Sunitha Venkatram and Others vs Divya Rayapati

S. Manikumar, J.—Material on record discloses that the respondent/Mrs. Divya Rayapati, has filed a petition, under Section 12 of the Protection of Women from Domestic Violence Act, 2005, claiming various reliefs, under Sections 18, 19 and 22 of the said Act, and that the said petition has been taken on file in M.C. No. 70 of 2013, on the file of the 23rd Metropolitan Magistrate, Saidapet, Chennai-15.

Mr. Ashwant Akula Venkatram is the husband of the respondent and the revision petitioner in Crl.R.C. Nos. 184 and 186 of 2015, respectively. He is represented by his Power of Attorney, Mr. Sankara Narayanan. Crl.R.C. Nos. 183 and 185 of 2015, are filed by Mrs. Sunitha Venkatram, W/o. Mr. Venkatram Akula, represented by her Power of Attorney. She is the mother of Mr. Ashawant Akula Venkatram.

Material on record further discloses that pending M.C. No. 70 of 2013, on the file of the 23rd Metropolitan Magistrate, Saidapet, Chennai-15, M.P. No. 4523 of 2013, has been filed by the respondent/wife, under Section 19(1)(a)(c)(e) of the Protection of Women from Domestic Violence Act, 2005, for the following reliefs,

(a) Restraining the respondents 1 to 3, viz., Mr. Ashwant Akula Venkatram and his parents, their men, agents, servants, from in any manner, attempting to disturb the petitioner''s possession of the shared household at 3rd Floor, La Terrazo Apartment, No. 11-B, Ranjith Road, Kotturpuram, Chennai 600 085; and

(b) Restraining the respondents 1 and 2/petitioners herein, from dealing with, alienating or disposing off or renouncing their rights of the shared household at the 3rd Floor, La Terrazo Apartment, No. 11-B, Ranjith Road, Kotturpuram, Chennai 600 085, except with the leave of the Court, pending disposal of the criminal case.

After considering the averments made in M.C. No. 70 of 2013, counter affidavit, evidence and records, vide order, dated 17th March, 2014, in M.P. No. 4523 of 2013, the learned 23rd Metropolitan Magistrate, Saidapet, Chennai-15, has allowed the prayer sought for, and thus, restrained the respondents 1 to 3 therein, and their men, agents, servants, from in any manner, attempting to disturb the wife''s possession of the shared household at 3rd Floor, La Terrazo Apartment, No. 11-B, Ranjith Road, Kotturpuram, Chennai 600 085, till disposal of the main case.

The learned Judge has also passed an order, restraining the respondents 1 and 2/petitioners herein, from alienating or encumbering the shared household, by affecting the residence right of the petitioner, till the disposal of the main case.

Aggrieved by the same, Mrs. Sunitha Venkatram and Mr. Ashwant Akula Venkatram, revision petitioners herein, have filed Appeal Nos. 142 and 144 of 2014, respectively, on the file of the learned IInd Additional City Civil Court, Chennai.

Material on record further discloses that pending appeal, the revision petitioners have filed an affidavit to M.C. No. 70 of 2013, stating that they are residing abroad and hence, they could not appear before the trial Court. They have denied all the allegations made in M.C.O. No. 70 of 2013. Before the lower Court, the respondent/wife has examined herself as PW.1 and marked as many as 15 documents.

The learned 23rd Metropolitan Magistrate, Saidapet, Chennai, observed that though eight months were over from the date of filing of an application, under Section 12 of the Domestic Violence Act, the revision petitioners have neither appeared before the Court nor produced any documents, in support of their case. The learned Magistrate, has ordered as follows:

"1) The first respondent (Revision Petitioner in Crl.R.C. Nos. 184 and 186 of 2015) is restrained for,

(a) Committing any act of domestic violence.

(b) Aiding or abetting in the commission of acts of domestic violence.

(c) Alienating any assets, held by my husband.

(d) Prohibiting her husband, i.e., first respondent from causing violence to her and her family members.

(2) The first respondent (Revision Petitioner in Crl.R.C. Nos. 184 and 186 of 2015), is directed to provide the petitioner her right of residence at La Terrazo Apartments, 11-B, Ranjith Road, Kotturpuram, Chennai-85.

(3) The first respondent (Revision Petitioner in Crl.R.C. Nos. 184 and 186 of 2015) to give petitioner (respondent herein) a sum of Rs. 49,56,04,115/- as compensation."

Being aggrieved by the same, Mrs. Sunitha Venkatram and Mr. Ashwant Akula Venkatram, revision petitioners have filed Crl.A. Nos. 176 and 177 of 2014, respectively. When the abovesaid four appeals were pending, contending inter alia that the learned 2nd Additional Sessions Judge, Chennai/Presiding Officer, has refused the request of the revision petitioners to raise additional grounds, in the criminal appeals and in a pre-determined manner, proposed to pass judgments, in the above criminal appeals, and if the appeals were to be disposed of, by the said Presiding Officer, the revision petitioners would not get fair justice and on the other grounds, Mr. Ashwant Akula Venkatram (Revision Petitioner in Crl.R.C. Nos. 184 and 186 of 2015), husband of the respondent, has filed Crl.M.P. No. 20169 of 2014 and 818 of 2015 in C.A. Nos. 177 and 144 of 2014, under Section 24 of the Code of Civil Procedure, seeking for transfer of the appeals in C.A. Nos. 177 and 144 of 2014, on the file of the learned IInd Additional Judge, City Civil Court, Chennai.

Similarly, Mrs. Sunitha Venkatram (Revision petitioner in Crl.R.C. Nos. 183 and 185 of 2015), W/o. Mr. Venkatram Akula and mother of Mr. Ashawant Akula Venkatram, has filed Crl.M.P. Nos. 816 and 820 of 2015 in C.A. Nos. 142 and 176 of 2014, under Section 408 of Code of Criminal Procedure, seeking transfer of the appeals in C.A. Nos. 142 and 176 of 2014, on the file of the IInd Additional Judge, City Civil Court, Chennai.

On the side of the respondent-wife, objections have been made, stating that elaborate arguments, advanced on behalf of the parties, were heard and reply arguments, advanced on the side of the revision petitioners, were also heard by the learned Presiding Officer and only when the cases were posted for judgment, to frustrate and delay the passing of the orders in the appeal, transfer petitions have been filed. According to the respondent-wife, allegations made against the Presiding Officer, were without any basis or truth.

On the allegations made against the learned 2nd Additional Judge, City Civil Court, Chennai, a report seemed to have been called for, by the Sessions Judge. The Presiding Officer, in his remark, has stated that, "none of their arguments were curtailed by him." He has denied the allegations made against him and stated that it has been made with ulterior motive. However, he has also stated that he has no objection in transferring the appeals to some other Court.

On the allegations made against the Presiding Officer, the learned Principal Sessions Judge, Chennai, has observed as follows:

"Admittedly, after hearing the arguments, the appeals have been reserved for delivery of Judgments on 16.12.2014. Thereafter, on 15.12.2014, transfer petitioner has been filed."

Thereafter, when the revision petitioners relied on the judgments of Madhya Pradesh High Court In Re: District and Sessions Judge Raisen, (2005) 3 JLJ 19 : (2005) 3 MPHT 411 : (2005) 3 MPLJ 26 , Gauhati High Court in Jamuna Devi Vs. District and Sessions Judge and Others, (2007) 1 GLR 560 : (2007) 1 GLT 148 and Kerala High Court in Surendra Kumar Vs. Vijayan, (2005) 4 ILR (Ker) 450 : (2005) 4 KLT 475 , in support of their contention that a Sessions Judge, is empowered to transfer a part-heard case, from the Court of Additional Sessions Judge to other competent Court and also placed reliance on Rattiram and Others Vs. State of M.P., AIR 2012 SC 1485 : (2012) CriLJ 1769 : (2012) 2 Crimes 123 : (2012) 2 SCALE 593 : (2012) AIRSCW 1772 : (2012) AIRSCW 5523 : (2012) 3 Supreme 49 , contending inter alia that the Sessions Judge need not follow any decision, if he is satisfied that the decision is per incuriam, the learned Principal Sessions Judge, Chennai, following a Full Bench decision of this Court in R. Rama Subbarayalu Reddiar Vs. Rengammal, (1962) ILR (Mad) 1001 : (1962) 75 LW 452 : (1962) 2 MLJ 318 , on the aspect of binding effect on the Courts, subordinate to the High Court and taking note of the judgment in Devarasu and 6 Others Vs. The State , held the petitions for transfer are not maintainable. Answering accordingly, all the transfer petitions were dismissed. The Criminal Revision Cases are directed against the orders passed in the transfer petitions.

Mr. S. Prabhakaran, learned counsel for the petitioners submitted that the learned Sessions Judge has failed to consider that the Sessions Judge, can himself take cognizance of a case pending in his sessions division morefully described under the statute. The learned Sessions Judge has also failed to know his own powers regarding to transfer under Section 408 Cr.P.C. and had a doubt about his jurisdiction conferred under Section 408 of Cr.P.C. The learned Sessions Judge has passed an order, contrary to the statute and erred in observing that he does not require to follow any other decisions rendered by other High Courts, even if it is a Full Bench or Division Bench judgment. Ultimately, the learned Sessions Judge has failed to appreciate the law of per incuriam.

Learned counsel for the petitioners further submitted that the order passed by the learned Sessions Judge is against the principles laid down in judgments In Re: District and Sessions Judge Raisen, (2005) 3 JLJ 19 : (2005) 3 MPHT 411 : (2005) 3 MPLJ 26 , Jamuna Devi Vs. District and Sessions Judge and Others, (2007) 1 GLR 560 : (2007) 1 GLT 148 and Ram Rattan vs. Parma NandAIR 1946 51 (Privy Council) , the Hon''ble Mr. S.R. Das, held as follows:

"The cardinal rule of construction of statutes is to read the statutes literally, that is, by giving to the words their ordinary, natural and grammatical meaning. If, however, such a reading leads to absurdity and the words are susceptible of another meaning, the Court may adopt the same. But if no such alternative construction is possible, the Court must adopt the ordinary rule of literal interpretation. In the present case, the literal construction leads to no apparent absurdity and therefore, there can be no compelling reason for departing from that golden rule of construction."

(v) In Poppatlal Shah Vs. The State of Madras, AIR 1953 SC 274 : (1953) CriLJ 1105 : (1953) 4 SCR 677 , the Supreme Court held that, "It is settled rule of construction that to ascertain the legislative intent all the constituent parts of a statute are to be taken together and each word, phrase and sentence is to be considered in the light of the general purpose and object of the Act itself."

(vi) In Rao Shiv Bahadur Singh and Another Vs. The State of Vindhya Pradesh, AIR 1953 SC 394 : (1954) CriLJ 1480 : (1953) 4 SCR 1188 , the Supreme Court held that, "While, no doubt, it is not permissible to supply a clear and obvious lacuna in a statute, and imply a right of appeal, it is incumbent on the Court to avoid a construction, if reasonably permissible on the language, which would render a part of the statute devoid of any meaning or application."

(vii) What is the spirit of law, Hon''ble Mr. Justice S.R. Das in Rananjaya Singh Vs. Baijnath Singh and Others, AIR 1954 SC 749 : (1955) 1 SCR 671 , said that, "The spirit of the law may well be an elusive and unsafe guide and the supposed spirit can certainly not be given effect to in opposition to the plain language of the Sections of the Act."

(viii) In Hari Prasad Shivashanker Shukla v. A.D. Divelkar reported in AIR 1957 SC 121, the Apex Court held that, "It is true that an artificial definition may include a meaning different from or in excess of the ordinary acceptation of the word which is the subject of definition; but there must then be compelling words to show that such a meaning different from or in excess of the ordinary meaning is intended, Where, within the framework of the ordinary acceptation of the word, every single requirement of the definition clause is fulfilled, it would be wrong to take the definition as destroying the essential meaning of the word defined."

(ix) In Kanai Lal Sur Vs. Paramnidhi Sadhukhan, AIR 1957 SC 907 : (1958) 1 SCR 360 , the Supreme Court held that,

"it must always be borne in mind that the first and primary rule of construction is that the intention of the Legislature must be found in the words used by the Legislature itself. If the words used are capable of one construction only then it would not be open to the courts to adopt any other hypothetical construction on the ground that such hypothetical construction is more consistent with the alleged object and policy of the Act.

The words used in the material provisions of the statute must be interpreted in their plain grammatical meaning and it is only when such words are capable of two constructions that the question of giving effect to the policy or object of the Act can legitimately arise. When the material words are capable of two constructions, one of which is likely to defeat or impair the policy of the Act whilst the other construction is likely to assist the achievement of the said policy, then the courts would prefer to adopt the latter construction.

It is only in such cases that it becomes relevant to consider the mischief and defect which the, Act purports to remedy and correct."

(x) In Attorney-General v. HRH Prince Ernest Augustus of Hanover reported in (1957) 1 All.ER 49, Lord Somervell of Harrow has explained the unambiguous, as "unambiguous in context".

(xi) In State of West Bengal Vs. Union of India, AIR 1963 SC 1241 : (1964) 1 SCR 371 , the Apex Court held that in considering the expression used by the Legislature, the Court should have regard to the aim, object and scope of the statute to be read in its entirety.

(xii) In State of Uttar Pradesh Vs. Dr. Vijay Anand Maharaj, AIR 1963 SC 946 : (1962) 45 ITR 414 : (1963) 1 SCR 1 , the Supreme Court held as follows:

"But it is said, relying upon certain passages in Maxwell on the Interpretation of Statutes, at p. 68, and in Crawford on "Statutory Construction'' at p. 492, that it is the duty of the Judge "to make such construction of a statute as shall suppress the mischief and advance the remedy," and for that purpose the more extended meaning could be attributed to the words so as to bring all matters fairly within the scope of such a statute even though outside the letter, if within its spirit or reason. But both Maxwell and Crawford administered a caution in resorting to such a construction. Maxwell says at p.68 of his book:

"The construction must not, of course, be strained to include cases plainly omitted from the natural meaning of the words."

Crawford says that a liberal construction does not justify an extension of the statute''s scope beyond the contemplation of the Legislature.

The fundamental and elementary rule of construction is that the words and phrases used by the Legislature shall be given their ordinary meaning and shall be constructed according to the rules of grammar. When the language is plain and unambiguous and admits of only one meaning, no question of construction of a statute arises, for the Act speaks for itself. It is a well recognized rule of construction that the meaning must be collected from the expressed intention of the Legislature."

(xiii) In Namamal and Others Vs. Radhey Shyam, AIR 1970 Raj 26 : (1969) WLN 1 , the Court held as follows:

"It was observed by Pollock C.B. in Waugh v. Middleton, 1853-8 Ex 352 (356):--"It must, however, be conceded that where the grammatical construction is clear and manifest and without doubt, that construction ought to prevail, unless there be some strong and obvious reason to the contrary. But the rule adverted to is subject to this condition, that however plain the apparent grammatical construction of a sentence may be, if it be properly clear from the contents of the same document that the apparent grammatical construction cannot be the true one, then that which, upon the whole, is the true meaning shall prevail, in spite of the grammatical construction of a particular part of it." And substantially the same opinion is expressed by Lord Selborne in Caledonian Ry, v. North British Ry. (1881) 6 AC 114 (222):-- "The mere literal construction of a statute ought not to prevail if it is opposed to the intentions of the legislature as apparent by the statute, and if the words are sufficiently flexible to admit of some other construction by which, that intention can be better effectuated." Again Lord Fitzgerald in Bradlaugh v. Clarke, (1883) 8 AC 354 at p. 384 observed as follows:--"I apprehend it is a rule in the construction of statutes that in the first instance the grammatical sense of the words is to be adhered to. If that is contrary to, or inconsistent with, any expressed intention or declared purpose of the statutes, or if it would involve any absurdity, repugnance, or inconsistency, the grammatical sense must then be modified, extended, or abridged, so far as to avoid such an inconvenience, but no further." 11. Maxwell in his book on Interpretation of Statutes (11th Edition) at page 226 observes thus:--

"The rule of strict construction, however, whenever invoked, comes attended with qualifications and other rules no less important, and it is by the light which each contributes that the meaning must be determined. Among them is the rule that that sense of the words is to be adopted which best harmonises with the context and promotes in the fullest manner the policy and object of the legislature. The paramount object, in construing penal as well us other statutes, is to ascertain the legislative intent and the rule of strict construction is not violated by permitting the words to have their full meaning, or the more extensive of two meanings, when best effectuating the intention. They are indeed frequently taken in the widest sense, sometimes even in a sense more wide than etymologically belongs or is popularly attached to them, in order to carry out effectually the legislative intent, or, to use Sir Edward Cole''s words, to suppress the mischief and advance the remedy."

(xiv) In Inland Revenue Commissioner v. Joiner reported in (1975) 3 All. ER 1050, it has been held that normally a statutory provision consists of a general description of some factual situation and the legal consequences ensuing from it. Whether the general description is wide or narrow, it will have some limits. The question before a court of law in dealing with a statute is whether the factual situation proved before it falls within the general description given in the statute. A real difficulty in determining the right answer can be said to arise from an "ambiguity" in the statute. It is in this sense that the words, "ambiguity" and "ambiguous" are widely used in judgments.

(xv) In The Commissioner of Sales Tax, U.P. Vs. Mangal Sen Shyam Lal, AIR 1975 SC 1106 : (1975) 4 SCC 35 : (1975) SCR 58 Supp : (1975) 35 STC 621 : (1975) 7 UJ 368 , the Apex Court held that, "A statute is supposed to be an authentic repository of the legislative will and the function of a court is to interpret it "according to the intent of them that made it". From that function the court is. not to resile. It has to abide by the maxim, "ut res magis valeat quam pereat", lest the intention of the legislature may go in vain or be left to evaporate into thin air."

(xvi) In The Commissioner of Income Tax, Madras Vs. T.V. Sundram Iyengar (P) Ltd., (1976) 1 SCC 77 : (1975) SCR 93 Supp , the Supreme Court held that, if the language of the statute is clear and unambiguous and if two interpretations are not reasonably possible, it would be wrong to discard the plain meaning of the words used, in order to meet a possible injustice.

(xvii) If the words are precise and unambiguous, then it should be accepted, as declaring the express intention of the legislature. In Km. Sonia Bhatia Vs. State of U.P. and Others, AIR 1981 SC 1274 : (1981) 1 SCALE 491 : (1981) 2 SCC 585 : (1981) 3 SCR 239 : (1981) 13 UJ 521 , the Supreme Court held that a legislature does not waste words, without any intention and every word that is used by the legislature must be given its due import and significance.

(xviii) In Philips India Ltd. Vs. Labour Court, Madras and Others, AIR 1985 SC 1034 : (1985) 2 CompLJ 162 : (1985) 50 FLR 477 : (1985) 2 LLJ 33 : (1985) 1 SCALE 592 : (1985) 3 SCC 103 : (1985) 3 SCR 491 : (1985) 17 UJ 542 , the Apex Court, at Paragraph 15, held as follows:

"(15) No cannon of statutory construction is more firmly, established than that the statute must be read as a whole. This is a general rule of construction applicable to all statutes alike which is spoken of as construction ex visceribus actus. This rule of statutory construction is so firmly established that it is variously styled as ''elementary rule'' (See Attorney General v. Bastow [(1957) 1 All.ER 497 ]) and as a ''settled rule'' (See Poppatlal Shah Vs. The State of Madras, AIR 1953 SC 274 : (1953) CriLJ 1105 : (1953) 4 SCR 677 ). The only recognised exception to this well-laid principle is that it cannot be called in aid to alter the meaning of what is of itself clear and explicit. Lord Coke laid down that: ''it is the most natural and genuine exposition of a statute, to construe one part of a statute by another part of the same statute, for that best expressed meaning of the makers'' (Quoted with approval in Punjab Beverages Pvt. Ltd., Chandigarh Vs. Suresh Chand and Another, AIR 1978 SC 995 : (1978) 36 FLR 383 : (1978) LabIC 693 : (1978) 2 LLJ 1 : (1978) 2 SCC 144 : (1978) 3 SCR 370 )."

(xix) In Nyadar Singh Vs. Union of India (UOI) and Others, AIR 1988 SC 1979 : (1988) 3 JT 448 : (1988) 2 LLJ 506 : (1988) 2 SCALE 409 : (1988) 4 SCC 170 : (1988) 2 SCR 546 Supp : (1989) 1 SLJ 1 : (1988) 2 UJ 644 , observed that ambiguity need not necessarily be a grammatical ambiguity, but one of the appropriateness of the meaning in a particular context.

(xx) It is a well settled law of interpretation that "when the words of the statute are clear, plain or unambiguous, i.e., they are reasonably susceptible to only one meaning, the Courts are bound to give effect to that meaning irrespective of consequences. Reference can be made to the decision of the Apex Court in Nelson Motis Vs. Union of India and another, AIR 1992 SC 1981 : (1992) 65 FLR 853 : (1992) 5 JT 511 : (1992) LabIC 2037 : (1992) 2 LLJ 744 : (1992) 2 SCALE 476 : (1992) 4 SCC 711 : (1992) 1 SCR 325 Supp : (1992) 3 SLJ 65 .

(xxi) In M/s. Oswal Agro Mills Ltd. Vs. Collector of Central Excise and others etc. etc., AIR 1993 SC 2288 : (1993) 66 ELT 37 : (1993) 3 JT 260 : (1993) 2 SCALE 660 : (1993) 3 SCC 716 Supp : (1993) 3 SCR 378 , the Apex Court held that, where the words of the statute are plain and clear, there is no room for applying any of the principles of interpretation, which are merely presumption in cases of ambiguity in the statute. The Court would interpret them as they stand.

(xxii) In Nasiruddin and Others Vs. Sita Ram Agarwal, AIR 2003 SC 1543 : (2003) 4 CTC 284 : (2003) 2 JT 56 : (2003) 1 SCALE 658 : (2003) 2 SCC 577 : (2003) 1 SCR 634 : (2003) 2 UJ 781 : (2003) AIRSCW 1474 : (2003) AIRSCW 908 : (2003) 2 Supreme 472 : (2003) 2 Supreme 50 , the Supreme Court held as follows:

"35. In a case where the statutory provision is plain and unambiguous, the court shall not interpret the same in a different manner, only because of harsh consequences arising therefrom....

The court''s jurisdiction to interpret a statute can be invoked when the same is ambiguous. It is well known that in a given case the court can iron out the fabric but it cannot change the texture of the fabric. It cannot enlarge the scope of legislation or intention when the language of the provision is plain and unambiguous. It cannot add or subtract words to a statute or read something into it which is not there. It cannot rewrite or recast legislation. It is also necessary to determine that there exists a presumption that the legislature has not used any superfluous words. It is well settled that the real intention of the legislation must be gathered from the language used....... But the intention of the legislature must be found out from the scheme of the Act."

