Ram Dayal vs State of Punjab

S.S. Sudhalkar, J.

A criminal case arising from FIR No. 23 dated 18.3.1992 registered at Police Station Sadar Mansa for the offence under Sections 7 and 13(2) of the Prevention of Corruption Act (hereinafter referred to as the Act) is pending in the Court of learned Additional Sessions Judge cumSpecial Judge, Bathinda. The petitioner who is the accused in the case has contended that on 1.4.1992 Mansa became a separate independent district and on for about February, 1994, learned Additional Sessions Judge was posted at Mansa and powers of Special Judge under the Act have also been conferred upon the learned Additional Sessions Judge, Mansa. He contends that other cases under the Act pertaining to Mansa district were transferred to Special Judge, Mansa but inadvertently the case arising from the above FIR is left out. Hence, the petitioner requests that the case be transferred from Bathinda Sessions Division to Additional Sessions Judge, Mansa. A preliminary point arose when the case came up for hearing because a question was raised as to whether the petitioner should have approached the learned Sessions Judge of the Sessions Division before approaching this Court for transfer. The learned counsel for the petitioner contended that when a criminal case is to be transferred from one Session Division to another, it is only the High Court which has the power to do so. It was pointed out by the learned AAG for the State that though Mansa is carved out as a separate district, it is still under Sessions Division, Bathinda and the Sessions Judge is posted at Bathinda and there is no Sessions Judge posted at Mansa.

Section 408 of the Code of Criminal Procedure (hereinafter referred to as the Code) empowers the Sessions Judge to transfer a criminal case from one criminal Court to another criminal Court in his Sessions Division. Session 407 of the Code empowers the High Court to transfer a case or appeal from a criminal Court subordinate to its authority to any other criminal Court of equal or superior jurisdiction. Subsection (2) of Section 407 of the Code empowers the High Court to act either on the report of the lower Court, or on the application of a party interested, or on its own initiative. However, there is proviso to subsection (2). It reads as under :

"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." (emphasis supplied).

Therefore, though the High Court has powers under Section 407 of the Code to transfer a case from one criminal Court to another criminal Court, if both the criminal Courts are in the same Sessions Division then no application for such a transfer will lie to the High Court until a transfer application with such a prayer has been made to the Sessions Judge and rejected by him.

Though Mansa is carved out as a separate district, the learned counsel for the petitioner has not been able to show that it is a separate Sessions Division by itself while learned AAG has argued that Mansa is still under the Sessions Division, Bathinda. The position as stated by the learned AAG is verified to be correct. When this is the position, the Sessions Judge, Bathinda has the power to entertain and decide an application for transfer of a case as prayed for by the petitioner. In such a case, the bar of proviso to subsection (2) of Section 407 of the Code will come into play and, therefore, for the technical reason, this application for transfer is held to be not maintainable. The petitioner''s right to approach to Sessions Judge for transfer is not affected by this judgment.

In view of the above reasons, this petition deserves to be dismissed. It is hereby dismissed.