Superintendent and Remembrancer of Legal Affairs vs Tulshi Mondal

N.C. Talukdar, J.—This is a Reference u/s 429 read with Section 439(1), Code of Criminal Procedure, whereby the present case is laid before me for my opinion upon a difference of opinion between my learned brothers A.K. De and R.N. Bhattacharya JJ., arising over the question of jurisdiction of the learned Sessions Judge of a district to transfer a Sessions trial from the Court of the learned Addl. Sessions Judge, where it had already commenced, to another Court. No other point, however, excepting that of jurisdiction appears to have been specifically raised by either side during the hearing of the Rule before my learned brothers and no such point also constitutes the subject-matter of the Reference requiring my consideration.

Before I deliver my opinion and the judgment and order following the same, the point arises as to whether I should merely concur with the opinion of either of my learned brothers without giving any reasons therefore or should give the steps of my reasoning in support of such opinion for the ultimate agreement or disagreement with either of them. Section 429, Code of Criminal Procedure, overrides Clause 36 of the Letters Patent and according to one view, on a difference of opinion between the learned Judge composing the Court of appeal or revision, the whole case is laid before the learned third Judge and not merely the points of difference. A reference in this context may be made to the case of Md. Illias Mistri v. The King ILR (1949) Cal. 43 (44), wherein the learned third Judge, Biswas J., on a difference of opinion between Roxburgh and Majumdar JJ., observed that--

There can be no doubt upon the wording of the section that the whole case is now before me, which means not only that I am at liberty, but that it is also my duty to examine the whole of the evidence for myself and come to a final judgment.

The Supreme Court, however, in a latter decision, viz. in the case of Bhagat Ram Vs. State of Rajasthan, , held otherwise. H.R. Khanna J. delivering the judgment of the Court observed on the power of a third Judge that he can deal only with matter in difference and has no power to reopen the whole case and convert an order of acquittal into one of conviction. The learned third Judge, following the delivery of his opinion, however, is competent to pass final orders.

It is pertinent in this context to refer to the provisions of the relevant section as well as the imprimatur of judicial decisions thereupon. Section 429, Code of Criminal Procedure, provides as follows:

When the Judges composing the Court of Appeal are equally divided in opinion, the case, with their opinion thereon, shall be laid before another Judge of the same Court and such Judge, after such hearing (if any) as he thinks fit, shall deliver his opinion and the judgment or order shall follow such opinion.

The said section also applies to revision as is abundantly clear from the provisions of Section 439(1), Code of Criminal Procedure, laying down as follows:

In the case of any proceeding the record of which has been called for by itself or which has been reported for orders, 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 423, 426, 427 and 428 or on a Court by Section 338 and may enhance the sentence; and when the Judges composing the Court of revision are equally divided in opinion, the case shall be disposed of in manner provided by Section 429.

The point that arises for consideration in the backdrop of the provisions referred to above, accordingly, is whether the learned third Judge, within the bounds of Section 429 read with Section 439(1), Code of Criminal Procedure, is merely to concur with either of the opinions of the learned differing Judges or may deliver his opinion with detailed reasons. There was some cloud raised on the point at one stage but, by and large, the same has been lifted by a series of decisions of the different High Courts. A reference in the firsts instance may be made to the case of Durgadas Das v. Nalin Chandra Nandan 38 C.W.N. 771 and which was a reference to a third Judge under Clause 36 of the Letters Patent. Buckland A.C.J., on a difference of opinion between Lort Williams and M.C. Ghose JJ. was the third Judge before whom the differing opinions were laid under Clause 36 of the Letters Patent and he agreed with his learned brother, Lort Williams J., that the appeal should be summarily dismissed under Order 41, Rule 11, Code of Civil Procedure. The terms of Clause 36 of the Letters Patent are overridden by the relevant provisions of Sections 429/439(1), Code of Criminal Procedure, but as to the manner of expressing concurrence there is no difference. A reference may also be made to the decision of the Supreme Court, viz. Babu and Others Vs. State of Uttar Pradesh, wherein it was held by Hidayatullah J. (as his Lordship then was) that

there seems to be some misapprehension about the manner in which the third Judge is required by law to proceed when there is a difference of opinion between the two learned Judges of a High Court in the decision of an appeal... In our judgment, it was sufficient for Takru J. to have said on the question of F.I.R. that he did not consider it necessary to decide the point but he was in agreement with all that Mathur J. had said.