(xxiii) In Indian Dental Association and Another Vs. Union of India (UOI) and Others, (2003) ILR (Kar) 4564 : (2004) 1 KarLJ 282 , the Court held that, "The cardinal rule for the construction of Acts of Parliament is that they should be construed according to the intention expressed in the Acts themselves. The object of all interpretation is to discover the intention of Parliament, "but the intention of Parliament must be deduced from the language used", for it is well-accepted that the beliefs and assumptions of those who frame Acts of Parliament cannot make the law. If the words of the statute are themselves precise and unambiguous, then no more can be necessary than to expound those words in their ordinary and natural sense. Where the language of an Act is clear and explicit, the Court must give effect to it, whatever may be the consequences, for in that case the words of the statute speak the intention of the Legislature. Where the language is plain and admits of but one meaning, the task of interpretation can hardly be said to arise. The decision in a case calls for a full and fair application of particular statutory language to particular facts as found. It is a corollary to the general rule of literal construction that nothing is to be added to or taken from a statute unless there are adequate grounds to justify the inference that the Legislature intended something which it omitted to express. A construction which would leave without effect any part of the language of a statute will normally be rejected."

(xxiv) In State of Jharkhand and Another Vs. Govind Singh, (2004) 10 SCALE 174 : (2005) 10 SCC 437 , the Supreme Court held that,

"12. It is said that a statute is an edict of the legislature. The elementary principle of interpreting or construing a statute is to gather the mens or sentential legis of the legislature.

Interpretation postulates the search for the true meaning of the words used in the statute as a medium of expression to communicate a particular thought. The task is not easy as the "language" is often misunderstood even in ordinary conversation or correspondence. The tragedy is that although in the matter of correspondence or conversation the person who has spoken the words or used the language can be approached for clarification, the legislature cannot be approached as the legislature, after enacting a law or Act, becomes functus officio so far as that particular Act is concerned and it cannot itself interpret it. No doubt, the legislature retains the power to amend or repeal the law so made and can also declare its meaning, but that can be done only by making another law or statute after undertaking the whole process of law-making.

Statute being an edict of the legislature, it is necessary that it is expressed in clear and unambiguous language.....

Where, however, the words were clear, there is no obscurity, there is no ambiguity and the intention of the legislature is clearly conveyed, there is no scope for the court to innovate or take upon itself the task of amending or altering the statutory provisions. In that situation the judges should not proclaim that they are playing the role of a lawmaker merely for an exhibition of judicial velour. They have to remember that there is a line, though thin, which separates adjudication from legislation. That line should not be crossed or erased. This can be vouchsafed by "an alert recognition of the necessity not to cross it and instinctive, as well as trained reluctance to do so". (See Frankfurter: "Some Reflections on the Reading of Statutes" in Essays on Jurisprudence, Columbia Law Review, p. 51.)

It is true that this Court in interpreting the Constitution enjoys a freedom which is not available in interpreting a statute and, therefore, it will be useful at this stage to reproduce what Lord Diplock said in Duport Steels Ltd. v. Sirs [(1980 (1) All.ER 529] (All ER at p. 542c-d) :

"It endangers continued public confidence in the political impartiality of the judiciary, which is essential to the continuance of the rule of law, if judges, under the guise of interpretation, provide their own preferred amendments to statutes which experience of their operation has shown to have had consequences that members of the court before whom the matter comes consider to be injurious to the public interest.

In D.R. Venkatachalam and Others Vs. Dy. Transport Commissioner and Others, AIR 1977 SC 842 : (1977) 2 SCC 273 : (1977) 2 SCR 392 it was observed that courts must avoid the danger of a priori determination of the meaning of a provision based on their own preconceived notions of ideological structure or scheme into which the provision to be interpreted is somewhat fitted. They are not entitled to usurp legislative function under the disguise of interpretation."

(xxv) In Vemareddy Kumaraswamy Reddy and Another Vs. State of A.P., AIR 2006 SC 3517 : (2006) 2 JT 361 : (2006) 2 SCALE 314 : (2006) 2 SCC 670 : (2006) AIRSCW 894 : (2006) 2 Supreme 124 , the Supreme Court held that,

"12. It is said that a statute is an edict of the legislature. The elementary principle of interpreting or construing a statute is to gather the mens or sententia legis of the legislature. It is well-settled principle in law that the court cannot read anything into a statutory provision which is plain and unambiguous."

(xxvi) In A.N. Roy, Commissioner of Police and Another Vs. Suresh Sham Singh, AIR 2006 SC 2677 : (2006) CriLJ 3614 : (2006) 6 JT 89 : (2006) 6 SCALE 446 : (2006) 5 SCC 745 : (2006) 3 SCR 165 Supp : (2006) 2 UJ 917 : (2006) AIRSCW 3522 : (2006) 5 Supreme 171 , the Apex Court held that,

"It is now well settled principle of law that, the Court cannot change the scope of legislation or intention, when the language of the statute is plain and unambiguous. Narrow and pedantic construction may not always be given effect to. Courts should avoid a construction, which would reduce the legislation to futility. It is also well settled that every statute is to be interpreted without any violence to its language. It is also trite that when an expression is capable of more than one meaning, the Court would attempt to resolve the ambiguity in a manner consistent with the purpose of the provision, having regard to the great consequences of the alternative constructions."

(xxvii) In Adamji Lookmanji and Co. and Others Vs. State of Maharashtra and Another, AIR 2007 Bom 56 : (2007) 1 ALLMR 785 : (2007) 3 BomCR 447 , the Bombay High Court held that, when the words of status are clear, plain or unambiguous, and reasonably susceptible to only meaning, Courts are bound to give effect to that meaning irrespective of the consequences. The intention of the legislature is primarily to be gathered from the language used. Attention should be paid to what has been said in the statute, as also to what has not been said.

(xxviii) In State of Haryana Vs. Suresh, AIR 2007 SC 2245 : (2007) 8 JT 629 : (2007) 8 SCALE 441 : (2007) 7 SCR 961 : (2007) AIRSCW 3921 : (2007) 5 Supreme 169 , the Supreme Court held that, "One of the basic principles of Interpretation of Statutes is to construe them according to plain, literal and grammatical meaning of the words. If that is contrary, to or inconsistent with any express intention or declared purpose of the Statute, or if it would involve any absurdity, repugnancy or inconsistency, the grammatical sense must then be modified, extended or abridged, so far as to avoid such an inconvenience, but no further. The onus of showing that the words do not mean what they say lies heavily on the party who alleges it must advance something which clearly shows that the grammatical construction would be repugnant to the intention of the Act or lead to some manifest absurdity."

(xxix) In Visitor and Others Vs. K.S. Misra, (2007) 115 FLR 353 : (2007) 11 SCALE 5 : (2007) 8 SCC 593 : (2007) 2 SCC(L&S) 959 : (2007) 10 SCR 763 : (2008) 1 SLJ 381 : (2007) AIRSCW 5706 : (2007) 6 Supreme 107 , the Supreme Court held that, "It is well settled principle of interpretation of the statute that it is incumbent upon the Court to avoid a construction, if reasonably permissible on the language, which will render a part of the statute devoid of any meaning or application. The Courts always presume that the legislature inserted every part thereof for a purpose and the legislative intent is that every of the statute should have effect. The legislature is deemed not to waste its words or to say anything in vain and a construction which attributes redundancy to the legislature will not be accepted except for compelling reasons. It is not a sound principle of construction to brush aside words in a statute as being in apposite surplusage, if they can have appropriate application in circumstances conceivably within the contemplation of the statute."

(xxx) In Gujarat Urja Vikash Nigam Ltd. Vs. Essar Power Ltd., AIR 2008 SC 1921 : (2008) 2 ARBLR 1 : (2008) 1 CLT 841 : (2008) 2 CompLJ 357 : (2008) 4 CTC 539 : (2008) ELR 1 : (2008) 3 JT 336 : (2008) 4 SCC 755 : (2008) 1 UJ 467 : (2008) AIRSCW 2169 , the Supreme Court, at Paragraphs 52, 54, 55 and 56, held as follows:

"52. No doubt ordinarily the literal rule of interpretation should be followed, and hence the court should neither add nor delete words in a statute. However, in exceptional cases this can be done where not doing so would deprive certain existing words in a statute of all meaning, or some part of the statute may become absurd."

(xxxi) In Phool Patti and Another Vs. Ram Singh (Dead) through Lrs. and Another, (2009) 5 JT 376 : (2009) 4 SCALE 694 : (2009) 13 SCC 22 : (2009) 5 SCR 362 : (2009) AIRSCW 3924 : (2009) AIRSCW 5536 , the Supreme Court held that,

"9. It is a well-settled principle of interpretation that the court cannot add words to the statute or change its language, particularly when on a plain reading the meaning seems to be clear."

(xxxii) In Md. Shahabuddin Vs. State of Bihar and Others, (2010) 2 Crimes 95 : (2010) 3 JT 266 : (2010) 2 SCALE 204 : (2010) 4 SCC 653 : (2010) 3 SCR 911 : (2010) 3 UJ 1433 : (2010) AIRSCW 3211 : (2010) 2 Supreme 562 , the Supreme Court held that,

"179. Even otherwise, it is a well-settled principle in law that the court cannot read anything into a statutory provision which is plain and unambiguous. The language employed in a statute is a determinative factor of the legislative intent. If the language of the enactment is clear and unambiguous, it would not be proper for the courts to add any words thereto and evolve some legislative intent, not found in the statute. Reference in this regard may be made to a recent decision of this Court in Ansal Properties and Industries Ltd. Vs. State of Haryana and Another, (2009) 4 JT 174 : (2009) 2 SCALE 140 : (2009) 3 SCC 553 : (2009) 1 SCR 553 .

Further, it is a well-established principle of statutory interpretation that the legislature is specially precise and careful in its choice of language. Thus, if a statutory provision is enacted by the legislature, which prescribes a condition at one place but not at some other place in the same provision, the only reasonable interpretation which can be resorted to by the courts is that such was the intention of the legislature and that the provision was consciously enacted in that manner. In such cases, it will be wrong to presume that such omission was inadvertent or that by incorporating the condition at one place in the provision the legislature also intended the condition to be applied at some other place in that provision."

(xxxiii) In Satheedevi Vs. Prasanna and Another, AIR 2010 SC 2777 : (2010) 5 JT 118 : (2010) 5 SCALE 164 : (2010) 6 UJ 2782 , the Supreme Court held as follows:

"12. Before proceeding further, we may notice two well-recognised rules of interpretation of statutes. The first and primary rule of construction is that the intention of the legislature must be found in the words used by the legislature itself. If the words used are capable of one construction, only then it would not be open to the courts to adopt any other hypothetical construction on the ground that such hypothetical construction is more consistent with the alleged object and policy of the Act. The words used in the material provisions of the statute must be interpreted in their plain grammatical meaning and it is only when such words are capable of two constructions that the question of giving effect to the policy or object of the Act can legitimately arise-- Kanai Lal Sur Vs. Paramnidhi Sadhukhan, AIR 1957 SC 907 : (1958) 1 SCR 360 .

The other important rule of interpretation is that the court cannot rewrite, recast or reframe the legislation because it has no power to do so. The court cannot add words to a statute or read words which are not there in it. Even if there is a defect or an omission in the statute, the court cannot correct the defect or supply the omission - Union of India and another Vs. Deoki Nandan Aggarwal, AIR 1992 SC 96 : (1991) 3 JT 608 : (1991) 2 SCALE 481 : (1992) 1 SCC 323 Supp : (1991) 3 SCR 873 and Smt. Shyam Kishori Devi Vs. Patna Municipal Corporation and Another, AIR 1966 SC 1678 : (1966) 3 SCR 466

(xxxiv) In Sri Jeyaram Educational Trust and Others Vs. A.G. Syed Mohideen and Others, AIR 2010 SC 671 : (2010) 109 CLT 452 : (2010) 1 JT 391 : (2010) 1 SCALE 561 : (2010) 2 SCC 513 : (2010) 2 SCR 1127 : (2010) 2 UJ 639 : (2010) AIRSCW 871 : (2010) 1 Supreme 378 , it is held that,

"6. It is now well settled that a provision of a statute should have to be read as it is, in a natural manner, plain and straight, without adding, substituting or omitting any words. While doing so, the words used in the provision should be assigned and ascribed their natural, ordinary or popular meaning. Only when such plain and straight reading, or ascribing the natural and normal meaning to the words on such reading, leads to ambiguity, vagueness, uncertainty, or absurdity which were not obviously intended by the Legislature or the Lawmaker, a court should open its interpretation tool kit containing the settled rules of construction and interpretation, to arrive at the true meaning of the provision. While using the tools of interpretation, the court should remember that it is not the author of the Statute who is empowered to amend, substitute or delete, so as to change the structure and contents. A court as an interpreter cannot alter or amend the law. It can only interpret the provision, to make it meaningful and workable so as to achieve the legislative object, when there is vagueness, ambiguity or absurdity. The purpose of interpretation is not to make a provision what the Judge thinks it should be, but to make it what the legislature intended it to be."

(xxxv) In Delhi Airtech Services Pvt. Ltd. and Another Vs. State of U.P. and Another, (2011) 9 JT 440 : (2011) 9 SCALE 201 , the Supreme Court, while dealing with a provision under Section 17(3-A) of the Act, held that,

"Therefore, the provision of Section 17(3-A) cannot be viewed in isolation as it is an intrinsic and mandatory step in exercising special powers in cases of emergency. Sections 17(1) and 17(2) and 17(3-A) must be read together. Sections 17(1) and 17(2) cannot be worked out in isolation.

It is well settled as a canon of construction that a statute has to be read as a whole and in its context. In Attorney General v. Prince Ernest Augustus of Hanover [1957 AC 436], Lord Viscount Simonds very elegantly stated the principle that it is the duty of court to examine every word of a statute in its context. The learned Law Lord further said that in understanding the meaning of the provision, the Court must take into consideration "not only other enacting provisions of the same statute, but its preamble, the existing state of the law, other statutes in pari materia, and the mischief which I can, by those and other legitimate means, discern that the statute was intended to remedy." (All ER p. 53 I)

These principles have been followed by this Court in its Constitution Bench decision in Union of India (UOI) Vs. Sankalchand Himatlal Sheth and Another, AIR 1977 SC 2328 : (1977) LabIC 1857 : (1977) 4 SCC 193 : (1978) 1 SCR 423 . At SCC p. 240, Bhagwati, J. as His Lordship then was, in a concurring opinion held that words in a statute cannot be read in isolation, their colour and content are derived from their context and every word in a statute is to be examined in its context. His Lordship explained that the word context has to be taken in its widest sense and expressly quoted the formulations of Lord Viscount Simonds, set out above.

If the intention of the legislature is to confer powers on the Sessions Judge, to transfer a case or appeal from one Criminal Court to another Criminal Court, including the Court of Additional District Judge, exercising equal jurisdiction, then the Legislature could have simply omitted the word "lower" in the opening sentence of the words in sub-Section (2) of Section 408 of the Criminal Procedure Code. After deletion of the word, "lower" and if sub-Sections (1) and (2) are joined together, the Section would be read as follows:

"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 in particular case be transferred from one criminal Court to another criminal Court in his sessions division, either on the report of the Criminal Court, on the application of the party interested, or on his own initiative."

Power is conferred on the Sessions Judge in Sub-Section (1) of Section 408 Cr.P.C., to transfer a case from one Criminal Court to another Criminal Court, in the same Sessions Division and such power can be exercised, only for the reasons, stated in sub-Section (2) of Section 408. If the Sessions Judge, deems it expedient for the ends of Justice, to transfer any particular case, from one Criminal Court to another Criminal Court, in his Sessions Division, either on the report of the lower Court or on the application of the party interested or on his own initiative and if the words, "criminal Court" have to be meant to be inclusive of an Additional Sessions Court also, then the Section 408, has to be read, as conferring powers on the Sessions Judge, to withdraw any case, even after the commencement of the trial of a case. Notwithstanding the decision in Devarasu''s case (cited supra), I have made an attempt to find out the legislative intent, in Section 408 Cr.P.C. Let me consider few decisions, as to how, a Section has to be read and interpreted.

(i) In Shamarao V. Parulekar Vs. The District Magistrate, Thana, Bombay and Others, AIR 1952 SC 324 : (1952) CriLJ 1503 : (1952) 1 SCR 683 , the Apex Court held that, "It is the duty of the Courts to give effect to the meaning of an Act, when the meaning can be fairly gathered from the words used, that is to say, if one construction will lead to an absurdity while another will give effect to what common sense would show was obviously intended, the construction which would defeat the ends of the Act, must be rejected even if the same words used in the same section, and even the same sentence, have to be construed differently. Indeed the law goes so far as to require the Courts sometimes even to modify the grammatical and ordinary sense of the words if by doing so absurdity and inconsistency can be avoided."

(ii) It is well settled that a statute must be read as a whole and one provision of the Act should be construed with reference to other provisions in the same Act, so as to make a consistent enactment of the whole statute. Such a construction has the merit of avoiding any inconsistency or repugnancy either within the statute or between a Section or other parts of the statute. [Ref. Raj Krushna Bose Vs. Binod Kanungo and Others, AIR 1954 SC 202 : (1954) 1 SCR 913 ].

(iii) In Rananjaya Singh Vs. Baijnath Singh and Others, AIR 1954 SC 749 : (1955) 1 SCR 671 , the Apex Court held that, "The spirit of law may well be an illusive and unsafe guide in the interpretation of the statutes and the supposed spirit can certainly not be given effect to in opposition to the plain language of the sections of the Act, and the rules made thereunder. If all that can be said of these statutory provisions is that construed according to the ordinary, grammatical and natural meaning of their language they work injustice, the appeal must be made to the Parliament and not to the Supreme Court."

(iv) In The State of Bihar Vs. Hiralal Kejriwal and Another, AIR 1960 SC 47 : (1960) CriLJ 150 : (1960) 1 SCR 726 , the Supreme Court, at Paragraph 6, held that,

"To ascertain the meaning of a section it is not permissible to omit any part of it: the whole section should be read together and an attempt should be made to reconcile both the parts....... The first part gives life to that Order, and, therefore, the acts authorised under that Order can be done subsequent to the coming into force of the Ordinance....... The second part appears to have been enacted for the purpose of avoiding this difficulty or, at any rate, to dispel the ambiguity."

(v) In Sardar Gurmej Singh Vs. Sardar Partap Singh Kairon, AIR 1960 SC 122 : (1960) 1 SCR 909 , the Supreme Court, at Paragraph 9, held as follows:

"It is an elementary rule that construction of a section is to be made of all the parts together and not of one part only by itself, and that phrases are to be construed according to the rules of grammar."

(vi) In A.R. Antulay Vs. Ramdas Sriniwas Nayak and Another, AIR 1984 SC 718 : (1984) CriLJ 647 : (1984) 1 Crimes 547 : (1984) 1 SCALE 239 : (1984) 2 SCC 500 : (1984) 2 SCR 914 , the Supreme Court held that, "It is a well established cannon of construction that the court should read the section as it is and cannot rewrite it to suit its convenience; nor does any cannon of construction permit the court to read the section in such manner as to render it to some extent otiose."

(vii) In Balasinor Nagrik Cooperative Bank Ltd. Vs. Babubhai Shankerlal Pandya and Others, AIR 1987 SC 849 : (1987) 1 JT 462 : (1987) 1 SCALE 348 : (1987) 1 SCC 606 : (1987) 1 UJ 379 , the Supreme Court, at Paragraph 4, held as follows:

"It is an elementary rule that construction of a section is to be made of all parts together. It is not permissible to omit any part of it. For, the principle that the statute must be read as a whole is equally applicable to different parts of the same section........ It also provides for the manner of the exercise of such power........... Sub-section (1) of Section 36 is made subject to the fulfilment of the conditions prerequisite,"

(viii) In Balasinor Nagrik Co-operative Bank''s case (cited supra), the Apex Court held that precise functions of the two provisos to a Section has to be read together. The Supreme Court held that sub-Section (1) of Section 36 is made subject to defeasance clause engrafted in the first provision. If the guiding principle enunciated in Balasinor Nagrik Co-operative Bank''s case (cited supra), is applied to Section 408 Cr.P.C., then it would certainly convey that the Sessions Judge can transfer only a case from a lower Court and not from a Court of equal jurisdiction.

(ix) In Tamil Nadu State Electricity Board Vs. Central Electricity Regulatory Commission and Others, AIR 2007 SC 1711 : (2007) ELR 1155 : (2007) 6 JT 74 : (2007) 6 SCALE 26 : (2007) 6 SCR 416 : (2007) 1 UJ 575 : (2007) AIRSCW 2699 , the Supreme Court held that, "Resort can be had to the legislative intent for the purpose of interpreting a provision of law, when the language employed by the legislature is doubtful or susceptible of meanings more than one. However, when the language is plain and explicit and does not admit of any doubtful interpretation, the Supreme Court cannot, by reference to an assumed legislative intent expand the meaning of an expression employed by the legislature and therein include such category of persons as the legislature has not chosen to do."

(x) In Ansal Properties and Industries Ltd. Vs. State of Haryana and Another, (2009) 4 JT 174 : (2009) 2 SCALE 140 : (2009) 3 SCC 553 : (2009) 1 SCR 553 , the Supreme Court held that,

"It is a well-settled principle in law that the court cannot read anything into a statutory provision which is plain and unambiguous. The language employed in a statute is determinative factor of legislative intent. If the language of the enactment is clear and unambiguous, it would not be proper for the courts to add any words thereto and evolve some legislative intent, not found in the statute.

In Dr Ganga Prasad Verma and Others Vs. State of Bihar and Others, (1995) 1 SCC 192 Supp : (1995) 1 SCC 192 : (1994) 5 SCR 455 Supp , it has been held that: (SCC p. 195, para 5)

"5. Where the language of the Act is clear and explicit, the court must give effect to it, whatever may be the consequences, for in that case the words of the statute speak the intention of the legislature."

