court and the Sessions Judge to be exercised if expedient for the ends of justice.

For the reasons given above, with respect, we are not in agreement with the undermentioned answers given by the Division Bench of this Court in Criminal Misc. Case No. 747 of 1971 and Criminal Misc. Case No. 3318 of 1972 decided on 17-9-1974;

Sub-section (1-C) of Section 528 Code of Criminal Procedure does not confer power on the Sessions Judge to transfer a sessions trial from the file of one Additional Sessions Judge to another Additional or Assistant Sessions Judge in the same sessions division once the trial has commenced before the Additional Sessions Judge.

Where trial has already commenced before the Additional Sessions Judge it is not necessary for the party to comply with the provisions of Section 526(1-A) Code of Criminal Procedure he can move the High Court direct for the transfer of the part heard sessions trial to the file of another Sessions Judge.

It is not open to the Sessions Judge to entertain an application u/s 528 Code of Criminal Procedure for the transfer of the case from the file of Additional Sessions Judge in case the trial has commenced before the said Additional Sessions Judge.

We are in respectful agreement with the view taken by the Delhi High Court Noor Mohammad Vs. State of U.P. and Another, .

For the reasons given above our answer to the question referred to us is that the Sessions Judge is empowered u/s 408 Code of Criminal Procedure to transfer a part heard case or appeal from a court of an Additional Sessions Judge to another competent Court within his sessions division if it is expedient in the interest of justice and the limitations imposed u/s 409(2) Code of Criminal Procedure are not applicable in exercise of the power of transfer conferred u/s 408 Code of Criminal Procedure.

Before concluding it may be mentioned that it was contended by the learned Counsel for the applicants that the learned Single Judge was not competent to make this reference as the Division Bench decision of this Court in State v. Gyan Chand (supra) was binding on him. This contention is without force. It was open to the learned Single Judge to refer the question framed by him to a Full Bench for decision as he was not in agreement with the view taken in State v. Gyan Chand (supra).

Let our answer be placed before the appropriate Bench.