As per Section (2) of Section 409, a Sessions Judge may withdraw, trial of a case or hearing of an appeal, from the file of the Additional Sessions Judge, only before the commencement of the trial of a case or hearing of an appeal. Now it is the case of the petitioners that the Sessions Judge, in exercise of the his powers, under Section 408 Cr.P.C., can transfer a case or an appeal, even after the commencement of trial or hearing of an appeal, on the application of a party interested, if it is expedient for the ends of justice. If the principle, what cannot be done directly by the Sessions Judge, in exercise of his administrative powers, under Section 409(2) Cr.P.C., cannot also be done indirectly by the Sessions Judge, under Section 408 Cr.P.C., is applied, then the Sessions Judge, cannot transfer the trial of a case or hearing of an appeal, from one Additional Sessions Judge, to another, within his Sessions Division. At Paragraph 25 of the judgment in Noida Entrepreneurs Association Vs. NOIDA and Others, AIR 2011 SC 2112 : (2011) 6 JT 223 : (2011) 5 SCALE 505 : (2011) 6 SCC 508 : (2011) 8 SCR 25 : (2011) AIRSCW 5014 : (2011) AIRSCW 3154 , the Supreme Court held as follows:

"22. It is a settled proposition of law that whatever is prohibited by law to be done, cannot legally be affected by an indirect and circuitous contrivance on the principle of "quando aliquid prohibetur, prohibetur at omne per quod devenitur ad illud", which means" "whenever a thing is prohibited, it is prohibited whether done directly or indirectly". (See: Swantraj and Others Vs. State of Maharashtra, AIR 1974 SC 517 : (1974) CriLJ 472 : (1975) 3 SCC 322 : (1974) SCC(Cri) 930 : (1974) 3 SCR 287 ; Commissioner of Central Excise, Pondicherry Vs. ACER India Ltd., (2004) 96 ECC 313 : (2004) 172 ELT 289 : (2004) 8 JT 53 : (2004) 8 SCALE 169 : (2004) 8 SCC 173 : (2004) 137 STC 596 ; and Sant Lal Gupta and Others Vs. Modern Co-operative Group Housing Society Ltd. and Others, (2010) 11 JT 273 : (2010) 11 SCALE 27 : (2010) 13 SCC 336 : (2010) 9 UJ 4781 : (2011) AIRSCW 31 : (2010) AIRSCW 7184 : (2010) 6 Supreme 795 ).

At Paragraph 26 in Noida Entrepreneurs Association''s case (cited supra), the Apex Court, further held that,

"23. In Jagir Singh Vs. Ranbir Singh and Another, AIR 1979 SC 381 : (1979) CriLJ 318 : (1979) 81 PLR 205 : (1979) 1 SCC 560 : (1979) SCC(Cri) 348 : (1979) 2 SCR 282 , this Court has observed that an authority cannot be permitted to evade a law by "shift or contrivance." While deciding the said case, the Court placed reliance on the judgment in Fox v. Bishop of Chester, (1824) 2 B &C 635, wherein it has been observed as under:-

"To carry out effectually the object of a statute, it must be construed as to defeat all attempts to do, or avoid doing in an indirect or circuitous manner that which it has prohibited or enjoined."

In Cine Exhibition Pvt. Ltd. Vs. Collector, District Gwalior and Others, (2013) 3 AD 431 : AIR 2013 SC 3669 : (2013) 2 RCR(Civil) 200 : (2013) 1 SCALE 317 : (2013) 2 SCC 698 : (2013) 2 SCC(L&S) 437 : (2013) AIRSCW 3790 : (2013) AIRSCW 4859 : (2013) 1 Supreme 252 of the judgment, it was observed by the Apex Court that what cannot be done directly, cannot be permitted to be done indirectly. The same principle quoted in M/s. Priyanka Overseas Pvt. Ltd. and another Vs. Union of India and others, AIR 1991 SC 583 : (1990) 3 CompLJ 3 : (1991) 32 ECC 189 : (1991) 51 ELT 185 : (1990) 4 JT 490 : (1990) 2 SCALE 1028 : (1991) 1 SCC 102 Supp : (1990) 3 SCR 138 Supp ; K.K. John Vs. State of Goa, (2003) 3 ARBLR 325 : (2003) 2 JT 197 Supp : (2003) 8 SCALE 82 : (2003) 8 SCC 193 : (2003) 48 SCL 67 : (2003) 3 SCR 937 Supp : (2004) 1 UJ 391 ; State of Punjab v. Devans Modern Breweries reported in 2004 (11) SCC 40 ; Zahira Habibullah Sheikh and Another etc. Vs. State of Gujarat and Others etc., AIR 2004 SC 3467 : (2004) CriLJ 2855 : (2004) 5 SCALE 397 : (2004) 5 SCC 353 : (2004) 3 SCR 571 Supp : (2004) 2 UJ 1491 ; Ram Chandra Singh Vs. Savitri Devi and Others, AIR 2004 SC 4096 : (2004) 97 CLT 426 : (2004) 172 ELT 446 : (2004) 6 JT 93 : (2004) 6 SCALE 327 : (2004) 12 SCC 713 : (2004) 2 UJ 1526 : (2004) AIRSCW 4454 : (2004) 5 Supreme 705 ; Sangramsinh P. Gaekwad and Others Vs. Shantadevi P. Gaekwad (Dead) thr. Lrs. and Others, AIR 2005 SC 809 : (2005) 123 CompCas 566 : (2005) 3 CompLJ 385 : (2005) 1 JT 581 : (2005) 11 SCC 314 : (2005) 57 SCL 476 : (2005) 2 SCR 624 : (2005) 1 UJ 284 ; Ramdev Food Products Pvt. Ltd. Vs. Arvindbhai Rambhai Patel and Others, AIR 2006 SC 3304 : (2006) 8 JT 393 : (2006) 33 PTC 281 : (2006) 8 SCALE 631 : (2006) 8 SCC 726 : (2006) AIRSCW 4988 : (2006) 7 Supreme 224 ; State of Haryana and Others Vs. M.P. Mohla, (2006) 11 SCALE 658 : (2007) 1 SCC 457 : (2007) 1 SCC(L&S) 303 : (2006) 9 SCR 926 Supp ; Shiv Kumar Sharma Vs. Santosh Kumari, AIR 2008 SC 171 : (2007) 5 CTC 453 : (2008) 1 CTLJ 108 : (2007) 11 JT 260 : (2008) 149 PLR 186 : (2007) 11 SCALE 303 : (2007) 8 SCC 600 : (2007) 10 SCR 17 : (2007) AIRSCW 6384 : (2007) 6 Supreme 347 ; Subhash Chandra and Another Vs. Delhi Subordinate Services Selection Board and Others, (2009) 10 JT 615 : (2009) 11 SCALE 278 : (2009) 15 SCC 458 : (2009) 13 SCR 978 : (2010) 2 SLJ 22 : (2009) 8 UJ 3783 and Rashmi Rekha Thatoi and Another Vs. State of Orissa and Others, (2012) 2 RCR(Criminal) 870 : (2012) 5 SCALE 123 : (2012) 5 SCC 690 . But the question to be considered is, what is the effect of the expression, "expedient for the ends of justice", in sub-Section (1) of Section 408 Cr.P.C., and the words, "on the report of the lower Court" in sub-Section (2) of Section 408.

A combined reading of sub-Section (1) and the opening sentence of Sub-Section (2) of Section 408 Cr.P.C., states that "any particular case", can be transferred from one Criminal Court to another Criminal Court, in his Sessions Division, on the report of the lower Court, which means, a report is necessarily required from a lower Court. Present revision cases have been filed challenging the dismissal of the petitions filed to transfer the appeals, pending on the file of the 2nd Additional Sessions Judge, Chennai, to some other Court of competent jurisdiction and not any case.

In Section 408 Cr.P.C., the Legislature has used the words, "any particular case", from one Criminal Court to another Criminal Court, in his Sessions Division and whereas, in Section 409 Cr.P.C., when the Sessions Judge, exercises the administrative power, the words, "any case or appeal", are employed. Thus, there is an inbuilt restraint in Section 409(2) Cr.P.C., in exercise of the power conferred on the Sessions Judge and he cannot recall or withdraw any case or appeal, after the commencement of the trial or hearing of an appeal, pending before the Additional Sessions Judge and that is why, the Legislature is cautious in stating that such power can be exercised, at any time, before the trial of the case or hearing of the appeal.

The expression "any particular case" used in Section 408(1) Cr.P.C., should be given its natural meaning and effect. Hon''ble Justice Lahoti, in Harbhajan Singh Vs. Press Council of India and Others, AIR 2002 SC 1351 : (2002) 3 JT 21 : (2002) 2 SCALE 605 : (2002) 3 SCC 722 : (2002) 2 SCR 369 : (2002) AIRSCW 1178 : (2002) 2 Supreme 368 , observed as follows:

"Legislature chooses appropriate words to express what it intends, and therefore, must be attributed with such intention as is conveyed by the words employed so long as this does not result in absurdity or anomaly or unless material - intrinsic or external - is available to permit a departure from the rule."

The words "criminal Court" in Sub-Section (1) of Section 408 Cr.P.C., must be read in the context in which it is explained in sub-Section (2) of the same Section, i.e., lower Court and in such circumstances, it can comprehend that, that the words, Criminal Court, refers only to a lower Court and not to a Court of equal jurisdiction. Though the words "Criminal Court" at the first blush, may appear to mean all the criminal Courts, within the Sessions Division of a Sessions Judge, but a close scrutiny of sub-Section (2) of Section 408 Cr.P.C., would make it clear that there is no obscurity and vagueness.

Let me consider some of the decisions, as to how, a Section has to be read and interpreted in the context, in which, it is used.

(i) In D.N. Banerji Vs. P.R. Mukherjee and Others, AIR 1953 SC 58 : (1953) 4 SCR 302 , the Supreme Court held that the same word may mean one thing in one context and another in a different context.

(ii) In the case of Reserve Bank of India Vs. Peerless General Finance and Investment Co. Ltd. and Others, (1987) 1 SCALE 100 : (1987) 1 SCC 424 : (1987) 2 SCR 1 : (1987) 1 UJ 586 , the apex Court held:

"Interpretation must depend on the text and the context. They are the bases of interpretation. One may well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it was enacted. With this knowledge, the statute must be read, first as a whole and then section by section, clause by clause, phrase by phrase and word by word. If a statute is looked at, in the context of its enactment, with the glasses of the statute-maker, provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by the context. With these glasses we must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act. No part of a statute and no word of a statute can be construed in isolation. Statutes have to be construed so that every word has a place and everything is in its place."

(iii) In Balram Kumawat Vs. Union of India (UOI) and Others, AIR 2003 SC 3268 : (2003) 1 JT 1 Supp : (2003) 6 SCALE 724 : (2003) 7 SCC 628 : (2003) 3 SCR 24 Supp : (2003) 134 STC 626 : (2003) 2 UJ 1513 : (2003) AIRSCW 4658 : (2003) 6 Supreme 264 , the Supreme Court held that, "Contextual reading is a well-known proposition of interpretation of statute. The classes of a statute should be construed with reference to the context vis-a-vis the other provisions so as to make a consistent enactment of the whole statute relating to the subject-matter. The rule of "ex visceribus actus" should be resorted to in a situation of this nature."

(iv) In State of Gujarat Vs. Salimbhai Abdulgaffar Shaikh and Others, AIR 2003 SC 3224 : (2003) CriLJ 4348 : (2003) 7 JT 550 : (2003) 7 SCALE 253 : (2003) 8 SCC 50 : (2003) 3 SCR 414 Supp : (2004) 1 UJ 159 : (2003) AIRSCW 4594 : (2003) 6 Supreme 484 , the Supreme Court held that,

"Broadly speaking, therefore, an appeal is a proceeding taken to rectify an erroneous decision of a Court by submitting the question to a higher Court.......

........It is well settled principle that the intention of the legislature must be found by reading the Statute as a whole. Every clause of Statute should be construed with reference to the context and other clauses of the Act, so as, as far as possible, to make a consistent enactment of the whole Statute. It is also the duty of the Court to find out the true intention of the legislature and to ascertain the purpose of Statute and give full meaning to the same. The different provisions in the Statute should not be interpreted in abstract but should be construed keeping in mind the whole enactment and the dominant purpose that it may express."

Context in which the words, ''case'' and ''appeal'', are employed in Section 409 Cr.P.C., is for withdrawal or recall, which is the exercise of an administrative power of the Sessions Judge, and he is empowered to do so, "at any time before the commencement of trial or the hearing of the appeal". Section applies to all the criminal Courts, irrespective of the fact, whether it is of equal jurisdiction or lower. To be precise, as per Section 409(2) Cr.P.C., at any time before the trial of the case or the hearing of the appeal has commenced before the Additional Sessions Judge, a Sessions Judge may recall any case or appeal which he has made over to any Additional Sessions Judge and whereas, if both sub-Sections (1) and (2) of Section 408, are conjointly read, it applies only to the lower Court. If the intention of the Legislature was to expand the power of the Sessions Judge to transfer a case from a Criminal Court to another, then the words, "lower Court" need not to have been specifically stated. The Legislature could have simply used the word, "Court", instead of the words "lower Court".

The first portion of the sentence, occurring in sub-Section (2) of Section 408 Cr.P.C., cannot be isolated, to mean that any party interested, can seek for transfer of a case from one Criminal Court to another, even if the Sessions case is dealt with by a Additional Sessions Judge of equal jurisdiction. In the context of purposive construction, Hon''ble Justice Sinha in New India Assurance Company Ltd. Vs. Nusli Neville Wadia and Another, AIR 2008 SC 876 : (2008) 1 JT 31 : (2007) 14 SCALE 556 : (2008) 3 SCC 279 , states that,

"With a view to read the provisions of the Act in a proper and effective manner, we are of the opinion that literal interpretation, if given, may give rise to an anomaly or absurdity which must be avoided. So as to enable a superior court to interpret a statute in a reasonable manner, the court must place itself in the chair of a reasonable legislator/author. So done, the rules of purposive construction have to be resorted to which would require the construction of the Act in such a manner so as to see that the object of the Act fulfilled; which in turn would lead the beneficiary under the statutory scheme to fulfill its constitutional obligations.

Purpose of the legislation, as could be deduced from the reading of the provision, is that if a case is pending on the file of the lower Court, for the expedient of ends of justice, if a party interested files an application or on the report of the lower Court or on its own initiate, the Sessions Judge can transfer a case from one Court to another Criminal Court, in his Sessions Division. In Sri Ram Saha Vs. State of West Bengal and Others, AIR 2004 SC 5080 : (2004) 9 JT 136 : (2004) 8 SCALE 800 : (2004) 11 SCC 497 : (2004) AIRSCW 5807 : (2004) 8 Supreme 341 , that in applying a purposive construction a word of caution is necessary that the text of the statute is not to be sacrificed and the Court cannot rewrite the statute on the assumption that whatever furthers the purpose of the Act must have been sanctioned.

In Re: District and Sessions Judge Raisen, (2005) 3 JLJ 19 : (2005) 3 MPHT 411 : (2005) 3 MPLJ 26 , a Hon''ble Division Bench of the Madhya Pradesh High Court held that Section 408 is not controlled by Section 409(2) Cr.P.C., I am in respectful agreement with Their Lordships'' view. But with an exception that the power of transfer from one Criminal Court to another Criminal Court, can be exercised only with reference to, "any particular case", on the file of the lower Court and not any case or appeal from the Court of equal jurisdiction. Sections 408 and 409 of the Code of Criminal Procedure, can certainly be reconciled, only to the limited extent.

Keeping the broad principle in interpreting a statute and the Sections, in the backdrop and if the expressions in sub-Section (1) in Section 408 Cr.P.C., "expedient for the ends of justice" and the expression, "on the report of the lower Court", in sub-Section (2) of Section 408 Cr.P.C., are conjointly read, then, in the humble opinion of this Court, the legislative intent, is to apply section 408 Cr.P.C., only to a case, pending in the lower Court and not to the Court of equal jurisdiction.

While taking note of the expression, "expedient for the ends of justice", the Kerala High Court in Surendra Kumar''s case, has reached a conclusion that a party who is aggrieved, and who has a case before a Criminal Court, be that a Additional Sessions Judge or a lower Court, should have his grievance redressed, by the learned Sessions Judge, when a transfer is sought for, under sub-Section (1) of Section 408 Cr.P.C..

Section 406 deals with the powers of the Supreme Court. Section 407 deals with the power of the High Court. Section 408 deals with the powers of the Sessions Judge to transfer a case from one Criminal Court to another Criminal Court. If Sections 406 and 407 are read, with the aid of the words "expedient for the ends of justice", then the qualifying expression, "any particular case" in sub-Section (1) of Section 408 Cr.P.C., and the words, "lower Court", in sub-Section (2) of Section 408 Cr.P.C., are to be meant and given effect, to confer powers on the Sessions Judge, to transfer any particular case, only from a Criminal Court to another Criminal Court, lower to a Sessions Judge and if the provision is read in that way, it would avoid any hardship, inconvenience and anomaly in the system, which in my humble opinion, is what the legislature has intended to regulate the proceedings, in the matter of transfer. In that context, proviso to Section 407(2) is engrafted and which states, that,

"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."

At any rate, the Code enables the party interested to move the High Court, under Section 407 Cr.P.C., and he is not remediless. But the question is whether, he has two remedies, i.e., one by applying to the Sessions Judge, under Section 408(1) Cr.P.C., and thereafter, to move the High Court, under Section 407 Cr.P.C. In the hierarchical set up, as provided for, in Sections 406 to 408 of the Code, remedy is available to the party, who intends to move the Sessions Judge, if it is a case, in the lower Court and not of equal jurisdiction. Expedient for the ends of justice, is also one of the grounds, engrafted in Section 407 Cr.P.C., when an application is filed for transfer in the High Court. This provision applies to all the Courts, subordinate to High Court and is not restrictive, whereas, as per Section 408, power of the Sessions Judge to transfer a case from one Criminal Court to another, in the same Sessions Division, can be exercised only, if a case is pending in the lower Court.

On the aspect, as to whether, the Government or the High Court has the power to transfer a case, from the Court of a Special Judge to another Criminal Court, a Hon''ble Division Bench in Ratilal M. Nanavati and Others Vs. State of Delhi, (1954) CriLJ 1252 , held as follows:

"7. Section 526, Criminal P.C., and Clause 22, Letters Patent, empower the High Court to transfer any criminal case from any Court subordinate to its authority to any other Court of equal or superior jurisdiction. The general scheme of the Criminal Law Amendment Act, 1952, makes it quite clear that the Court of a Special Judge is a Court subordinate to the High Court.....

Section 7 declares that certain offences shall be tried by the Special Judge for the area within which they were committed or where there are more Special Judges than one for such area, by such one of them as may be specified in this behalf by the State Government. Section 8 enacts that a Special Judge shall follow the procedure prescribed by Criminal P.C., and that for the purpose of the said provisions the Court of the Special Judge shall be deemed to be a Court of session. It empowers the special judge to pass upon any person convicted by him any sentence authorised by law for the punishment of the offence of which such person is convicted. Section 9 empowers the High Court to entertain appeals and revisions from the orders of Special Judges.

These provisions make it quite clear that the Court of a Special Judge is subordinate to the High Court and consequently that it is within the power of the said Court to transfer a case from the Court of one Special Judge to the Court of another such Judge....."

One of the arguments of Mr. S. Govindarajan, learned Additional Public Prosecutor is that if Section 408 Cr.P.C., has to be meant to be conferring power on the Sessions Judge, then a accused, who is facing a case, before the Special Judge, an Additional Sessions Judge, can also seek for a transfer from his Court to any other Criminal Court of equal jurisdiction, taking the plain meaning of the words, "Criminal Court", in Section 408(1) of the Code. In the light of the decision, stated supra, a Sessions Judge is not empowered to do so, though the Court of a Special Judge, is presided over by an Additional Sessions Judge of a Criminal Court.

Section 408(1) Cr.P.C., refers to only "any particular case" and not all cases, as mentioned in Section 409(2) Cr.P.C. The word "any" in Section 409(2) Cr.P.C., is used in the general sense, in contra distinction to the expression "any particular case", in Section 408(1) Cr.P.C. Expression "particular case" used in Section 408(1) Cr.P.C., has a special and distinct meaning, than the words "any case" in Section 409 Cr.P.C. Another important fact is that the word "appeal", mentioned in Section 409(2) Cr.P.C., is conspicuously absent in Section 408 Cr.P.C.

Let me consider, as to whether, the Courts can add or delete or substitute any word to a statute or section.

(i) In Commissioner of Income Tax, Orissa and Others Vs. N.C. Budharaja and Company and Others, AIR 1993 SC 2529 : (1994) 45 ECC 1 : (1993) 204 ITR 412 : (1993) 5 JT 346 : (1993) 3 SCALE 726 : (1994) 1 SCC 280 Supp : (1993) 3 SCC 631 : (1993) 2 SCR 185 Supp : (1993) 91 STC 450 , the Apex Court held that an object oriented approach, however, cannot be carried to the extent of doing violence to the plain meaning of the Section used by rewriting the Section or substituting the words in the place of actual words used by the legislature.

(ii) In Dadi Jagannadham Vs. Jammulu Ramulu and Others, AIR 2001 SC 2699 : (2001) 6 JT 643 : (2001) 5 SCALE 402 : (2001) 7 SCC 71 : (2002) 1 UJ 200 : (2001) AIRSCW 3051 : (2001) 6 Supreme 294 , the Supreme Court held that,

"13. We have considered the submissions made by the parties. The settled principles of interpretation are that the court must proceed on the assumption that the legislature did not make a mistake and that it did what it intended to do. The court must, as far as possible, adopt a construction which will carry out the obvious intention of the legislature. Undoubtedly if there is a defect or an omission in the words used by the legislature, the court would not go to its aid to correct or make up the deficiency. The court could not add words to a statute or read words into it which are not there, especially when the literal reading produces an intelligible result. The court cannot aid the legislature''s defective phrasing of an Act, or add and mend, and, by construction, make up deficiencies which are there."

(iii) In Institute of Chartered Accountants of India Vs. Ajit Kumar Iddya, AIR 2003 Kar 187 : (2003) 1 KCCR 61 SN : (2003) 128 TAXMAN 13 , the Karnataka High Court held that, "So far as the cardinal law of interpretation is concerned, it is settled that if the language is simple and unambiguous, it is to be read with the clear intention of the legislation. Otherwise also, any addition/subtraction of a word is not permissible. In other words, it is not proper to use a sense, which is different from what the word used ordinarily conveys. The duty of the Court is not to fill up the gap by stretching a word used. It is also settled that a provision is to be read as a whole and while interpreting, the intention and object of the legislation have to be looked upon. However, each case depends upon the facts of its own."

(iv) In Sanjay Singh and Another Vs. U.P. Public Service Commission, Allahabad and Another, AIR 2007 SC 950 : (2007) 2 JT 534 : (2007) 2 SCALE 1 : (2007) 3 SCC 720 : (2007) 1 SCC(L&S) 870 : (2007) 2 SCR 235 : (2007) AIRSCW 707 : (2007) 1 Supreme 639 , the Supreme Court held that,

"It is well settled that courts will not add words to a statute or read into the statute words not in it. Even if the courts come to the conclusion that there is any omission in the words used, it cannot make up the deficiency, where the wording as it exists is clear and unambiguous. While the courts can adopt a construction which will carry out the obvious intention of the legislative or the rule-making authority, it cannot set at naught the legislative intent clearly expressed in a statute or the rules."

(v) In Mohan and Another Vs. State of Maharashtra and Others, AIR 2007 SC 2625 : (2007) 3 CTC 209 : (2007) 4 SCALE 335 : (2007) 9 SCC 431 : (2007) 3 SCR 936 : (2007) AIRSCW 4714 : (2007) 3 Supreme 408 , the Supreme Court held that,

"9. In our opinion under Section 11-A what has to be seen is the date of last publication of the declaration under Section 6, and not any subsequent corrigendum to the said declaration. The only circumstance under which the period between the declaration under Section 6 and the award can be extended is mentioned in the Explanation to Section 11-A which states:

"In computing the period of two years referred to in this section, the period during which any action or proceeding to be taken in pursuance of the said declaration is stayed by an order of a court shall be excluded."

There is no mention in Section 11-A that the period after the publication of the declaration under Section 6 and the publication of any corrigendum to the said declaration has also to be excluded. We will be adding words to the statute if we put such interpretation to Section 11-A, and it is well settled that the court should not add or delete words in a statute.

When the word "appeal" is conspicuously absent in Section 408 Cr.P.C., then the circumstances stated in Section 408(2) can be made applicable, only to any particular case and not to an appeal, pending in any Court. In Surendra Kumar Vs. Vijayan, (2005) 4 ILR (Ker) 450 : (2005) 4 KLT 475 , the Hon''ble Bench of the Kerala High Court, while interpreting Section 408 Cr.P.C., has observed as follows:

"The Presiding Officer of a District Court is the District Judge. The District Judge on the civil side is empowered to transfer any case at any stage from one Additional District Court. If so why should there be a restricted meaning for transfer on the criminal side for the only reason that a provision akin to Section 24(3) regarding subordination is not expressly provided under the Code of Criminal Procedure? Should not that enabling provision be read into under Section 408 since Section 408 appears under Chapter XXXI of the Code dealing with the transfer of criminal cases and since Section 408 itself is captioned as power of Sessions Judge to transfer cases and appeals from one criminal court to another criminal court and in view of the bar under the proviso to Section 407(2) of the Code? It has also to be noted that the power under Section 408 is to be exercised only if it is expedient for the ends of justice and not for any other reason."

Reading of the judgment in Surendra Kumar''s case (cited supra), indicates that the Hon''ble Bench has drawn an analogy from the Code of Civil Procedure and applied the principle of causus omissus.

In Padmasundara Rao and Others Vs. State of Tamil Nadu and Others, AIR 2002 SC 1334 : (2002) 176 CTR 104 : (2002) 255 ITR 147 : (2002) 3 JT 1 : (2002) 2 SCALE 580 : (2002) 3 SCC 533 : (2002) 37 SCL 425 : (2002) 2 SCR 383 : (2002) 170 TAXMAN 303 : (2002) AIRSCW 1156 : (2002) 2 Supreme 359 , a Constitution Bench of the Supreme Court held that, "a causus omissus cannot be supplied by the Court, except in the case of clear necessity and when reason for it is found in the four corners of the statute itself."

In Unique Butyle Tube Industries Pvt. Ltd. Vs. U.P. Financial Corporation and Others , it was argued that the Court cannot supply the omissions by the Legislature. While interpreting a provision, the Supreme Court held that the Court only interprets the law and cannot legislate it and it is for the legislature to amend, modify or repeal it if it is deemed necessary. It is further held that by the principle of causus omissus, Court cannot supply the law.

In Lalu Prasad @ Lalu Prasad Yadav Vs. State of Bihar through CBI (AHD), Patna, (2007) 1 JT 183 : (2006) 13 SCALE 91 : (2007) 1 SCC 49 : (2006) 10 SCR 251 Supp , the Supreme Court, while considering the principle of causus omissus, in the Statute, at Paragraphs 7 and 8, held as follows:

"7. So far as the plea relating to causus omissus is concerned the position in law is as follows:

"21. Two principles of construction - one relating to causus omissus and the other in regard to reading the statute as a whole - appear to be well settled. Under the first principle a causus omissus cannot be supplied by the Court except in the case of clear necessity and when reason for it is found in the four corners of the statute itself but at the same time a causus omissus should not be readily inferred and for that purpose all the parts of a statute or section must be construed together and every clause of a section should be construed with reference to the context and other clauses thereof so that the construction to be put on a particular provision makes a consistent enactment of the whole statute. This would be more so if literal construction of a particular clause leads to manifestly absurd or anomalous results which could not have been intended by the Legislature. "An intention to produce an unreasonable result", said Danackwerts, L.J. in Artemiou v. Procopiou (1966 1 QB 878), "is not to be imputed to a statute if there is some other construction available". Where to apply words literally would "defeat the obvious intention of the legislature and produce a wholly unreasonable result" we must "do some violence to the words" and so achieve that obvious intention and produce a rational construction. (Per Lord Reid in Luke v. IRC (1963 AC 557) where at p. 577 he also observed: "this is not a new problem, though our standard of drafting is such that it rarely emerges".

It is then true that, "when the words of a law extend not to an inconvenience rarely happening, but due to those which often happen, it is good reason not to strain the words further than they reach, by saying it is causus omissus, and that the law intended quae frequentius accidunt."

"But," on the other hand, "it is no reason, when the words of a law do enough extend to an inconvenience seldom happening, that they should not extend to it as well as if it happened more frequently, because it happens but seldom" (See Fenton v. Hampton (1858) XI Moore, P.C. 347). A causus omissus ought not to be created by interpretation, save in some case of strong necessity. Where, however, a causus omissus does really occur, either through the inadvertence of the legislature, or on the principle quod semel aut bis existit proetereunt legislators, the rule is that the particular case, thus left unprovided for, must be disposed of according to the law as it existed before such statute - Causus omissus et oblivioni datus dispositioni communis juris relinquitur; "a causus omissus," observed Buller, J. in Jones v. Smart (1 T.R. 52), "can in no case be supplied by a court of law, for that would be to make laws."

The principles were examined in detail in Maulavi Hussein Haji Abraham Umarji Vs. State of Gujarat and Another, AIR 2004 SC 3946 : (2004) CriLJ 3860 : (2004) 6 JT 227 : (2004) 6 SCALE 320 : (2004) 6 SCC 672 : (2004) 3 SCR 202 Supp : (2004) 2 UJ 1484 : (2004) AIRSCW 5476 : (2004) AIRSCW 4396 : (2004) 6 Supreme 61 : (2004) 7 Supreme 486 .

"12. The golden rule for construing all written instruments has been thus stated:

"The grammatical and ordinary sense of the words is to be adhered to unless that would lead to some absurdity or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity and inconsistency, but no further" (See Grey v. Pearson (1857 (6) H.L. Cas. 61).

The latter part of this "golden rule" must, however, be applied with much caution. "if," remarked Jervis, C.J.,

"the precise words used are plain and unambiguous in our judgment, we are bound to construe them in their ordinary sense, even though it lead, in our view of the case, to an absurdity or manifest injustice. Words may be modified or varied where their import is doubtful or obscure. But we assume the functions of legislators when we depart from the ordinary meaning of the precise words used, merely because we see, or fancy we see, an absurdity or manifest injustice from an adherence to their literal meaning" (See Abley v. Dale 11, C.B. 378).

The words, "subordinate" or "lower" is absent in sub-Section (1) of Section 408. The words, "lower Court" are mentioned in sub-Section (2) of Section 408. Is there any intentional or causus omissus by the Legislature in not including the word "subordinate" or "lower" in Section 408(1) Cr.P.C., or there is any defect in not mentioning the words as, "subordinate criminal Court" or the words "lower Court" mentioned in sub-Section (2) of Section 408 would step in aid of interpreting the words "Criminal Court" used in sub-Section (1) of Section 408 Cr.P.C. Even if it is a defective phrasing, as per the decision of the Privy Council in Robert Wigram Crawford vs. Richard Spooner. , "We cannot aid the Legislature''s defective phrasing or an Act, we cannot add or mend and, by construction made up deficiencies, which are left there."

In the light of the decisions of the Courts, as to how, the words used within different parts of the Section, have to be read and interpreted harmoniously, with the other provisions of the statute, if the latter part of a Section supplements the former, and is also explanatory, then there is no difficulty in coming to a conclusion, that the omission of the word "subordinate" in sub-Section (1) of Section 408 Cr.P.C., is intentional. If both the Sub-Sections are conjointly read, then it would convey the meaning that the words, "Criminal Court" used in sub-Section (1) of Section 408 Cr.P.C., means only a lower Court not a Court of equal jurisdiction.

Thus, even if there was a causus omissus, in the Code of Criminal Procedure, Legislative causus omissus cannot be supplied by Judiciary.

Plain reading of Section 409(2) Cr.P.C., would indicate that the Sessions Judge can withdraw or recall a case made over to the Additional Sessions Judge, before the commencement of the trial in the Additional Sessions Judges'' Court or any appeal before the hearing of an appeal.

In Section 409(2) Cr.P.C., the words, "commence", "trial" and "hearing", are used. Section empowers the Sections Judge to recall or withdraw a case or an appeal before the commencement of the trial or hearing of an appeal. It is an inbuilt restraint in Section 409(2) Cr.P.C., on the Sessions Judge, while exercising his administrative powers. Difficulty may arise, in understanding, as to when a trial or hearing of the appeal has commenced. Therefore, this Court deems it fit to consider the meaning of the above words.

Civil action in most jurisdiction is commenced by filing a complaint with the court. Fed.R.Civil P.3 [see Black''s Law Dictionary, 6th Ed. At 268].

"Proceedings commenced". Proceedings were held to have been "commenced", in the case of an arrest without warrant, when the detainee was charged at the police station, and not upon his first Court appearance (R. V. Brentwood Justices, ex.p. Jones, (1979) RTR 155). Where an information was laid but was not served on the alleged offender, and subsequently a fresh information was laid and served, the proceedings "commenced" for the purposes of this paragraph upon the laying of the second information (R. V. South Western Magistrates'' Court, ex.p. Beaton (1980) RTR 35. (Criminal Law Act, 1977 (c45), sched.14, para 1).

Commencement of criminal proceedings or prosecution. A complaint or preliminary oath before a Magistrate on which a warrant is issued. (Wharton). A prosecution on a criminal charge is deemed commenced when a complaint has been field and a warrant issued. (State v. Woolworth, 148 Kan 180, 81 P2d 43).

Criminal action is commenced within statute of limitations at time preliminary complaint or information is filed with Magistrate in good faith and a warrant issued thereon.... A criminal prosecution is "commenced" (1) when information is laid before Magistrate charging commission of crime, and a warrant of arrest is issued, or (2) when grand jury has returned an indictment." [ Union of India and others Vs. Major General Madan Lal Yadav (Retd.), AIR 1996 SC 1340 : (1996) 3 SCALE 72 : (1996) 4 SCC 127 : (1996) 3 SCR 785 ].

Commencement of trial, until and unless the competent authority convenes the GCM and the GCM assembles to consider the charge and examines whether they would proceed with the trial, the trial does not commence. The preliminary investigation conducted in such cases do not amount to commencement of trial, Shiv Parshad Pandey Vs. C.B.I. through Director, New Delhi, (2003) CriLJ 1710 : (2003) 2 JT 413 : (2003) 2 SCALE 658 : (2003) 11 SCC 508 : (2003) 1 UJ 640 , [Border Security Force Act, 1968, ss. 141, 84).

Trial, the hearing of a cause, civil or criminal, before a judge who has jurisdiction over it, according to the laws of the land. ''Trial'' is to find out by due examination the truth of the point in issue or question between the parties, whereupon judgment may be given'' (Co.Litt.124 b).

Trial, is used in the sense of reference to a stage after the inquiry, Bhagwandas Vs. The State of Rajasthan, AIR 1957 SC 589 : (1957) 1 SCR 854 .

Trial, is the examination by a competent court of the facts or laws in dispute, or put in issue in a case. It is the judicial examination of issues between the parties, whether they are of law or of fact, Sajjansingh and Another Vs. Bhogilal Pandya and Another, AIR 1958 Raj 307 .

The word ''trial'' in s. 98 of the Representation of People Act, 1951 means the entire proceeding before the tribunal from the reference to it by the Election Commission to the conclusion, Om Prabha Jain Vs. Gian Chand and Another, AIR 1959 SC 837 : (1959) 2 SCR 516 Supp . (Representation of the People Act, 1951 s. 98).

Trial, is understood as referring to the stage of the proceeding in a criminal case after the charge had been framed against the accused, Vijay Kumar Vs. State, (1977) CriLJ 1192 .

In Gandharv Lal Vs. State of Himachal Pradesh, (1980) CriLJ 1189 : (1980) 9 ILR HP 326 , the Hon''ble Himachal Pradesh High Court, at Paragraphs 8 to 10, held as follows:

"8. The term ''trial'' has of course not been defined anywhere in the Code. Its import can, however, be ascertained by reference to various provisions of the Code. We find reference to four types of trials in the Code. They are- (1) trial before a Court of Session, (2) trial of warrant cases by Magistrate, (3) trial of summons cases by Magistrates and (4) summary trials.

In Union of India and others Vs. Major General Madan Lal Yadav (Retd.), AIR 1996 SC 1340 : (1996) 3 SCALE 72 : (1996) 4 SCC 127 : (1996) 3 SCR 785 , the Supreme Court held that,

"The word ''trial'' according to Collins English Dictionary means:

"the act or an instance of trying or proving; test or experiment... Law. a. the judicial examination of the issues in a civil or criminal cause 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 nor the accused and the judicial examination of the issues involved".

According to Ballentine''s Law Dictionary [2nd ed.] ''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 Edition] Centennial Edition, the word ''trial'' is defined thus:

"A judicial examination and determination of issues between parties to action, whether they be issues of 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 facts, before a court that has proper jurisdiction".

In Webster''s Comprehensive Dictionary International Edition, at page 1339, the word ''trial'' is defined thus:

"....The examination, before a tribunal having assigned jurisdiction, of the facts or law involved in all 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 Collins 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 begin, institute or start Civil action in most jurisdictions is commenced by filing a complaint with the court.... Criminal action is commenced within statute of limitations at time preliminary complaint or information is filed with magistrate in good faith and a warrant issued thereon... A criminal prosecution is "commenced" [1] when information is laid before magistrate charging commission of crime, and a warrant of arrest is issued, or [2] when grand jury has returned an indictment".

In the "Words and Phrases" [Permanent Edition] Vol.42A, at page 171, under the head "Commencement", it is stated that "trial'' commences at least from the time when work of empanelling of a jury begins".

Our conclusion further gets fortified by the scheme of the trial of a criminal case under the Code of Criminal Procedure, 1973, viz., Chapter XIV "Conditions requisite for initiation of proceedings" containing Sections 190 to 210, Chapter XVIII containing Sections 225 to 235 and dealing with "trial before a Court of Sessions" pursuant to committal order under Section 209 and in Chapter XIX "trial of warrant-cases by Magistrates" containing Sections 238 to 250 etc. It is settled law that under the said Code trial commences the moment cognizance of the offence is taken and process is issued to the accused for his appearance etc. Equally, at a Sessions trial, the court considers the committal order under Section 209 by the Magistrate and proceeds further. It takes cognizance of the offence from that stage and proceeds with the trial. The trial begins with the taking of the cognizance of the offence and taking further steps to conduct the trial."

Trial, though the word ''trial'' is not defined either in the Code or in the Act, it is clearly distinguishable from inquiry. The word ''inquiry'' is defined in s. 2(g) of the Code as ''every inquiry, other than a trial, conducted under this Code by a Magistrate or Court". So trial is distinct from inquiry and inquiry must always be a forerunner to the trial, Vidyadharan Vs. State of Kerala, (2004) CriLJ 605 : (2003) 9 JT 89 : (2003) 9 SCALE 581 : (2004) 1 SCC 215 : (2003) 5 SCR 524 Supp [Criminal Procedure Code, 1973, s. 2(g)].

Trial, inquiry, the word ''trial'' is not defined either in the Code or in the Act it is clearly distinguishable from inquiry. The word ''inquiry'' is defined in s. 2(g) of the Code as ''every inquiry, other than a trial, conducted under this Code by a Magistrate or Court." So the trial is distinct from inquiry and inquiry must always be a forerunner to the trial, Moly and Another Vs. State of Kerala, AIR 2004 SC 1890 : (2004) CriLJ 1812 : (2004) 4 JT 1 : (2004) 3 SCALE 503 : (2004) 4 SCC 584 : (2004) 3 SCR 346 : (2004) AIRSCW 1708 : (2004) 2 Supreme 610 [Criminal PC, 1973, S. 2(g)].

In Jaspal Singh Vs. Municipal Corporation of Delhi, AIR 1972 Delhi 230 : (1972) 8 DLT 516 , the Court held that,

"The hearing of the suit would be on a date to which it may have been adjourned to be taken up by the Court for applying its mind to it. Where the suit stands adjourned for merely acquiring the knowledge as to what has happened in a pending transfer application moved before the District Judge, then it cannot bs held that the adjourned date would be for hearing of the suit. No authority has been cited before me which may persuade me to any other view."

In Sandeep Barar and Others Vs. State of Punjab and others, AIR 1990 SC 600 : (1990) 1 JT 94 : (1990) 1 SCALE 85 : (1990) 2 SCC 187 : (1990) 1 UJ 447 , the Supreme Court held as follows:

"7. Word "Hearing" can admit of a very wide and liberal interpretation. It may include recording of evidence, consideration of arguments on some aspects of suit, examination of various question relating to suit and so on. The essential prerequisite is whether the Judge is applying his mind to some aspect of the case. If he is conducting some routine work or passing interlocutory orders, he cant be said to be "hearing the suit".

In a suit, "hearing" can be conducted at various stages. It does not necessarily imply the last hearing at the time of final adjudication. Going by the scheme and purpose of Order 9, C.P.C., hearing contemplated therein is the first hearing required to be conducted in terms of summons which may have been issued to the defendant under Order 5, Rule 1. It does not envisage an adjourned hearing which is taken care of by Order 17, C.P.C."

The Supreme Court in Siraj Ahmad Siddiqui Vs. Shri Prem Nath Kapoor, AIR 1993 SC 2525 : (1993) 5 JT 300 : (1994) 107 PLR 75 : (1993) 3 SCALE 771 : (1993) 4 SCC 406 : (1993) 2 SCR 254 Supp , while dealing with the provisions of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, referring to the concept of first hearing, held as under:

"13. The date of first hearing of a suit under the Code is ordinarily understood to be the date on which the court proposes to apply its mind to the contentions in the pleadings of the parties to the suit and in the documents filed by them for the purpose of framing the issues to be decided in the suit......................... We are of the view, therefore, that the date of first hearing as defined in the said Act is the date on which the court proposes to apply its mind to determine the points in controversy between the parties to the suit and to frame issues, if necessary."

The Supreme Court in Mahadev Govind Gharge and Others Vs. The Special Land Acquisition Officer, Upper Krishna Project, Jamkhandi, Karnataka, AIR 2011 SC 2439 : (2012) 113 CLT 414 : (2011) 6 JT 100 : (2011) 8 SCR 829 : (2011) 5 UJ 2835 : (2011) AIRSCW 3220 : (2011) 3 Supreme 665 , held as follows:

"40. The date of hearing must not be confused with the expression ''step in the proceedings''. These are two different concepts of procedural law and have different connotation and application. What may be a ''step in the proceeding'', essentially, may not mean a ''hearing'' by the Court. Necessary ingredients of ''hearing'' thus are application of mind by the court and address by the party to the suits."

The above decisions, can be made applicable to the hearing of an appeal also. In the case on hand, arguments have been advanced by both sides and appeals were posted for judgment. In the light of the decisions, stated supra, without any doubt, it can be concluded that the hearing of the appeals is over and therefore, the power under Section 409(2) Cr.P.C., cannot be exercised by the Sessions Judge, to transfer the appeals to any other Court of competent jurisdiction.

At stated supra, the Sessions Judge is not empowered to withdraw or recall any case, after the commencement of the trial, exercising his administrative powers. High Courts of Gauhati, Kerala and Madhya Pradesh have taken a different view. In the latter paragraphs of this Judgment, I have also considered a case, where a learned single Judge of this Court, has rejected a prayer for transfer of a case, after the trial has commenced.

I am of the humble opinion that the higher Courts, have to consider, what is the logic and reason of the Legislature in engrafting the words, in Section 408(2) Cr.P.C., i.e., on the report of the lower Court", followed by the later portion of the sentence, "or on the application of a party interested, or on his own initiative."

In the light of the law declared by the Apex Court, on the interpretation of statutes or the Section, this Court is of the humble opinion that a Section or any part in the section, has to be read, as a whole and each word, as a whole, used in Section has to be given its meaning to the context, in which, it is used. Each word employed in the legislation has to be given the plain, literal and grammatical meaning and Courts are not empowered to delete or substitute the same, by way of interpretative process. Therefore, it is not open to the petitioners to contend that the opening sentence of sub-Section (2) of Section 408 Cr.P.C., ie., on the report of the lower Court or in particular, the use of the words, "lower Court", is illogical to the context, in which, sub-Section (1) to Section 408 Cr.P.C., is enacted by the Legislature, in the matter of transfer of a case, i.e., from a Criminal Court to another Criminal Court.

Section 407 Cr.P.C., states that the High Court may order, that any particular case or appeal, or class of cases or appeals, be transferred from a Criminal Court subordinate to its authority to any other such Criminal Court of equal or superior jurisdiction. Reading of sub-Clause (c) of Section 407(1) Cr.P.C., states that an order of transfer can be passed by the High Court, provided that the High Court is satisfied that whenever it is made to appear to the High Court-

(a) that a fair and impartial inquiry or trial cannot be had in any Criminal Court subordinate thereto, or

(b) that some question of law of unusual difficulty is likely to arise, or

(c) that an order under this section is required by any provision of this Code, or will tend to the general convenience of the parties or witnesses, or is expedient for the ends of justice.

it may order-

(i) that any offence be inquired into or tried by any Court not qualified under sections 177 to 185 (both inclusive), but in other respects competent to inquire into or try such offence;

(ii) that any particular case or appeal, or class of cases or appeals, be transferred from a Criminal Court subordinate to its authority to any other such Criminal Court of equal or superior jurisdiction;

(iii) that any particular case be committed for trial to a Court of Session; or

(iv) that any particular case or appeal be transferred to and tried before itself.

At this juncture, having regard to the language used in Section 407(1) Cr.P.C., this Court is also bound to consider, sub-Section (2) of Section 407 Cr.P.C., which states that the High Court may act on the report of a lower Court, within the territorial jurisdiction of the High Court or on the application of a party interested, can make an application, under Section 407 Cr.P.C., to transfer any particular case or appeal or class of appeals, from a Criminal Court, subordinate to High Court''s authority, to any other such criminal Court of equal or superior jurisdiction.

Sub-Sections (1) and (2) of Section 407 Cr.P.C., state that on the application of a party interested, he can seek for an order to be passed by the High Court that any particular case or appeal, or class of cases or appeals, be transferred from a Criminal Court subordinate to its authority to any other such Criminal Court of equal or superior jurisdiction; that any particular case be committed for trial to a Court of Session; or that any particular case or appeal be transferred to and tried before itself, for anyone of the reasons, in sub-Clauses (a), (b) or (c), which reads as follows:

(a) that a fair and impartial inquiry or trial cannot be had in any Criminal Court subordinate thereto, or

(b) that some question of law of unusual difficulty is likely to arise, or

(c) that an order under this section is required by any provision of this Code, or will tend to the general convenience of the parties or witnesses, or is expedient for the ends of justice.

Thus, the power of the High Court to order for transfer of a case or appeal, pending on the file of any subordinate Court thereto, for the reasons contained in sub-Section (1) of Section 407 Cr.P.C., is clear. When the main Section 407 deals with any particular case or appeal, or class of cases or appeals, be transferred from a Criminal Court subordinate to its authority to any other such Criminal Court of equal or superior jurisdiction, proviso to Section 407 Cr.P.C., states 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.

The word "any" in Section 408(1) Cr.P.C., is controlled by the context, in which, it is used. It is not used in the general sense, but restricted to the circumstances, stated therein. The word "any" used in Section 409(2) Cr.P.C., is in general sense. Needless to state that the use of the word, "particular" in Section 408(1) Cr.P.C., is for the specific purpose, transfer. In Section 409(2) Cr.P.C., when the word, "any" is used, it is as wide as possible, because the Sessions Judge, in exercise of his administrative powers, distributes the cases and appeals to the other Additional and Assistant Judges, by making over the cases and appeals and at any time, before the commencement of the trial and hearing of the appeal, be can withdraw or recall, any case or appeal.

In Section 408(1) Cr.P.C., there is an omission of the word, "appeal". In order to understand, as to how the words, "any", "case", "any particular case" or "appeal", have to be understood in the context, in which, they are used, let me incorporate the definitions and some of the cases decided.

(i) In Ashiq Hasan Khan and Others Vs. Sub Divisional Officer and Others, AIR 1965 Patna 446 , a learned Single Judge of the Patna High Court, with reference to the word, "any", held as follows:

"...it is clear that the use of the expression "any" would be equal to the word "all" in certain contexts and as has been referred to in Stroud''s Judicial Dictionary (3rd Edition, page 150), the word "any" excludes limitation or qualification. Referring to Liddy v. Kennedy, (1871) 5 HL 134, Stroud has quoted the following passage "So, a power in a lease, enabling the lessor to resume possession of any portion of the premises demised; enables him to resume aft." Even in the Oxford Dictionary "any has been taken to mean "all." "

(ii) The word ''any'' may have one of the several meanings according to the circumstances, it may mean ''all'', ''each'', ''every'', ''some'', or ''one'' or more out of several, whether the expression ''any'' used in the statute is indicative of singular or the plural will depend upon the context of each case. [Pashupati Nath Singh v. State 1978 Pat. LJR 578 (581); 1978 BLJ 593].

(iii) In Wharton''s Law Lexicon, the word ''any'' means "some; one of many; and indefinite number. One indiscriminately or whatever kind or quantity. Word ''any'' has a diversity of meaning and may be employed to indicate ''all'' or ''every'' as well as ''some'' or ''one'' and its meaning in a given statute depends upon the context and the subject-matter of the statute. It is often synonymous with ''either'', ''every'' or ''all''. Its generality may be restricted by the context;'' [Black''s Law Dictonary, 5th Edn.,]. [Ref. Shri Balaganesan Metals Vs. M.N. Shanmugham Chetty and Others, AIR 1987 SC 1668 : (1987) 2 JT 247 : (1987) 1 SCALE 1110 : (1987) 2 SCC 707 : (1987) 2 SCR 1173 .

(iv) In Lucknow Development Authority Vs. M.K. Gupta, AIR 1994 SC 787 : (1994) 80 CompCas 714 : (1994) 1 CompLJ 1 : (1993) 6 JT 307 : (1993) 4 SCALE 370 : (1994) 1 SCC 243 : (1993) 3 SCR 615 Supp , the Supreme Court held as follows:

"The word ''any'' dictionarily means ''one or some or all''. In Black''s Law Dictionary it is explained thus, "word ''any'' has a diversity of meaning and may be employed to indicate ''all'' or ''every'' as well as ''some'' or ''one'' and its meaning in a given statute depends upon the context and the subject-matter of the statute". The use of the word ''any'' in the context it has been used in clause (o) indicates that it has been used in wider sense extending from one to all."

(v) In Indian Medical Association Vs. V.P. Shantha and Others, AIR 1996 SC 550 : (1996) 86 CompCas 806 : (1996) 1 CTC 119 : (1995) 8 JT 119 : (1996) 112 PLR 1 : (1995) 6 SCALE 273 : (1995) 6 SCC 651 : (1995) 5 SCR 110 Supp : (1996) 1 UJ 664 , the Supreme Court held that,

"The words ''any'' and ''potential'' are significant. Both are of wide amplitude. The word ''any'' dictionarily means; one or some or all'', In Black''s Law Dictionary it is explained thus, "word ''any'' has a diversity of meaning and may be employed to indicate ''all'' or ''every'' as well as ''some'' or ''one'' and its meaning in a given statue depends upon the context and the subject- matter of the statute". The use of the word ''any'' in the context it has been used in clause (o) indicates that it has been used in wider sense extending from one to all."

(vi) "APPEAL" is defined in the Oxford Dictionary, volume I page 398, as the transference of a case from an inferior to a higher Court or tribunal in the hope of reversing or modifying the decision of the former. In the Law Dictionary by Sweety, the term "appeal" is defined as a proceeding taken to rectify an erroneous decision of a Court by submitting the question to a higher Court or Court of appeal, and it is added that the term, therefore, includes, in addition to the proceedings specifically so called, the cases stated for the opinion of the Queen''s Bench Division and the Court of Crown Cases reserved, and proceedings in error. In the Law Dictionary by Bouvier an appeal is defined as the removal of a case from a Court of inferior to one of superior jurisdiction for the purpose of obtaining a review and re-trial, and it is explained that in its technical sense it differs from a writ of error in this, that it subjects both the law and the facts to a review and re-trial, while the latter is a Common Law process which involves matter of law only for re-examination; it is added, however, that the term "appeal" is used in a comprehensive sense so as to include both what is described technically as an appeal and also the common law writ of error; as put by Lord Westbury in Attorney-General v. Sillem, 10 HLC 704, the right of appeal is the right of entering a superior Court and invoking its aid and interposition to redress the error of the Court below. As Mr. Justice Subramania Ayyar observed in Chappan v. Moidin, 22 Mad 68 at.p.80 the two things which are required to constitute appellate jurisdiction are the existence of the relation of superior and inferior Court and the power, on the part of the former, to review decisions of the latter.

(vii) In the Commentary on American jurisprudence by Andrews, Volume II, Page 1510, it is pointed out that appellate procedure embraces two distinct modes of its exercise, namely, first, the record of the inferior tribunal may be brought to the superior tribunal and the decision reviewed, affirmed, reversed or modified; or, secondly, the superior tribunal may check the exercise or usurpation of power in inferior tribunals exercising judicial or quasi-judicial power, or direct the mode in which they shall proceed without controlling the manner of doing that which is the result of judicial deliberation. Story in his work on the Constitution (Volume II, Sections 1760 to 1776 ), points out the distinction between the original and the appellate jurisdiction of a Court, and observes that the characteristics of an appeal is the revision of a judicial proceeding of an inferior Court, so that the mode in which that power is exercised is wholly immaterial. [ Secretary of State for India in Council Vs. British India Steam Navigation Company and Another, 9 Ind. Cas. 183 (Per Mookerjee and COX. JJ.)]

(viii) An ''appeal'' is the removal of a cause or a suit from an inferior to a superior judge or Court for re-examination or review. Chakkara Chappan Vs. Moidin Kutti, (1899) ILR (Mad) 68 : (1898) 8 MLJ 231 .

(ix) An appeal, strictly so called, is one, "in which the question is, whether the order of the Court from which the appeal is brought was right on the materials which that Court had before it" (per Lord Davey, Ponnamma v. Arumogam [1905] AC 383, at 390).

(x) In Section 115, Civil Procedure Code (5 of 1908), and in Sections 15 and 39 of the Letters Patent the word "appeal" was used in a comprehensive sense so as to include both what is described technically as an appeal as also the common law writs of error. But the word ''appeal'' seems to be used in its narrower sense in the Limitation Act, [ Subramanya Pillai v. Seethai Ammal, 12 Ind Cas 38 , (per AYLING AND SPENCER, JJ.)].

(xi) The expression "appeal" in S. 5, Limitation Act XV of 1877, does not include an application for leave to appeal in form pauperis [Ref. Surat Chandra Dey v. Broheshwari Dass - 30 C. 790].

(xii) An ''appeal'' is an application by a party to an appellate Court asking it to set aside or revise a decision of a subordinate Court. [ Nagendra Nath Dey and Another vs. Suresh Chandra Dey andAIR 1932 165 (Privy Council) as referred in Tirupati Balaji Developers Pvt. Ltd. and Others Vs. State of Bihar and Others, AIR 2004 SC 2351 : (2004) 4 CompLJ 171 : (2004) 1 JT 160 Supp : (2004) 4 SCALE 724 : (2004) 5 SCC 1 : (2004) 2 SCR 494 Supp : (2004) AIRSCW 2522 : (2004) 3 Supreme 445 .

(xiii) In Chautala Workers Co-operative Transport Society Ltd. and Another Vs. State of Punjab and Others, AIR 1962 P&H 94 : (1962) 1 ILR (P&H) 285 , the Court held that,

"The word ''appeal'' has not been defined anywhere and its scope has not been laid down in the statute in question.

An appeal in legal parlance is held to mean the removal of a cause from an inferior or subordinate to a superior tribunal or forum in order to test and scrutinise the correctness of the impugned decision. It amounts in essence and pith to a complaint to a higher forum that the decision of the subordinate tribunal is erroneous and therefore liable to be rectified or set right."

(xiv) An appeal, in substance, is in the nature of a judicial examination of a decision by a higher Court of a decision of an inferior Court, to rectify any possible error in the order under appeal. V.C. Shukla Vs. State through C.B.I., AIR 1980 SC 962 : (1980) CriLJ 690 : (1980) SCC(Cri) 695 : (1980) 2 SCR 380 .

(xv) Contrasted with "review": "Appeal", in the context of an ouster clause means re-examination by a superior judicial authority of both findings of fact and conclusions of law as to the legal consequences of those facts made by an inferior tribunal in the exercise of a jurisdiction conferred upon it by statute to decide questions affecting the legal rights of others, and the substitution of the superior judicial authority''s own findings of fact and conclusions of law for those of the inferior tribunal. In ''review'' the function of the superior judicial authority is limited to re-examining the inferior tribunal''s conclusions of law as to the legal consequences of the facts as they have been found by the inferior tribunal." (Att-Gen. v. Ryan [1980] AC 718 at 729, HL per Lord Diplock).

(xvi) Broadly speaking, an ''appeal'' is a proceeding taken to rectify an erroneous decision of a Court by submitting the question to a higher Court. State of Gujarat Vs. Salimbhai Abdulgaffar Shaikh and Others, AIR 2003 SC 3224 : (2003) CriLJ 4348 : (2003) 7 JT 550 : (2003) 7 SCALE 253 : (2003) 8 SCC 50 : (2003) 3 SCR 414 Supp : (2004) 1 UJ 159 : (2003) AIRSCW 4594 : (2003) 6 Supreme 484 .

(xvii) In Namamal and Others Vs. Radhey Shyam, AIR 1970 Raj 26 : (1969) WLN 1 , the Court held that,

"Now according to Webster''s Dictionary the first meaning, in law, of the noun ''appeal'' is the "removal of the cause or a suit from "an inferior to a superior Judge or court for re-examination or review." The explanation of the term in Wharton''s Law Lexicon, which is only different in words, is "the removal of a "cause from an inferior to a superior Court for the purpose of "testing the soundness of the decision of the inferior Court."

And in consonance with this broad meaning of the word appellate jurisdiction means, the power of a superior Court to review "the decision of an inferior Court". Here the two things, which are required to constitute appellate jurisdiction, are the existence of the relation of superior and inferior Court and the power on the part of the former to review decisions of the latter. This has been well put by Story: The essential criterion of appellate jurisdiction is, that it revises and corrects the proceedings in a cause already instituted and does not create that cause. In reference to judicial tribunals an appellate jurisdiction, therefore, necessarily implies that the subject matter has been already instituted and acted upon by some other Court, whose judgment or proceedings are to be revised, (Section 1761: Commentaries on the Constitution of the United States)" (P 80). Suffice it to say that even if we adopt the dictionary meaning of the word "appeal" as "the removal of a cause or the suit from an inferior to a superior Judge or court for re-examination or review," it cannot be said that merely by filing an application for leave to appeal, the cause or suit is removed from an inferior court to a superior court for re-examination or a review. An application for grant of leave to appeal is only an application for grant of necessary permission to file an appeal. If the permission is granted then only the applicant can file appeal. Thus, making of an application for leave to appeal cannot be regarded as "appeal" itself.........

..... Secretary of State for India in Council Vs. British India Steam Navigation Company and Another, 9 Ind. Cas. 183 .... In this connection, the learned Judges observed, "Now the term ''Appeal'' is defined in the Oxford Dictionary, Volume 1, page 398, as the transference of a case from an inferior to a higher Court or tribunal in the hope of reversing or modifying the decision of the former.'' Reference was also made to the definition of the term "appeal" contained in the Law Dictionary by Sweet where it was defined "as a proceeding taken to rectify an erroneous decision of a Court by submitting the question to a higher Court, or Court of appeal." This case also cannot be of any assistance to us in deciding the point argued before us."

(xviii) In Wharton''s Law Lexicon, the word, "case" includes a suit or any proceeding, before a court. [Legal Services Authorities Act, 1987 (39 of 1987) s. 2(1)(a)] It also means - (1) A trial, (2) A trial involving some point of law so important as to be published in Law Reports for future use a s a precedent, and (3) A statement of facts and documents, raising a point of law, submitted for the opinion of counsel. (4) includes a suit or any proceeding before a court. [Legal Services Authorities Act, 1987 (39 of 1987) s. 2(1)(a)], (5) The expressing "case" is not limited in its import to the entirety of the matter in dispute in an action.

(xix) The Word "Case" in Section 253, Cr.P.C., is not restricted to a complaint. This is not a civil proceeding. "Case" should also include case made out at the trial. Firm Govind Moti and Co. v. S.B. Corporation, AIR 1954 Kutch 33 at 37 : 1954 Crl.L.J. 1086.

(xx) The expression "case" is not defined in the Criminal Procedure Code. It is undoubtedly not restricted to a litigation in the nature of a suit in a civil court. It includes a proceeding in a civil court in which the jurisdiction of the court is invoked for the determination of some claim or right legally enforceable. The expression "case" is a word of comprehensive import; it includes civil proceedings other than suits, and is not restricted by anything contained in the section to the entirety of the proceedings in a civil court. To interpret the expression "case", as an entire proceeding only not a part of a proceeding would be to impose a restriction upon the exercise of powers of superintendence which the jurisdiction to issue writs, and the supervisory jurisdiction are not subject, and may result in certain cases in denying relief to an aggrieved litigant where it is most needed, and may result in the perpetration of gross injustice. The expression "case" includes a suit, but in ascertaining the limits of the jurisdiction of the High Court, there would be no warrant for executing it with a suit alone." [ Major S.S. Khanna Vs. Brig. F.J. Dillon, AIR 1964 SC 497 : AIR 1963 SC 497 : (1964) 66 PLR 115 : (1964) 4 SCR 409 ]

(xxi) The word ''case'' may cover a petition filed under Section 528 of the old CrPC (5 of 1898) (now Ss.8-412 of 1974 code) before the Sessions Judge. Varjiwan P. Seth Vs. Ratanlal Jahotia and Another, AIR 1964 AP 59 : (1964) CriLJ 176 .

(xxii) In Bhimappa Basappa Bhu Sannavar Vs. Laxman Shivarayappa Samagouda and Others, AIR 1970 SC 1153 : (1970) CriLJ 1132 : (1970) 1 SCC 665 : (1970) 1 SCC(Cri) 263 : (1971) 1 SCR 1 , the Supreme Court held that,

"The word ''case'' is not defined by the Code but its meaning is well under-stood in legal circles. In criminal jurisdiction means ordinarily a proceeding for the prosecution of a person alleged to ''have committed In offence. In other contexts the word may represent other kinds of proceedings but in the context of the sub-section it must mean a proceeding which at the end results either in discharge, conviction, or acquittal of an accused person.

(xxiii) In Baldevdas Shivlal and Another Vs. Filmistan Distributors (India) P. Ltd. and Others, AIR 1970 SC 406 : (1969) 2 SCC 201 : (1970) 1 SCR 435 , the Supreme Court held that,

"The expression "case" is not limited in its import to the entirety of the matter in dispute in an action. This Court observed in Major S.S. Khanna Vs. Brig. F.J. Dillon, AIR 1964 SC 497 : AIR 1963 SC 497 : (1964) 66 PLR 115 : (1964) 4 SCR 409 that the expression "case" is a word of comprehensive import : it includes a civil proceeding and is not restricted by anything contained in s. 115 of the Code to the entirety of the proceeding in a civil court. To interpret the expression "case" as an entire proceeding only and not a part of the proceeding imposes an unwarranted restriction on the exercise of powers of superintendence and may result in certain cases in denying relief to the aggrieved litigant where it is most needed and may result in the perpetration of gross injustice. But it was not decided in Major S.S. Khanna''s case that every order of the Court in the course of a suit amounts to a case decided. A case may be said to be decided, if the Court adjudicates for the purposes of the suit some right or obligation of the parties in controversy; every order in the suit cannot be regarded as a case decided within the meaning of s. 115 of the Code of Civil Procedure."

(xxiv) A ''case'' is a formal legal proceeding instituted in a Court of law for the enforcement or prosecution of a right of suitors, the enforcement of an obligation binding another in favour of the suitor, the redress or prevention of a wrong, or punishment of a public offence. Nirmal Dass Khaturia and Others Vs. The State Transport (Appellate) Tribunal, U.P., Lucknow and Others, AIR 1972 All 200 : (1972) 42 AWR 10 , {U.P. High Courts (Amalgamation) Order, (1948), Article 14.}

(xxv) In J.C. Yadav and others Vs. State of Haryana and others, AIR 1990 SC 857 : (1990) 60 FLR 523 : (1990) 1 JT 278 : (1990) 2 LLJ 138 : (1990) 1 SCALE 229 : (1990) 2 SCC 189 : (1990) 1 SCR 470 : (1990) 1 UJ 636 , the Supreme Court held that,

"The expression "in any particular case" does not mean that the relaxation should be confined only to an individual case. One of the meanings of the expression "particular" means "peculiar or pertaining to a specified person--thing--time or place--not common or general". The meaning of the word particular in relation to law means separate or special, limited or specific. The word ''case'' in ordinary usage means ''event'', ''happening'', ''situation'', ''circumstances''. The expression ''case'' in legal sense means ''a case'', ''suit'' or ''proceeding in Court or Tribunal''. Having regard to these meanings the expression ''in any particular case'' would mean; in a particular or pertaining to an event, situation or circumstance. Rule 22 postulates relaxation of Rules to meet a particular event or situation,"

(xxvi) In V.P. Padmanabhan Nair and Others Vs. Grasim Industries, Mavoor and Others, AIR 1997 Ker 356 : (1997) 3 ILR (Ker) 612 , the Court, with reference to Civil Procedure Code, held that,

"The expression "case" which appears in the Section is not defined anywhere in the Code. But, going by the Explanation to Section 115, the expression "any case which has been decided" includes any order made or any order deciding an issue, in the course of a suit or other proceeding."

The definitions to the words, "any", "appeal", "particular" and "any particular case" and the decisions are considered in this judgment only to explain that in Section 408 Cr.P.C., the word "any" or the words "any particular case" are used in different context, than in Section 409(2) Cr.P.C. It is also to understand that the word "case" used in Section 408(1) Cr.P.C., should not be interpreted to mean, appeal, as included in Section 408(1) Cr.P.C.

There is a conspicuous omission of the word, "appeal" in the proviso to Section 407(2) Cr.P.C. If the legislature had intended to include that an appeal pending on the file of one Criminal Court, can be transferred to another Criminal Court, in the same Sessions Division, by the Sessions Judge, on the application made by an interested person, then the word, "appeal" would have been included in the proviso also. The power to transfer an appeal from one Criminal Court to another, has been given only to the High Court and not to the Sessions Judge. That is why, while engrafting Section 408 Cr.P.C., the Legislature has framed Section 408(1), in the following manner that, "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".

Proviso to Section 407 and Section 408(1) Cr.P.C., would convey the same meaning, that is, an application can be filed by the party interested to seek for transfer from one Criminal Court to another Criminal Court, in the same Sessions Division, but the case should be from a lower Court. The case can be pending on the file of the Assistant Sessions Judge or the Magistrate, lower in jurisdiction. Needless to state that Law Commission, in its 41st Report, has deleted any appeal to be filed to an Assistant Sessions Judge and he can have only original jurisdiction, i.e., cases made over to him, by the Sessions Judge, in exercise of his powers under Section 409(2) Cr.P.C.

If the case or appeal is pending on the Courts of equal jurisdiction, i.e., an Additional Sessions Judge, then the party interested may file an application, directly to the High Court under Section 407(1)(ii) Cr.P.C. While conferring power on the High Court to transfer cases or appeals, the Legislature has specifically stated that the Criminal Court, should be subordinate to its authority and the High Court can transfer any case or appeal or class of cases or appeals, to the Court of equal or superior jurisdiction.

The words, equal or superior jurisdiction are also conspicuously absent both in the proviso to Section 407(2) Cr.P.C., and in Section 408(1) Cr.P.C. But in sub-Section (2) of Section 408 Cr.P.C., the words "lower Court" are only used and therefore, this Court is of the view that the words "Criminal Court" in Section 408(1) Cr.P.C., cannot be read as Court of equal jurisdiction and consequently, the Sessions Judge cannot transfer any case, pending on the file of equal jurisdiction. He can only transfer a case pending on the file of a lower Court, subject to the conditions, stated therein.

The word "appeal" cannot be inserted to the proviso to Section 407 Cr.P.C. Procedure to be followed in filing an application, under Section 407 Cr.P.C., i.e., to the High Court, is set out in sub-Sections 3 to 7 of said Section, which are extracted hereunder:

"(3) Every application for order under sub-section (1) shall be made by motion, which shall, except when the applicant is the Advocate-General of the State, be supported by affidavit or affirmation.

(4) When such application is made by an accused person, the High Court may direct him to execute a bond, with or without sureties, for the payment of any compensation which the High Court may award under sub-section (7).

(5) Every accused person making such application shall give to the Public Prosecutor notice in writing of the application, together with a copy of the grounds on which it is made; and no order shall be made on the merits of the application unless at least twenty-four hours have elapsed between the giving of such notice and the hearing of the application.

(6) Where the application is for the transfer of a case or appeal from any subordinate Court, the High Court may, if it is satisfied that it is necessary so to do in the interests of justice, order that, pending the disposal of the application, the proceedings in the subordinate Court shall be stayed, on such terms as the High Court may think fit to impose:

Provided that such stay shall not affect the subordinate Court''s power of remand under section 309.

(7) Where an application for an order under sub-section (1) is dismissed, the High Court may, if it is of opinion that the application was frivolous or vexatious, order the applicant to pay by way of compensation to any person who has opposed the application such sum not exceeding one thousand rupees as it may consider proper in the circumstances of the case."

Sub-Section (3) of Section 408 Cr.P.C., states that, "the provision of sub-section (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. Sub-Section (1) of Section 407 Cr.P.C., states that the High Court can transfer any particular case or appeal, from the Criminal Court, subordinate to its authority.

Then, in my humble opinion, Sub-Sections 3, 4 and 5 of Section 407 Cr.P.C., as applicable in relation to an application, to the Sessions Judge, for an order of transfer under sub-Section (1) of Section 408 Cr.P.C., means the procedure to be followed, is the same. Then the only portion is, Sub-Section (6) of Section 407 Cr.P.C., and the same is also applicable to Section 408 Cr.P.C. When sub-Section (6) of Section 407 Cr.P.C., is applied or read into Section 408(3) Cr.P.C., then Sub-Section (3) of Section 408 Cr.P.C., has to be read that if the Sessions Judge is satisfied that it is necessary so to do in the interests of justice, order that, pending the disposal of the application, the proceedings in the subordinate Court shall be stayed, on such terms as the Sessions Court may think fit to impose. The word, "High Court" cannot be read as forming part of sub-Section (3) of Section 408 Cr.P.C., and therefore, it would be appropriate to read, "High Court", as Sessions Judge, in sub-Section (3) of Section 408(1) Cr.P.C.

By incorporating sub-Sections 3 to 7 of Section 407 Cr.P.C., to Section 408 Cr.P.C., the Legislature has only stated that the same procedure has to followed. The Legislature has also conferred on the Sessions Judge, to stay the proceedings of the subordinate or lower Court. Again both the proviso to Section 407 Cr.P.C., and Section 408(1) would refers only to a "case" and not an "appeal".

Even taking it for granted that sub-Section 407(c)(ii) is incorporated, to Section 408 Cr.P.C., in the light of the proviso to Section 407(2), where, reference has been made only to a case, and not an appeal, this Court is of the view that no appeal can be transferred by the Sessions Judge, from one Criminal Court to another Criminal Court of equal jurisdiction, under Section 408 Cr.P.C., and it can be recalled or withdrawn, before the commencement of hearing.

By legal fiction, the Sessions Court can, at best, (1) transfer any particular case from a Criminal Court, subordinate to its authority, to an equal, subordinate Court or (2) if such case, is pending on the lower Court, to any superior Court, and (3) not a case pending in the Court, exercising equal jurisdiction.

Powers conferred on the High Court, under Section 407 Cr.P.C., cannot be imported to Section 408 Cr.P.C., not conferred on the Sessions Judge, by High Court. By legislative process, the Sessions Court can only stay the proceedings in the subordinate Court.

Proviso to Section 407 Cr.P.C., which according to the petitioners, enables them to prefer an application for transfer of an appeal from criminal Court to another. Section 407(c)(ii), confers power on the High Court, to transfer particular a case or appeal, or class of cases or appeals, from a Criminal Court subordinate to the High Court''s authority to any other such Criminal Court of equal or superior jurisdiction. Whereas, proviso to Section 407(2), speaks only about a case and not an appeal, and therefore, the proviso has to be interpreted, in such a way, to mean that there is an exception to what is stated in the main enactment, and it is well known that a proviso to a Section cannot be interpreted, as the main section itself.

The normal rule applied, while reading a Section, with a proviso is that the proviso is not normally construed, as taking away the right conferred in the main Section, but in the light of the specific omission in the proviso, regarding appeals, proviso to Section 407(2) has to be confined only to the matter dealt with, and not any other, specifically excluded or by implication stand excluded.

In my humble opinion, what the Legislature has intended, while enacting Section 408(1) Cr.P.C., with reference to the proviso to Section 407(2) Cr.P.C., is only a case and not an appeal. Proviso to Section 407(2) Cr.P.C., cannot be expanded to cover appeals also.

In Ram Narain Sons Ltd. Vs. Asst. Commissioner of Sales Tax and Others, AIR 1955 SC 765 : (1955) 2 SCR 483 : (1955) 6 STC 627 , the Supreme Court has held that,

"that a proviso to a particular provision of a statute only embraces the field which is covered by the main provision. It carves out an exception to the main provision to which it has been enacted as a proviso and to no other."

Thus, by omitting the word "appeal" in the proviso, Legislature has drafted the proviso to Section 407 Cr.P.C., carving out a clear exception to the main Section. Scope of the proviso to Section 407 Cr.P.C., is limited only to a case and not an appeal. Proviso to Section 407 Cr.P.C. Is intelligible and throws light on the exception to the main Section. Lord Russel in Jennings v. Kelly reported in (1939) 4 All.ER 464, said thus,

"Although a proviso may well be incapable of putting upon preceding words a construction which they cannot possibly bear, it may without doubt operate to explain which of the two or more possible meanings is the right one to attribute to them. One must, however, read the whole clause before attempting to construe any portion of it, and a perusal of the proviso fixes the meaning of the words which precede it."

Lord Right in the same judgement, said that,

"It is said that, where there is a proviso, the former part which is described as the enacting part, must be construed without reference to the proviso. No doubt, there may be cases in which first part is so clear or unambiguous as not to admit in regard to the matters which are there clear any reference to any other part of the Section. The proviso may simply be an exception of what is clearly defined in the first part, or it may be some qualification not inconsistent with what is expressed in the first part."

Reading of Section 407 Cr.P.C., in its entirety, indicates the intention of the Legislature is to exclude appeals, from the purview of the proviso to Section 407(2) Cr.P.C., a part from the main Section and but for such exclusion, it would continue to be a part of the proviso also. Reference can also made to, what Lord Thankerdon observed in Province of Bombay vs. Hormusji ManekjiAIR 1947 200 (Privy Council) , as follows:

"It is a familiar principle of statutory construction that where you find in the same section express exceptions from the operative part of the section, it may be assumed, unless it otherwise appears from the language employed, that these exceptions were necessary, as otherwise the subject-matter of the exceptions would have come within the operative provisions of the section. There are four exceptions in the proviso to Section 4, which are clearly general exceptions to the operative provisions of the section."

Section 408 Cr.P.C., states that "Power of Session Judge to transfer cases and appeals". Heading of Section 409 Cr.P.C., is "withdrawal of cases and appeals by Sessions Judge". Though the heading of Section 408 speaks about transfer of cases and appeals, a close scrutiny of sub-Section, makes it clear that the Legislature has not included the word, "appeal" in the body of Section 408 Cr.P.C., in contra distinction to Section 409 Cr.P.C., where the Legislature has employed both the words, "any case and appeal".

In Refugee Co-operative Housing Society Ltd., New Delhi v. Harbans Singh Bhasin reported in AIR 1982 Del. 335, the Court that, "Headings prefixed to a section may be read along with the enacting provisions of the section to resolve any doubt-heading cannot prevail when intention of the Legislature can be gathered by reference to other sections."

In Raichurmatham Prabhakar and Another Vs. Rawatmal Dugar, AIR 2004 SC 3625 : (2004) 4 JT 495 : (2004) 4 SCALE 452 : (2004) 4 SCC 766 : (2004) 3 SCR 1130 : (2004) AIRSCW 7265 : (2004) AIRSCW 3591 : (2004) 7 Supreme 196 , the Supreme Court held that, "The view is now settled that the Headings or Titles pre-fixed to sections or group of sections can be referred to in construing an Act of the Legislature. But conflicting opinions have been expressed on the question as to what weight should be attached to the Headings or Titles. According to one view, the Headings might be treated as preambles to the provisions following them so as to be regard as giving the key to opening the mind of the draftsman of the clauses arranged thereunder. According to the other view, resort to Heading can only be taken when the enacting words are ambiguous. They cannot control the meaning of plain words but they may explain ambiguities . (Principles of Statutory Interpretation by Justice G.P. Singh, Ninth Edition, v. 2004, pp. 152, 155). It is permissible to assign the heading or Title of a section a limited role to play in the construction of statutes. They may be taken as very broad and general indicators of the nature of the subject-matter dealt with thereunder. The Heading or Title may also be taken as a condensed name assigned to indicate collectively the characteristics of the subject-matter dealt with by the enactment underneath; though the name would always be brief having its own limitations. In case of conflict between the plain language of the provision and the meaning of the Heading or Title, the Heading or Title would not control the meaning which is clearly and plainly discernible from the language of the provision thereunder."

In Mahesh Housing Co-operative Society Ltd. Vs. State of West Bengal and Others, (2004) 1 CHN 10 : 108 CWN 755 , the Court held that, "That the headings constitute an important part of the Act and may be read not only as explaining the sections, which immediately follow them, but the headings may be read as preamble to a statute and may be looked for that purpose to explain the enactment. The same can be considered as key to the construction of section, which follow them."

In the light of the decisions, stated supra, when there is a clear omission of the word, "appeal" in Section 408(1) of the Code, an appeal cannot be transferred by the Sessions Judge, in exercise his powers under Section 408 Cr.P.C., from the Court of an Additional Sessions Judge, after the commencement of the hearing.

The next contention raised by the learned counsel for the petitioners is that when the Hon''ble Division Bench decisions of other High Courts, on the issue were brought to the attention of the learned Principal Sessions Judge, Chennai, he should have considered the same, ignoring the learned single Judge''s decision of the Madras High Court in Devarasu''s case. According to the learned counsel for the petitioners, the Hon''ble Division Bench judgments of other High Courts, on the issue, are binding on the subordinate Courts, within the territorial jurisdiction of this Court.

While rejecting the case of the petitioners for transfer of appeals, on the basis of the judgment in Devarasu''s case (cited supra), rendered by this Court, which is stated to be contrary, to the views expressed by other High Courts, including Division Bench judgments, the learned Principal and Sessions Judge, Chennai, has considered a Full Bench decision of this Court in R. Rama Subbarayalu Reddiar Vs. Rengammal, (1962) ILR (Mad) 1001 : (1962) 75 LW 452 : (1962) 2 MLJ 318 , wherein, at Paragraph 4 , the Hon''ble Full Bench of this Court, held as follows:

"4. Before we deal with the question, involved in the appeal, it is necessary to examine the propriety of the procedure adopted by the learned District Judge. The normal rule as to the precedents is, that subordinate Courts are bound in the absence of any decision of the Supreme Court, to follow the decisions of the High Court to which they are subordinate. Where, however, there is a conflict between two decisions of the High Court, the rule to be adopted is as follows:-- Where the conflict is between the judgment of a single Judge and a Bench or between a Bench and a larger Bench, the decision of the Bench or the larger Bench as the case may be, will have to be followed. But where the conflict is between two decisions both pronounced by a Bench consisting of the same number of Judges, and the subordinate Court after a careful examination of the decision came to the conclusion that both of them directly apply to the case before it, it will then be at liberty to follow that decision which seems to it more correct, whether such decision be the later or the earlier one. To enable the subordinate Court to do so, the two apparently conflicting decisions must directly relate to and expressly decide the question that arises before the Court; otherwise a subordinate Court should follow that ruling which specifically deals with the point. It will not be open to it for example to follow the other decision which only impliedly or indirectly or by way of a mere observation gave expression to a contrary view. It follows that the learned District Judge in the present case was not justified in refusing to follow the decision referred in Francis v. Varghese, for his preference a decision which impliedly decided the point as against the one that directly did so is neither consistent with established rules relating to precedents nor conducive to orderly administration of justice."

The Madras High Court in Devarasu''s case, has held that under Section 408 Cr.P.C., a Sessions Judge cannot transfer a case from one Additional Sessions Judge Court to another, which is not subordinate or lower. Whereas, the High Court of Kerala in Surendra''s case (cited supra) and Madhya Pradesh High Court in Re: District and Sessions Judge''s case (cited supra), held that a case can be transferred from the Court of equal jurisdiction.

In Jamuna Devi Vs. District and Sessions Judge and Others, (2007) 1 GLR 560 : (2007) 1 GLT 148 , a Hon''ble Division Bench of the Gauhati High Court, has held that,

"the learned Sessions Judge had no authority or jurisdiction to withdraw the case as the power under Section 409(2) can be exercised at any time, before the trial court of the case or hearing of appeal has commenced. We find that the learned Sessions Judge did not exercise any power under Section 409 Cr.P.C."

On the aspect of binding precedent, on the same High Court or other High Courts, let me consider some of the decisions,

(i) Halsbury''s Laws of England sets out only three exceptions to the rule of precedents and the following passage is found in paragraph 578 of Vol. 26, Fourth Edition.

... There are, however, three and only three, exceptions to this rule; thus (1) the Court of Appeal is entitled and bound to decide which of two conflicting decisions of its own it will follow; (2) it is bound to refuse to follow a decision of its own which although not expressly overruled, cannot, in its opinion stand with a decision of the House of Lords and (3) the Court of Appeal is not bound to follow a decision of its own if given per incuriam.

(ii) In M. Subbarayudu and Others Vs. The State, AIR 1955 AP 87 : (1955) CriLJ 770 , a Full Bench of the Andhra Pradesh High Court held that the binding nature of the precedents of one Court on another depends upon the fact whether such Courts are Courts of co-ordinate jurisdiction or not and coordinate Jurisdiction does not connote the same idea as concurrent jurisdiction or simultaneous jurisdiction. The connotation of the word ''co-ordination'' is not the same as that of the words ''concurrence or simultaneity''. Simultaneity or coexistence is not a necessary ingredient of coordination. Co-ordination is more comprehensive and takes in successive acts of the same status or level.

(iii) In Anand Municipality Vs. Union of India and Others, AIR 1960 Guj 40 : (1960) GLR 82 , a Full Bench of the Gujarat High Court applied the principles of binding effect, declared in M. Subbarayudu''s case (cited supra).

(iv) A Full Bench of the Gujarat High Court in State of Gujarat Vs. Gordhandas Keshavji Gandhi and Others, AIR 1962 Guj 128 : (1962) 3 GLR 269 , has considered the question as to binding nature of judicial precedents. K.T. Desai, C.J. in his judgment, observed:

"Judicial precedents are divisible into two classes, those which are authoritative and those which are persuasive. An authoritative precedents is one which judges must follow whether they approve of it or not. It is binding upon them. A persuasive precedent is one which the Judges are under no obligation to follow, but which they will take into consideration and to which they will attach such weight as they consider proper. A persuasive precedent depends for its influence upon its own merits.... A decision of a High Court Judge of a State is regarded as binding on all the subordinate courts in that State. A decision of a Division Bench of a High Court is regarded as binding on Judges of the same High Court sitting singly in the High Court. A decision of a Full Bench, i.e. a Bench of at least 3 Judges of a High Court is considered binding on all Division Benches of the same High Court.... A decision of a High Court Judge sitting singly is not legally binding on another Judge of the same High Court sitting singly. So also a decision of a Division Bench of a High Court is not legally binding on another Division Bench of the same High Court. A decision of a Full Bench is not legally binding on another Full Bench of the same Court. One Judge of a High Court has however, no right to overrule the decision of another Judge of the same High Court nor has one Division Bench of a High Court the legal right to overrule another decision of a Division Bench of the same High Court.... The rule that a court should follow the decision of another Court of co-ordinate jurisdiction is subject however to several exceptions which have been dealt with in Salmond''s jurisprudence, 11th Edn. at page 199 to 217.

(1) A decision ceases to be binding if a statute or statutory rule inconsistent with it is subsequently enacted, or if it is reversed or overruled by a higher court.

(2) A precedent is not binding if it was rendered in ignorance of a statute or a rule having the force of statute.

(3) A precedent loses its binding force if court that decided it overlooked an inconsistent decision of higher court.

(4) xx xx xx xx xx

(5) Precedents sub silentio are not regarded as authoritative. A decision passed sub silentio when the particular point of law involved in the decision is not perceived by the Court or present to its mind."

(v) In Eknath Shankarrao Mukkawar Vs. State of Maharashtra, AIR 1977 SC 1177 : (1977) CriLJ 964 : (1977) 3 SCC 25 : (1977) 3 SCR 513 , it was held that judicial discipline as well as decorum suggested only one course when a Bench wanted to differ from the decision of a co-ordinate court and that was to refer to a larger Bench.

(vi) In Ayyaswami Gounder and Others Vs. Munnuswamy Gounder and Others, AIR 1984 SC 1789 : (1984) 2 SCALE 437 : (1984) 4 SCC 376 : (1985) 1 SCR 808 : (1985) 17 UJ 247 , it was held that a single Judge of a High Court not agreeing with earlier decision of single Judge of the same Court, should refer the matter to a larger Bench and propriety and decorum do not warrant his taking a contrary view.

(vii) In Sonal Sihimappa Vs. State of Karnataka and Others, AIR 1987 SC 2359 , it was observed, In a precedent-bound judicial system, binding authorities have got to be respected and the procedure for developing the law has to be one of evolution.

(viii) The Hon''ble Chief Justice Pathak, speaking for the Constitution Bench, in Union of India (UOI) and Another Vs. Raghubir Singh (Dead) by Lrs. Etc., AIR 1989 SC 1933 : (1989) 66 CompCas 466 : (1989) 178 ITR 548 : (1989) 2 JT 427 : (1989) 1 SCALE 1337 : (1989) 2 SCC 754 : (1989) 3 SCR 316 : (1989) 74 STC 313 , said:

"The doctrine of binding precedent has the merit of promoting a certainty and consistency in judicial decisions, and enables an organic development of the law, besides providing assurance to the individual as to the consequence of transactions forming part of his daily affairs. And, therefore, the need for a clear and consistent enunciation of legal principle in the decisions of a court."

(ix) In Sundarjas Kanyalal Bhathija and others Vs. The Collector, Thane, Maharashtra and others, AIR 1991 SC 1893 : AIR 1990 SC 261 : (1990) 68 CompCas 20 : (1989) 25 ECR 129 : (1990) 183 ITR 130 : (1989) 3 JT 57 : (1989) 2 SCALE 7 : (1989) 3 SCC 396 : (1989) 3 SCR 405 : (1989) 2 UJ 485 , the law is stated thus:

"17. It would be difficult for us to appreciate the judgment of the High Court. One must remember the pursuit of the law, however glamorous it is, has its own limitation on the Bench. In a multi-Judge Court, the Judges are bound by precedents and procedure. They could use their discretion only when there is no declared principle to be found, no rule and no authority. The judicial decorum and legal propriety demand that where a learned single Judge or a Division Bench does not agree with the decision of a Bench of co-ordinate jurisdiction, the matter shall be referred to a larger Bench. It is subversion of judicial process not to follow this procedure."

(x) In Philip Jeyasingh Vs. The Joint Registrar of Co-operative Societies and Others, (1992) 1 LW 216 : (1992) 2 MLJ 309 , a Full Bench of this Court, held as follows:

"49. The ratio decidendi of a decision may be narrowed or widened by the judges before whom it is cited as a precedent. In the process the ratio decidendi which the judges who decided the case would themselves have chosen may be even different from the one which has been approved by subsequent judges. This is because Judges, while deciding a case will give their own reasons but may not distinguish their remarks in a right way between what they thought to be the ratio decidendi and what were their obiter dicta, things said in passing having no binding force, though of some persuasive power. It is said that "a judicial decision is the abstraction of the principle from the facts and arguments of the case". A subsequent judge may extend it to a broader principle of wider application or narrow it down for a narrower application."

(xi) A Hon''ble Division Bench of Bombay High Court in Commissioner of Income Tax Vs. Thana Electricity Supply Ltd., (1993) 112 CTR 356 : (1994) 206 ITR 727 , held as follows:

"(a) The law declared by the Supreme Court being binding on all courts in India, the decisions of the Supreme Court are binding on all courts, except, however, the Supreme Court itself which is free to review the same and depart from its earlier opinion if the situation so warrants. What is binding is, of course, the ratio of the decision and not every expression found therein.

(b) The decisions of the High Court are binding on the subordinate courts and authorities or Tribunals under its superintendence throughout the territories in relation to which it exercises jurisdiction. It does not extend beyond its territorial jurisdiction.

(c) The position in regard to the binding nature of the decisions of a High Court on different Benches of the same court may be summed up as follows:

(i) A single judge of a High Court is bound by the decision of another single judge or a Division Bench of the same High Court. It would be judicial impropriety to ignore that decision. Judicial comity demands that a binding decision to which his attention had been drawn should neither be ignored nor overlooked. If he does not find himself in agreement with the same, the proper procedure is to refer the binding decision and direct the papers to be placed before the Chief Justice to enable him to constitute a larger Bench to examine the question (see Food Corporation of India and Another Vs. Yadav Engineer and Contractor, AIR 1982 SC 1302 : (1982) 2 SCC 499 ).

(ii) A Division Bench of a High Court should follow the decision of another Division Bench of equal strength or a Full Bench of the same High Court. If one Division Bench differs from another Division Bench of the same High Court, it should refer the case to a larger Bench.

(iii) Where there are conflicting decisions of courts of co-ordinate jurisdiction, the later decision is to be preferred if reached after full consideration of the earlier decisions.

(d) The decision of one High Court is neither binding precedent for another High Court nor for courts or Tribunals outside its own territorial jurisdiction. It is well settled that the decision of a High Court will have the force of binding precedent only in the State or territories on which the court has jurisdiction. In other States or outside the territorial jurisdiction of that High Court it may, at best, have only persuasive effect."

(xii) In Government of West Bengal Vs. Tarun K. Roy and Others, (2003) 9 JT 130 : (2004) 1 LLJ 421 : (2004) 1 SCC 347 : (2004) SCC(L&S) 225 , as regards binding precedent of a judgment, the Supreme Court at paragraph 26, has observed as follows:-

"26..........If rule of law is to be followed, judicial discipline demands that the court follows its earlier binding precedent. The Calcutta High Court itself has rejected such a plea. The matter is pending in appeal. An order passed to the contrary by another learned Single Judge in ignorance of the earlier binding precedent by itself would not constitute a binding precedent and may be held to have been rendered per incuriam.

(xiii) In Raman Gopi Vs. Kunju Raman Uthaman, (2009) 4 KLT 414 , a Full Bench of the Kerala High Court held that when a Bench of higher number of judges of the concerned court decided a question on the subject, then that is binding on the Bench of co-equal judges or lesser number of judges of that court. Further, it is settled law that, if a decision has been rendered by the same High Court, then any decision rendered by any other High Court is not binding on the other High Court but it has got only persuasive value.

(xiv) The Hon''ble Division Benches of Bombay, Delhi and Himachal Pradesh have applied the said principles in the matters, arising out of disputes, relating to Income-Tax.

Consolidated Pneumatic Tool Co. (India) Ltd. Vs. Commissioner of Income Tax, (1994) 120 CTR 22 : (1994) 209 ITR 277 ;

Geoffrey Manners and Co. Ltd. Vs. Commissioner of Income Tax, (1996) 136 CTR 169 : (1996) 221 ITR 695 : (1996) 89 TAXMAN 287

Taylor Instrument Co. (India) Ltd. Vs. Commissioner of Income Tax, (1999) 153 CTR 295 : (1998) 232 ITR 771 : (1998) 99 TAXMAN 155

In the light of the Full Bench judgment of the Kerala High Court in Raman Gopi''s case (cited supra), the Full Bench decision of our High Court in R. Rama Subbarayalu Reddiar''s case (cited supra), the decision made in Surendra Kumar''s case (cited supra), cannot be made applicable to the subordinate Courts in Tamil Nadu and it is also not binding on the Madras High Court.

It is also worthwhile to consider Sections 397 and 401 of the Code, as to when the High Court and the Sessions Judge exercise the power of the superintendence over the Courts subordinate to it. The said Sections are extracted hereunder:

"397. Calling for records to exercise powers of revision.

(1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order,- recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record. Explanation. - All Magistrates whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this sub- section and of section 398.

(2) The powers of revision conferred by sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding.

(3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them.

High Court''s Powers of revisions.

(1) In the case of any proceeding the record of which has been called for by itself or Which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by sections 386, 389, 390 and 391 or on a Court of Session by section 307 and, when the Judges composing the Court of revision are equally divided in opinion, the case shall be disposed of in the manner provided by section 392.

(2) No order under this section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence.

(3) Nothing in this section shall be deemed to authorise a High Court to convert a finding of acquittal into one of conviction.

(4) Where under this Code an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed.

(5) Where under this Code, an appeal lies but an application for revision has been made to the High Court by any person and the High Court Is satisfied that such application was made under the erroneous belief that no appeal lies thereto and that it is necessary in the interests of justice so to do, the High Court may treat the application for revision as a petition of appeal and deal with the same accordingly."

As per Section 406 of the Act, the High Court, in exercise of its power, may order, that any particular case or appeal, or class of cases or appeals, be transferred from a Criminal Court subordinate to its authority to any other such Criminal Court of equal or superior jurisdiction and that any particular case be committed for trial to a Court of Session.

As per sub-Section (2), the High Court may act either on the report of the lower Court, or on the application of a party interested, or on its own initiative. The qualifying expressions for exercise of power under Section 407 Cr.P.C., are that it should be a Criminal Court subordinate to its authority and it may act either on the report of the lower Court, or on the application of a party interested or on its own motion. The High Court of any State, cannot exercise its powers, under Sections 397, 401, 407 Cr.P.C., over any Court, outside its territorial jurisdiction and therefore, the Court, to which it issues any order, under Section 407 of the Code, should be subordinate thereto. Needless to state that Courts in Tamil Nadu are not subordinate to any other High Court, except Madras High Court and thus, they are bound to respect and follow the decisions of this Court.

Admittedly, there are contrary views expressed by other High Courts. As per the Law of Precedents, the decision of a High Court, shall be binding on the subordinate Courts, within its territorial jurisdiction and insofar as judgments of other High Courts are concerned, they would be only of persuasive value, on the Courts, functioning under different territorial jurisdiction.

In State of West Bengal Vs. Gangadhar Dawn and Others, (1989) CriLJ 563 , a Hon''ble Division Bench of Calcutta High Court considered a revision application, against the order of the learned Sessions Judge, allowing an application, filed by an accused, under Section 408 Cr.P.C., filed for transferring a case from the file of an Additional Sessions Judge, after the trial of the case had begun. At Paragraphs 4, 5 and 6 of the judgment, the Division Bench held as follows:

"4. There appears to be some apparent contradiction between Sub-section (1) of Section 408 and Sub-section (2) of Section 409; but in fact, there is none. It is possible to make a harmonious construction of these two sections.

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 or the Sub-Divisional Judicial Magistrate, Section 408 refers to those cases and has nothing to do 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 Magistrate. Section 409 relates to those transferred cases and Section 408 relates to the cases originally filed in the criminal Courts. That is why, we noted that there is no apparent incongruity between the provisions of these two sections.

Now, the Sessions Judge has exercised his power under Section 408 in respect of the case transferred from the Court of Sessions Judge to the Court of the Additional Sessions Judge who already began the trial thereof. In view of the provision of Sub-section (2) of Section 409 which has already been quoted by us, he has no such power when the trial already commenced."

While dealing with a similar issue on transfers, the Hon''ble Division Bench of Calcutta High Court In Re: Smt. Tarulata Kala, (1997) CriLJ 1401 , held as follows:

"6. I have considered the submission of Mr. Roy and the materials as produced before me in the revisional application. I find no conflict in the decision of Radhey Shyam (supra). The conflict regarding them is interpretation of the same. Section 408(1) reads as follows:-

"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." (sic). (Underscoring is by me).

Sub-section (2) of Section 409 reads as under:-

"At any time before the trial of the case or the hearing of the appeal has commenced before the Additional Sessions Judge, a Sessions Judge may recall any case or appeal which he has made over to any Additional Sessions Judge." (sic). (The underscoring is by me).

So, both the sections speak of two stages, one up to the stage of case and another where the case steps into the stage of trial, that is, with the framing of the charge. The case under reference of the Allahabad High Court only speaks of transfer of the sessions case and not regarding trial. No doubt, the two sections are separate and independent and one is not controlled 7 or regulated by the other. But sub-section (2) of Section 409 specifically points out two stages in a case, that is, one from pretrial which is termed as ''case'' and very often one comes across with the expression ''till the trial commences before the Sessions Judge'' shows that sessions case and sessions trial is not the same. Once the trial commenced, the Sessions Judge has not the power to withdraw and transfer the trial to some other court of another Sessions Judge or Additional Sessions Judge. But before that stage of the trial, the Sessions Judge has every power to withdraw the Sessions Case either upon an application or suo motu and can transfer it to another court of session. In that there is no military between Section 408(1) and Section 409(2) of the Cr.P.C. The Legislature in its wisdom has used two terminology in Section 408(1) and 409(2) namely, the pre-trial stage of Sessions Case and trial stage. There is no doubt that the learned Sessions Judge has power to withdraw the Sessions case to another Court in pretrial stage, but once the trial commences he has no power to transfer the case to another court of Sessions Judge."

In the light of the decision of the Calcutta High Court in Gangadhar Dawn''s case (cited supra) and Re: Smt. Tarulata Kala''s case (cited supra), can it be said that the decision of the Hon''ble Bench of Calcutta High Court is binding all the subordinate Courts, within the territorial jurisdiction of Kerala, Madhya Pradesh and Gauhati High Courts, or for that matter, can it be said that the decisions of the Kerala, Madhya Pradesh and Gauhati High Courts, are binding on the subordinate Courts? The answer is a clear ''No'', in view of Article 227 of the Constitution of India, which states that,

"(1) Every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction."

In East India Commercial Co. Ltd.,Calcutta and Another Vs. The Collector of Customs, Calcutta, AIR 1962 SC 1893 : (1983) 13 ELT 1342 : (1963) 3 SCR 338 , decided on 04.05.1962, the majority view of the Apex Court is that,

"Under Art. 227 it has jurisdiction over all courts and tribunals throughout the territories in relation to which it exercise jurisdiction. It would be anomalous to suggest that a tribunal over which the High Court has superintendence can ignore the law declared by that court and start proceedings in direct violation of it. If a tribunal can do so, all the subordinate courts can equally do so, for there is no specific, provision, just like in the case of Supreme Court, making the law declared by the High Court binding on subordinate courts. It is implicit in the power of supervision conferred on a superior tribunal that all the tribunals subject to its supervision should conform to the law laid down by it. Such obedience would also be conducive to their smooth working: otherwise there would be confusion in the administration of law and respect for law would irretrievably suffer. We, therefor, hold that the law declared by the highest court in the State is binding on authorities or tribunals under its superintendence, and that they cannot ignore it."

In the light of the law laid down by the Apex Court in East India Commercial case (cited supra), which is binding on all Courts in the Country, by virtue of Article 141 of the Constitution of India, can it be argued that the learned Principal Sessions Judge, has committed a manifest illegality in dismissing the transfer applications, as not maintainable, by referring to the Full Bench decision of this Court in R. Rama Subbarayalu Reddiar Vs. Rengammal, (1962) ILR (Mad) 1001 : (1962) 75 LW 452 : (1962) 2 MLJ 318 , the law laid down by this Court on precedents, to be followed, by the subordinate Courts to the Madras High Court, established under Article 215 of the Constitution of India, considering the exercise the power of superintendence over, all Courts and Tribunals, within the territorial jurisdiction of the Madras High Court, under Article 227 of the Constitution of India, the answer is a clear "No". A High Court may consider the decisions of other High Courts, decided on a point of law, but under the Constitutional scheme, each High Court has an independent power and jurisdiction to decide such question of law.

As regards the submission of Mr. S. Prabhakaran, learned counsel for the petitioner that the decision of the Madras High Court in Devarasu''s case, decided by a learned single Judge of this Court, is not binding on the subordinate Courts, within the territorial jurisdiction of this Court, but the subordinate Courts should follow only the judgments of other High Courts, decided by a larger Bench of any other High Court, the answer lies in the decision of the Apex Court in East India Commercial Co. Ltd.,Calcutta and Another Vs. The Collector of Customs, Calcutta, AIR 1962 SC 1893 : (1983) 13 ELT 1342 : (1963) 3 SCR 338 and other decisions, stated supra.

Under the Constitutional Scheme, each High Court established under Article 215 of the Constitution of India, and exercising powers under Articles 226 and 227 of the Constitution of India, and with reference to the Code of Criminal Procedure, Sections 397, 398 and 408, is empowered to decide a question of law, raised before each High Court. If the arguments of Mr. S. Prabhakaran, learned counsel for the petitioner, has to be accepted, then the law declared by the Madras High Court, can be ignored by the Subordinate Courts, within the jurisdiction of this Court. In the present revision cases, it is also the argument of Mr. S. Prabhakaran, learned counsel for the petitioners that this Court is also bound by the judgments of other High Courts, because the composition of the Bench is larger. Proposition advanced by the learned counsel for the petitioners, on the law of precedents, is against the Constitution of India. The Apex Court has only recognised the binding effect of its decision on all Courts, under Article 141 of the Constitution of India, which states that the law declared by the Apex Court, shall be binding on all Courts and Tribunals, within the territory of India, including all the High Courts.

Framers of the Constitution of India, in their wisdom, are clear, in engrafting Articles 227 of the Constitution of India, which starts with an opening sentence, "Every High Court shall have superintendence over all Courts and tribunals throughout the territories in relation to which it exercises jurisdiction".

Of course, in the matters of administration of justice and public policy, "like cases should be decided alike", to avoid any kind of divergent views expressed by High Courts, but, can it be said and argued that a decision rendered by one High Court is binding on other High Court, or the Courts subordinate to its authority, in my humble opinion, it is clear "No".

Under the Constitutional Scheme, I am empowered to decide, a question of law, independently of what the other High Courts, have decided and for that matter, the decisions of the other High Courts, may have a persuasive value and they do not a binding precedent. It is true that there must be certain degree of certainty in the law, to be interpreted and applied to all the persons, to which, the Constitution of India, extends, but that principle, does not mean that a High Court is bound by the decision of another High Court, whether it is of the same strength or of a higher composition.

No doubt, Judicial Precedents, across the country should maintain uniformity, and that there should be harmony in deciding a point of law, to be followed, but that does not mean that a High Court cannot decide a question of law, on its own, but have to simply follow the decision, decided by another High Court. In a given case, when a Central law is interpreted, every High Court is empowered to independently consider, the question of law, dehors the decisions of other High Court.

If the argument of Mr. S. Prabhakaran, learned counsel for the petitioners is accepted, then, if even a law, is decided erroneously by another High Court, all the High Courts, including the Subordinate Courts, throughout the Country, have to follow the same, and that argument is not only against the Constitutional Scheme, but would be against the principles of binding precedent, followed by the Courts, across the Country, in the light of the Article 227 of the Constitution of India and with reference to Sections 397, 398 and 401 and in particular, to the case on hand, Sections 406 to 412 of the Code of Criminal Procedure.

Considering the Hierarchy of Courts and the decisions, which the subordinate Courts are bound to follow, as per the decision in East India Commercial Co. Ltd.,Calcutta and Another Vs. The Collector of Customs, Calcutta, AIR 1962 SC 1893 : (1983) 13 ELT 1342 : (1963) 3 SCR 338 and the subordinate Courts take a different view, then the working of the hierarchical system, as per the scheme of Constitution of India, would be in chaos.

Text and the context of the words, "lower Court", in Section 408(2) Cr.P.C., cannot be deleted or sacrificed. When the language of Section 408 is capable of bearing more than one construction, in selecting the true meaning and regard must be had to the consequences resulting from adopting the alternative construction. A construction that results in hardship, serious inconvenience, injustice, absurdity or anomaly or which leads to inconsistency or uncertainty and friction in the system which the statute purports to regulate has to be rejected and preference should be given to that construction, which avoids such results.

Law codified should be interpreted and applied in the manner, without being inconsistent with the smooth working of the system, which the Code intends to regulate the statutory scheme and to avoid any friction or confusion in the working of the system. It should be the endeavour of the Court that there is harmonious construction of the provisions of the Code.

Having regard to the remedy under Section 407 Cr.P.C., if the party interested, for the reasons stated in the said provision makes an application to High Court to transfer any case or an appeal from one Criminal Court to another, of the same jurisdiction or superior Court, the High Court, in exercise of the powers under Section 407 of the Code, would consider, as to whether, the party interested has made out a case, that any particular case or appeal or class of cases or appeals, pending on the file of any Courts subordinate to its authority, require to be transferred to any other Criminal Court of equal jurisdiction or superior Court. But if the Sessions Judge has to exercise the said power of transfer, the party interested, may after the commencement of the trial or hearing of the appeal, may make allegations against an Additional Sessions Judge, who is trying a case or on an appeal, made over to him, in the middle of the trial or hearing of an appeal or for any other cause, may attempt to protract the trial.

Provisions of the Code of Criminal Procedure, indicate that an Additional Sessions Judge, exercises equal judicial jurisdiction, on any matter, made over to him, whether it is a case or an appeal, as the case may be. If the party interested, makes an allegation against the Additional Sessions Judge, in the conduct of the proceedings, whether it be a case or an appeal, whether the Sessions Judge, is administratively superior to look into the allegations? In my humble view, he cannot do so. While that be so, can it be said that an Additional Sessions Judge is subordinate to the Sessions Judge, or the Additional Sessions Court is a lower Court? My answer would be "No".

Looking at any angle, I am unable to persuade myself that the Court of an Additional Sessions Judge is a Court, subordinate or lower, to the Sessions Judge. Now look at from the view of the High Court. As per Article 227 of the Constitution of India, all the Courts, within its territorial jurisdiction, are subordinate to its authority. The High Court can exercise its administrative powers, in case of any exigency or the judicial power, under Section 407 of the Code, in the matter of transfer.

Considering the scheme of the Code, an Additional Sessions Judge, exercises the same jurisdiction, while trying a case or an appeal, as the case may be. When the Sessions Judge retains or makes any case or appeal, to be tried before himself or makes over a case or any appeal, under Section 409(2) Cr.P.C., to the Additional Sessions Judges, both the Sessions Judge and the Additional Sessions Judge, exercise the same powers and follow the same procedure, while trying a case or an appeal, as the case may be.

Assuming that in a given case, the Additional Sessions Judge, has not followed the procedure, prescribed in the Code of Criminal Procedure, and if any averments are made, to that effect in an application filed under Section 408(1) of the Code, by construing that an Additional Sessions Judge as inferior or subordinate or lower, in the matter of exercising judicial functions, is it open to the Sessions Judge to exercise his supervisory powers, on the judicial side? In my humble opinion, under the Constitutional Scheme of Article 227 or under Section 408 Cr.P.C., he cannot.

No doubt, on the administrative side, as a Sessions Judge of a Sessions Division, he can issue directions, subject to the restraint and limitations, as provided for, in Section 409(2) Cr.P.C. Viewing from any angle, as to the administrative or judicial supremacy of the Sessions Judge, over an Additional Sessions Judge and as to when, he can exercise his judicial powers, vis-a-vis, the High Court, in the matter of transfer of a case, from one Criminal Court to another Criminal Court, in my view, the powers conferred should be circumscribed only, to the Constitutional scheme, the system, hierarchy and the provisions of the Code and therefore, the provisions have to be interpreted, accordingly.

In The Collector of Customs, Baroda Vs. Digvijaysinhji Spinning and Weaving Mills Ltd., AIR 1961 SC 1549 : (1983) 3 ECR 2163 : (1983) 13 ELT 1337 : (1962) 1 SCR 896 , the Supreme Court, held that "It is one of the well-established rules of construction is that if the words of a statute are in themselves precise and unambiguous, no more is necessary than to expound those words in their natural and ordinary sense, the words themselves in such case best declare the intention of the Legislature. It is equally well settled principle of construction that where alternative constructions are equally open that alternative is to be chosen which will be consistent with the smooth working of the system which the statute purports to be regulating; and that alternative is to be rejected which will introduce uncertainty, friction or confusion into the working of the system."

In Maharashtra State Board of Secondary and Higher Secondary Education and Another Vs. Paritosh Bhupeshkumar Sheth and Others, AIR 1984 SC 1543 : (1984) 2 SCALE 30 : (1984) 4 SCC 27 : (1985) 1 SCR 29 : (1984) 16 UJ 1107 , the Supreme Court held that, "It is equally important that the Court should also, as far as possible, avoid any decision or interpretation of a statutory provision, rule or bye-law which would bring about the result of rendering the system unworkable in practice."

In Suresh Khullar Vs. Sh. Vijay Kumar Khullar, AIR 2008 Delhi 1 : (2008) 148 DLT 685 : (2007) 97 DRJ 668 : (2007) 5 ILR Delhi 1 , the Court held that, "Where alternative constructions are possible the Court must give effect to that which will be responsible for the smooth working of the system for which the statute has been enacted rather than the one which would put hindrances in its way. If the choice is between two interpretations, the narrower of which would fail to achieve the manifest purpose of the legislation the Court should avoid a construction which would reduce the legislation to futility and should rather accept the bolder construction based on the view that Parliament would legislate only for the purpose of bringing about an effective result."

At this juncture, this Court deems it fit to consider an Australian judgement in Project Blue Sky Inc v. Australian Broadcasting Authority reported in (1998) 72 ALJR 841 , at Page 855, wherein, Lord Herschell, observed that, "only by determining the hierarchy of the provisions, will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language maintaining the unity of the statutory scheme.

With the above guiding principles, in my humble opinion, if the words "Criminal Court", used in sub-Section (1) and the words "lower Court, used in sub-Section (2) of Section 408 Cr.P.C., are given the same meaning, i.e., lower to the Sessions Judge, then, certainly, there would be a smooth functioning of the system, which the Code of Criminal Procedure, is purported to regulate, without there being any friction or confusion in the working of the system, which dispenses administration of justice.

At this juncture, this Court deems it fit to consider the words of Hon''ble Justice S.R. Dass in Chief Justice of Andhra Pradesh and Others Vs. L.V.A. Dixitulu and Others, AIR 1979 SC 193 : (1979) LabIC 1672 : (1979) 2 SCC 34 : (1979) 1 SCR 26 , wherein, the Hon''ble Judge said that if two constructions are possible, then the Court must adopt that which will ensure smooth and harmonious working of the provisions of the Code of the Criminal Procedure and eschew the other, which would rise to practical inconvenience.

Reading of the order made in Surendra Kumar Vs. Vijayan, (2005) 4 ILR (Ker) 450 : (2005) 4 KLT 475 , shows that the Kerala High Court, has drawn an analogy of conferment of powers to the learned Sessions Judge under Section 24 CPC, wherein, as per sub-Section (3) to Section 24 CPC, the Additional Sessions Judges and Assistant Sessions Judges have been shown as subordinates to the Sessions Judge. Code of Criminal Procedure has underwent so many changes and in 1973, it was revised. Both Cr.P.C., and CPC have underwent changes.

The legislature in its wisdom in Section 24 CPC., has stated that both the Additional Sessions Judge and Assistant Sessions Judge are subordinate to the Sessions Judge. Section 24 CPC., states that if the Sessions Judge had been conferred with a power to transfer a case or an appeal from one Court to another of equal jurisdiction i.e., from one Additional Sessions Judge to another Additional Sessions Judge and from one Assistant Sessions Judge to another Assistant Sessions Judge, and if the legislature wanted to confer a similar power on the criminal side also, i.e., in Section 408 of the Code of Criminal Procedure, the Legislature could have been amended Section 408 Cr.P.C., on the same lines as contained in Section 24 CPC also.

But a close reading of sub-section (1) of 408, shows that there is a clear omission of the word appeal'' in Section 408. Therefore, the Sessions Judge cannot transfer an appeal from one criminal court to another criminal court in his Sessions division.

This Court in the foregoing paragraphs has already considered the meaning of the two words i.e., (1) any; and (2) particular, in the context in which, the two words occur in sub-section (1) of Section 408 CPC. As already discussed, in the light of the decisions of the Apex Court as to how a Section or a statute has to be read, a conjoined reading of Sub-Sections (1) and (2) with a specific inclusion of the word ''lower Court'' in Sub-Section (2) of Section 408 Cr.P.C., in the humble opinion of this Court, it cannot be contended that there is a causus omissus in the Code of Criminal Procedure, while conferring power on the Sessions Judge in pari materia, to Section 24 C.P.C. Therefore, with due respect to the Hon''ble Division Bench, I am not in agreement with the analogy drawn by the High Court of Kerala, in referring to Section 24 of the Code of Civil Procedure, in the Scheme of Code of Criminal Procedure Code, where the hierarchical system provides for transfer, wherein, there are provisions, for transfer, under Section 406 by the Supreme Court, Section 407 by the High Court and Section 408 by the Sessions Court, which makes it clear that the abovesaid Sections empower, each of the superior Courts to transfer cases from the Courts, lower or subordinate to its authority, in exercise of judicial functions.

In Appukuttan v. Z. Thomas Zakaria [Crl.O.P.(MD) No. 18201 of 2012, dated 09.12.2014], relied on by the learned counsel for the respondent, the order of the learned Principal and District and Sessions Judge, Kanyakumari, rejecting the request of the petitioner therein to transfer C.C. No. 397 of 2010, from the file of the learned Judicial Magistrate No. II and transfer the same, to the file of the Chief Judicial Magistrate, Nagercoil, to be tried, along with S.C. No. 62 of 2011, has been challenged. While rejecting the request for transfer and joint trial, the learned Principal Sessions Judge, on the facts and circumstances of the case, has found that the trial in C.C. No. 397 of 2010, had already begun. In S.C. No. 62 of 2011, except the petitioner therein, all other witnesses have been examined by the learned Chief Judicial Magistrate, Nagercoil. Placing reliance on the decision in Ashok Kumar Prabhudasbhai Modi Vs. State of Gujarat, (2002) CriLJ 1624 : (2001) 21 GLH 796 , the learned Principal Sessions Judge, Kanyakumari, rejected the request for transfer. Being aggrieved by the same, Crl.O.P., has been filed in the Madurai Bench of this Court, to set aside the said order and the petitioner has sought for the reliefs, as stated supra. This Court has considered the decision made In Re: Smt. Tarulata Kala, (1997) CriLJ 1401 , wherein, the Calcutta High Court, at paragraph No. 5, held as follows:

"6. I have considered the submission of Mr. Roy and the materials as produced before me in the revisional application. I find no conflict in the decision of Radhey Shyam (supra). The conflict regarding them is interpretation of the same. Section 408(1) reads as follows:-

"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."

Sub-section (2) of Section 409 reads as under:-

"At any time before the trial of the case or the hearing of the appeal has commenced before the Additional Sessions Judge, a Sessions Judge may recall any case or appeal which he has made over to any Additional Sessions Judge." (sic). (The underscoring is by me).

So, both the sections speak of two stages, one up to the stage of case and another where the case steps into the stage of trial, that is, with the framing of the charge. The case under reference of the Allahabad High Court only speaks of transfer of the sessions case and not regarding trial. No doubt, the two sections are separate and independent and one is not controlled 7 or regulated by the other. But sub-section (2) of Section 409 specifically points out two stages in a case, that is, one from pretrial which is termed as ''case'' and very often one comes across with the expression ''till the trial commences before the Sessions Judge'' shows that sessions case and sessions trial is not the same. Once the trial commenced, the Sessions Judge has not the power to withdraw and transfer the trial to some other court of another Sessions Judge or Additional Sessions Judge. But before that stage of the trial, the Sessions Judge has every power to withdraw the Sessions Case either upon an application or suo motu and can transfer it to another court of session. In that there is no military between Section 408(1) and Section 409(2) of the Cr.P.C. The Legislature in its wisdom has used two terminology in Section 408(1) and 409(2) namely, the pre-trial stage of Sessions Case and trial stage. There is no doubt that the learned Sessions Judge has power to withdraw the the Sessions case to another Court in pretrial stage, but once the trial commences he has no power to transfer the case to another court of Sessions Judge."

Considering both the decisions in Ashok Kumar Prabhudasbhai Modi''s case (cited supra) and Re: Smt. Tarulata Kala''s case (cited supra), this Court in Appukuttan''s case, held as follows:

"8. Even though the trial Court has powers to withdraw the Sessions case and transfer the same to another Court, it can be only done in the pre-trial stage. Once the trial has started, the Sessions Court has no power to transfer the case to another Court of Sessions.

In the light of the decision rendered by the Calcutta High Court and the decision of the Apex Court referred to by the Principal District and Sessions Court, Kanyakumari District at Nagercoil and taking note of Section 409(2) of Cr.P.C., as the trial has commenced and it is at the verge of conclusion, there is no need to club both the cases namely S.C. No. 62 of 2011 and C.C. No. 397 of 2010 to be tried in the same Court, more particularly when S.C. No. 62 of 2011 pertains to different event and the trial has already been commenced, except the examination of witness Appukuttan, who is required for adducing evidence and in this regard, a warrant has already been issued. It is very unfortunate that the warrant issued on 14.07.2012 is yet to be executed."

So saying, dismissed the Crl.O.P.

Mr. S. Prabhakaran, learned counsel for the petitioner made an attempt to distinguish the above unreported judgment, as it is applicable only to a case and not an appeal. Whether Section 408(1) Cr.P.C., itself, can be made applicable, to an appeal, has already been discussed at length in the foregoing paragraphs. Though the learned counsel has argued that Appukuttan''s case (cited supra), cannot be made applicable to the facts of the present revision petitions and contended that what is sought for by the revision petitioners is only transfer of appeals, pending on the file of the learned IInd Additional City Civil Court, Chennai, to any other Court of Session of equal jurisdiction and that the judgment in Appukuttan''s case, pertains only to a case, quite contrary to the above submissions made, in the attempt to distinguish Appukuttan''s case (cited supra), has relied on a Hon''ble Division Bench judgment of the Madhya Pradesh High Court In Re: District and Sessions Judge Raisen, (2005) 3 JLJ 19 : (2005) 3 MPHT 411 : (2005) 3 MPLJ 26 , wherein, the question posed before Their Lordships, was with reference to the powers of the Sessions Judge, to transfer part-heard cases, as the Presiding Officer, had resigned from the post and no other Judicial Officer was appointed in his place. If the judgment in Appukkutan''s case (cited supra), is not applicable to the facts of the present revisions, then the same argument can be made applicable to the facts of this case also. In Re: District and Sessions Judge Raisen, (2005) 3 JLJ 19 : (2005) 3 MPHT 411 : (2005) 3 MPLJ 26 , the Hon''ble of Madhya Pradesh High Court, in its summary of the above reported judgment, has considered the judicial powers of the Sessions Judge, under Section 408 Cr.P.C., in the matter of transfer of any case from one Criminal Court to another Criminal Court, in the same Sessions Division and while summarizing their views at paragraph 19(a), held as follows:

"(a) A Sessions Judge in exercise of judicial power under Section 408 of the Code may transfer any case pending before any Criminal Court in his Sessions Division to any other Criminal Court in his Sessions Division. That would mean that he can transfer even those cases where the trial has commenced from one Additional Sessions Judge in his Sessions Division to another Additional Sessions Judge in his Sessions Division. The transfer of a case under Section 408 of the Code being in exercise of a judicial power, it should be preceded by a hearing to the parties interested. Further, the reason or reasons why it is expedient for the ends of justice to transfer the case, has to be recorded."

As regards the exercise of administrative powers of the Sessions Judge, under Section 409 Cr.P.C., the Hon''ble Division Bench of Madhya Pradesh in Re: District and Sessions Judge''s case (cited supra), at Paragraphs 19(b)(iii), held that "powers can be exercised to recall any case or appeal which he has made over to any Additional Sessions Judge, before trial of such case or hearing of such appeal has commenced before such Judge and try the case or hear the appear himself or make it over to another Court for trial or hearing in accordance with the provisions of the Code." Considering the circumstances, stated in Section 409(2) Cr.P.C., where the trial of the case, has commenced, before the Additional Sessions Judge, and when there was an eventuality of the Additional Sessions Judge, retiring or resigning , death or transferred outside the Sessions Division, the Hon''ble Division Bench said that the Sessions Judge in exercise of his administrative power, can recall the case.

The Hon''ble Division Bench of Madhya Pradesh High Court In Re: District and Sessions Judge Raisen, (2005) 3 JLJ 19 : (2005) 3 MPHT 411 : (2005) 3 MPLJ 26 , has not considered the question, as to whether, an appeal can be transferred from one Criminal Court to another Criminal Court, in the same Sessions Division under Section 408 Cr.P.C., when the Judge, hearing a case or the appeal, has not retired or resigned. To make it clear, it was not a case for transfer of an appeal.

The question considered in Surendra Kumar Vs. Vijayan, (2005) 4 ILR (Ker) 450 : (2005) 4 KLT 475 , by a Hon''ble Division Bench, is whether a Sessions Judge has power under Section 408 of the Code of Criminal Procedure, 1973, to transfer a case, after commencement of trial or a part heard appeal from the court of Additional Sessions Judge to another competent court within the sessions division. In the foregoing paragraphs, this Court has already extracted the reasons, assigned by the Hon''ble bench. That apart, a Full Bench decision of the Allahabad High Court in Radhey Shyam and Another Vs. State of U.P., (1982) 8 ACR 297 : (1984) 2 Crimes 50 , has been considered. To sum, the Hon''ble Division Bench of Kerala High Court at Paragraph 12, held that,

"(1) An interested litigant is entitled to invoke Section 409 of the Code before the Sessions Judge for the purpose of withdrawing or recalling cases including revisions and appeals already made over to an Additional Sessions Judge, provided the trial or hearing of the cases or revisions or appeals as the case may be, has not commenced. It is an administrative exercise of power by the Sessions Judge.

(2) An interested litigant is entitled to move the Sessions Judge for transferring cases including revisions and appeals at any stage from the court of an Additional Sessions Judge, if such transfer is expedient for the ends of justice.

(3) Unless the litigant thus first moves the Sessions Judge, an application for transfer under Section 407 before the High Court is not maintainable.

(4) The Additional Sessions Judge concerned is entitled to make a report to the Sessions Judge for transferring any cases including revisions and appeals pending before him irrespective of the stage of such matters."

In Jamuna Devi Vs. District and Sessions Judge and Others, (2007) 1 GLR 560 : (2007) 1 GLT 148 , holding that the power under Section 407 Cr.P.C., is identical to that of the High Court, under Section 407 Cr.P.C., with certain modifications and following the earlier decision in Subrata Pal Vs. Ratna Gope and Another, (2002) 1 GLT 261 , the Gauhati High Court, held that the Sessions Judge has jurisdiction to consider an application for transfer, on his judicial side, under Section 408 Cr.P.C.

Here again, it should be noticed that the issue in Jamuna Devi''s case (cited supra), was whether a case can be transferred. But the Division Bench has considered the power of the Sessions Judge, to transfer a part heard appeal also. Therefore, among the judgments cited by Mr. S. Prabhakaran, learned counsel for the petitioner, only in two judgments in Jamuna Devi''s case (cited supra) and Surendra Kumar''s case (cited supra), the Gauhati High Court and the Kerala High Court, respectively, have considered the power of the Sessions Judge, under Section 408 Cr.P.C., to transfer an appeal, from one Criminal Court to another, within the same division. Judgement In Re: District and Sessions Judge Raisen, (2005) 3 JLJ 19 : (2005) 3 MPHT 411 : (2005) 3 MPLJ 26 , may not in stricto sensu applicable to the facts of this case. The other judgment of this Court rendered by My Esteemed Brother, Justice S. Nagamuthu in Ganesan''s case (cited supra), deals with the committal of cases and the passing remark, that Section 408 Cr.P.C., empowers a Sessions Judge only to transfer any particular case from one Criminal Court to another Criminal Court in his Sessions Division, in my humble opinion, cannot be said to be precedent, as the issue of transfer was not subject matter considered. On this aspect, this Court takes support from the decisions stated supra, as to when a judgment can be treated as precedent.

As rightly contended by Mr. P. Govindarajan, learned Additional Public Prosecutor, the Sessions Judge, in exercise of the powers, under Section 408 of the Code of Criminal Procedure, cannot be said to have been conferred with a power to transfer "any particular case" from one Additional Sessions Judge to another, in the Sessions Division.

In Kumar v. State, represented by Superintendent of Police [Crl.R.C. No. 740 of 2005, dated 12.02.2007], relied on by the learned counsel for the respondents, an order has been passed in C.M.P. No. 7 of 2005 in S.C. No. 56 of 2004, on the file of the learned First Additional Sessions Judge, Salem, filed under Section 409(2) Cr.P.C., was challenged by way of revision. In the said Miscellaneous Petition, the petitioner therein has sought for a prayer to stop the proceedings, which was dismissed. Reading of the order made in the Miscellaneous Petition, as extracted in the order made in the revision discloses that after the framing of the charges by the Fast Track Court No. I, Salem, in exercise of the powers, under Section 409(2) Cr.P.C., the learned Principal Sessions Judge, Salem, has recalled the case and made over to the First Additional Sessions Judge, Salem. Fact discloses that subsequently about 30 prosecution witnesses have been examined by the learned First Additional Sessions Judge, Salem and after the closure of the prosecution evidence and at the time, when the case was posted for questioning the accused, under Section 313 Cr.P.C., a Miscellaneous Petition under Section 409(2) Cr.P.C., has been filed, by the accused to stop all the proceedings. On the above facts, a learned Judge of this Court, framed the followings:

"1. Whether the petition filed under Section 409(2) Cr.P.C., before the I Additional Sessions Court is legally maintainable?

Whether the prayer seeking to stop further proceedings, by way of filing the criminal miscellaneous petition is legally sustainable and supported by valid grounds?

Whether the revision petitioner can challenge the criminal proceedings in view of Section 462 of the Code of Criminal Procedure, after the prosecution evidence is closed and when the case is posted for questioning the accused under Section 313 Cr.P.C.?

Though the decision in Devarasu''s case, decided by the Hon''ble Mr. Justice M. Karpagavinayagam, was pressed into service by the petitioner therein, by observing that the abovesaid decision, is not applicable to the facts of Kumar''s case (cited supra), as the order of making over, has not been challenged by the petitioner therein, and holding Section 409(2) is not applicable to a part heard case and further taking note of the fact that the prosecution had already examined many witnesses, a learned Single Judge of this Court has dismissed Kumar''s case. The decision relied on by Mr. Sundarsana Sampath, learned counsel for the respondents, may be applicable to the facts of this case only, to the extent that transfer cannot be ordered, after the examination of witnesses. The said principles can be applied to the present revision cases, where, after the appeals were posted for judgment, transfer petitions have been filed.

Insofar as the Additional Sessions Court is concerned, there cannot be any difference of opinion expressed in Surendra Kumar''s case that Court of Additional Sessions Judge is also a Criminal Court, as per Chapter XXXI of the Code. With due respect to the Hon''ble Bench of the Kerala High Court, there cannot also be a dispute that the words, "if it is in the expedient for the ends of justice", used in Section 408 Cr.P.C., should be given its importance, which the legislature, has intended to confer power on the Sessions Judge, to transfer a case from one Criminal Court to another Criminal Court in his Sessions Division. But as regards the words, "Criminal Court", used in Section 408(1) Cr.P.C., this Court is of the view that the words, "Criminal Court" should be a Court, lower than the Sessions Judge.

The Hon''ble Division Bench of the Kerala High Court in Surendra Kumar''s case (cited supra), has interpreted the words, "lower Court" used in Section 408 Cr.P.C., does not mean a subordinate Court or inferior, to ensure that the power under Section 408 Cr.P.C., can be extended to issue directions for transfer of a case, pending before the Additional Sessions Judge.

While considering the powers of the Sessions Judge, in Section 408 Cr.P.C., with reference to the proviso to Section 407 Cr.P.C., and in particular to the expression, "in the expedient for the ends of Justice", the Hon''ble Division Bench of the Kerala High Court has held that the power to transfer a case from one Criminal Court to another, within the same Sessions Division, is conferred on the Sessions Judge, in the interest of the litigant public, and for the reason that it reduces the burden of the High Court. The Division Bench of the Kerala High Court also observed that as per Section 412 Cr.P.C., reasons have to be recorded, and any party aggrieved, can always take recourse to the revisional remedy, under Section 397 Cr.P.C. At this juncture, this Court deems it fit to extract Section 397 Cr.P.C., which deals with calling for records to exercise powers of revision,

"(1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record. Explanation. - All Magistrates whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this sub-section and of section 398."

Section 397 Cr.P.C., is very clear that the High Court or the Sessions Court, can exercise their revisional jurisdiction only in respect of any inferior Criminal Court situate within its local jurisdiction. Therefore, from the plain reading of Section 397 Cr.P.C., it is clear that the Sessions Court cannot exercise its revisional jurisdiction over an order or proceedings of the Additional Sessions Judge. If that be the statutory provision, no supervisory power can be conferred on the Sessions Judge, under Section 408 Cr.P.C., to transfer any case or appeal, after the commencement of trial or appeal, as the case may be. In such a view of the matter, the expression "expedient for the ends of justice." occurring in sub-Section (1) of Section 408, if conjointly read with the words, "lower Court", occurring in sub-Section (2) of the said Section, should be read to mean that power is conferred on the Sessions Judge only, to transfer a case in the lower Court only.

The other reason assigned by the Hon''ble Division Bench of Kerala High Court is that if the Sessions judge is empowered to transfer a case from one Criminal Court to another of equal jurisdiction, then it would reduce the burden of the High Court. With due respect, this Court is unable to accept the said reason, having regard to various decisions, extracted supra, as to how, a statute and Sections have to be interpreted, to maintain harmony in the construction of the structure of the whole statute.

As per Section 28 of the Protection of Women from Domestic Violence Act, save as otherwise provided in this Act, all proceedings under sections 12, 18, 19, 20, 21, 22 and 23 and offences under section 31 shall be governed by the provisions of the Code of Criminal Procedure, 1973. Nothing in sub-section (1) shall prevent the court from laying down its own procedure for disposal of an application under section 12 or under sub-section (2) of section 23.

Whether the proceedings under Section 12 of the Act, is a case, within the meaning of Sections 406 to 409 of the Criminal Procedure Code, 1973? In the light of the definitions and decisions, stated supra, a proceeding under Section 12 of the abovesaid Act, before the learned Judicial Magistrate to adjudicate the issues, with reference to the provisions under Sections 18, 19, 20, 21, 22 and 23, may not fall under the caption, an offence, under the Penal provisions of any statute. But in the light of the definitions to the word, "trial", this Court is of the view, a proceeding instituted under the provisions of the Protection of Women from Domestic Violence Act, 2006, should be construed as a ''case'' and a decisions made in a case can be appealed. At this juncture, Section 29 of the said Act, is extracted,

"There shall lie an appeal to the Court of Session within thirty days from the date on which the order made by the Magistrate is served on the aggrieved person or the respondent, as the case may be, whichever is later."

Courts subordinate to the High Court are bound to follow the decision of that High Court, within whose territorial jurisdiction, they are located. That is the only interpretation that can be given in view of Articles 227 of the Constitution of India and Sections 397, 398 and 401 of the Code of Criminal Procedure. Decisions of the other High Courts are not binding on the Courts, within the territorial jurisdiction of this Court, when there is a decision of this Court, on the point of law. If the contention of Mr. S. Prabhakaran, learned counsel for the petitioners that the decisions of other High Courts have a binding precedent on the subordinate Courts of this High Court, cannot be accepted. To test the principle, the question is, judgment of which High Court, the subordinate Courts of this Court, would follow? Kerala or Calcutta, as both have divergent views. Constitution of India does not recognise any such proposition. The interpretation made would create chaos in the judicial system, administering justice. The very fact that the above High Courts have interpreted Section 408 Cr.P.C., in a different way, leads to the conclusion that the independence of each High Court, is respected.

At this juncture, reverting to the case on hand, first of all, the matter sought to be transferred from the file of the learned Additional Sessions Judge, is not a case, but an appeal, arising out of the Protection of Women from Domestic Violence Act, 2005, filed under Section 29 of the Act. There cannot be any ambiguity in Section 408 Cr.P.C., it has only mentioned about a case and not an appeal. The word "case" cannot be stretched to mean an appeal also, when there is no ambiguity or uncertainty in the provision.

Hon''ble Mr. Justice Subbarao in M.V. Joshi Vs. M.U. Shimpi and Another, AIR 1961 SC 1494 : (1961) 3 SCR 986 , said that, "when the words are clear and plain, the Court is bound to accept the expressed intention of the Legislature." I am extracting the words of the Hon''ble Judge, to the context of Section 408 Cr.P.C., in which, it is enacted for the reason that Section 408 Cr.P.C., speaks only about a ''case'' and not an ''appeal''. In the present criminal revision cases, Appeal Nos. 142 and 144 of 2014, pending on the file of the learned IInd Additional City Civil Court, Chennai, are sought to be transferred, by referring to Section 24 of the Code of Civil Procedure and Section 408 of the Code of Criminal Procedure.

It could be seen from Section 408 Cr.P.C., the word considered by the Legislature, is only to a "case", and not an "appeal", as contended by the revision petitioners. The reason, as to why, the petitioner has invoked Section 24 of the Civil Procedure Code, is obvious that as per Section 24 of the Code of Civil Procedure Code, Courts of Additional and Assistant Judges shall be deemed to be subordinate to the District Court. However, in transfer applications in C.A. Nos. 142 and 176 of 2014, filed in the typed of papers, under Section 408 Cr.P.C., has been referred.

Lord Reid in Kirkness v. John Hudson and Co., reported in (1955) 2 All.E.R. 345, said that, "It would be hard to find anywhere a sentence of any length which does not contain such a word." He added further, thus, a provision is, in his judgment, is ambiguous only if it contains a word or phrase which in that particular context, which is capable of having more than one meaning.

In the light of the decisions and discussion, transfer applications filed by the revision petitioners, to transfer Appeal Nos. 142, 144, 176 and 177 of 2014, on the file of the learned IInd Additional City Civil Court, Chennai, are not maintainable in law. There is no manifest illegality in the impugned orders, warranting intervention.

In the result, all the Criminal Revision Cases are dismissed. No costs. Consequently, connected Miscellaneous Petitions are also closed.