It is clear, therefore, that the Supreme Court did not disapprove of a mere occurrence by the learned third Judge with the opinion of one of the differing Judges with which he was agreeing. There is quite a large number of cases bearing on the other view, namely, of giving detailed reasons for such concurrence and without multiplying the instances a reference may be made to the cases of Granade Venkata Ratan Vs. The Corporation of Calcutta wherein on a difference of opinion between Chitty and Smitter JJ. the matter was laid before the third Judge Woodroffe J.; Yusuf Sk. and Others Vs. The State, , wherein there was a difference of opinion between J.P. Mitter and S.K. Sen JJ. and the matter was laid before a third Judge, viz. K.C. Das Gupta J. (as his Lordship then was); and the case of Jugal Kishore More Vs. Chief Presidency Magistrate Calcutta and Others, wherein on a difference of opinion between Amaresh Roy and Alak Gupta JJ. the case was referred to a third Judge, viz. Bijayesh Mukharji J. In all these cases referred to above, detailed reasons have been given for the ultimate opinion by the learned third Judge for agreement with one of the two differing Judges. On a consideration of the aforesaid decisions and also the provisions of the statute, I hold that the Legislature enjoins the delivery of the opinion by the learned third Judge and in delivering such opinion if he wholly agrees with one of the two differing opinions, he may not have to give the steps of his reasoning. But, otherwise, if he ultimately agrees with the conclusion substantially on the reasons given by one of the differing Judges, but not wholly so, it is better that his opinion, as recorded in the order passed by him, is a speaking order helping those going through the same to follow the steps of his reasoning. Each case, however, must depend on its own facts and principles laid down in the two different schools of view, referred to above, are not on ultimate analysis discordant but can be dove-tailed into each other depending on the exigencies of the case and the facts and circumstances thereof.

I will now turn to the facts leading on to the present Reference and the same can be put in a short compass. A revisional application was made, being Cr. Rev. No. 170 of 1972, by the Superintendent and Remembrancer of Legal Affairs, Government of West Bengal, against an order dated August 19, 1972, passed by the learned Sessions Judge, 24-Parganas, u/s 526(1A) of the Code of Criminal Procedure directing the transfer of a Sessions case pending before Shri P. Dutta, Addl. Sessions Judge, Fourth Court, Alipore, district 24-Parganas, to the Second Court of the Additional Sessions Judge for disposal. The backdrop of the Sessions trial, bereft of all verbiage, is that 24 persons were committed to the Court of Session, district 24-Parganas, for trial under Sections 148/302 read with Section 149 of the Indian Penal Code. The case was distributed by the learned Sessions Judge, Alipore, to the learned Addl. Sessions Judge, Fourth Court, Alipore, for disposal. The trial started on August 4, 1972 and by August 7, 1972, seven witnesses for the prosecution were examined and cross-examined and one prosecution witness, viz. P.W. 4, was recalled for further cross-examination and discharged. After the examination of P.W. 7 the learned Addl. Sessions Judge cancelled the bail of 7 of the accused persons and directed them to be taken into custody forthwith. On the next day, before the trial commenced, the accused persons whose bail was cancelled filed a petition before the learned Addl. Sessions Judge for a stay of the trial as they were going to move the higher Court for transferring the case Co some other Court. The Petitioners thereafter moved the learned Sessions Judge u/s 526(1A) for the transfer of the case and the learned Sessions Judge, on hearing both the sides, allowed the application and transferred the Sessions trial from the Fourth Court of the Addl. Sessions Judge to the Second Court of the Addl. Sessions Judge at Alipore, district 24-Parganas and the same was fixed for trial before the learned transferee Judge. Thereafter, the Superintendent and Remembrancer of Legal Affairs, Government of West Bengal, obtained the present Rule and the Sessions trial was stayed. The Rule came up for hearing before the Division Bench consisting of A.K. De and R.N. Bhattacharya JJ. who were however divided in their opinions and delivered their orders accordingly on March 25, 1973. A.K. De J. held that the Rule should be made absolute and the matter should go back to the learned Sessions Judge for disposal as early as possible, while R.N. Bhattacharya J. held that the Rule should be discharged and the impugned order should be upheld. As they were divided in their opinions, the case with the divided opinions was put up before the Hon''ble the Chief Justice for passing necessary orders under Sections 439(1)/429 of the Code of Criminal Procedure and it was ultimately laid before me for my opinion.

Having heard the learned Advocates for the respective parties, I will now proceed to consider the point of difference. The point of difference between the two learned Judges is whether on an application made to him u/s 528(1)(C), the Sessions Judge can transfer the case from the Court of the learned Addl. Sessions Judge to another Court. A.K. De J. on an interpretation of Section 528(1) and (1A) and also of Section 9 of the Code of Criminal Procedure held that the order for transfer passed by the learned Sessions Judge transferring the case from the Court of the learned Addl. Sessions Judge, Fourth Court, Alipore, district 24-Parganas, has been bad and improper and in that view the Rule should be made absolute. R.N. Bhattacharya J., however, held on a consideration of the relevant provisions that Section 528(1C) is an independent provision whereunder the Sessions Judge, in a fit and proper case, may transfer a particular case from one criminal Court to another in the same Sessions Division and accordingly, the order of transfer from the Court of the learned Addl. Sessions Judge has been a proper one. For a proper consideration of the point at issue it is necessary to refer to the provisions of Section 528(1), (1A) and (1C) as well as of Section 528(2) of the Code of Criminal Procedure. Section 528(1) provides as follows:

Any Sessions Judge may withdraw (any case or appeal) from, or recall (any case or appeal) which he has made over to, any Assistant Sessions Judge Subordinate to him.

The sine qua non are that the case in question sought to be transferred is from the Court of the Asstt. Sessions Judge and that the same must have been made to the learned Asstt. Sessions Judge under the provisions of Section 193(2) of the Code of Criminal Procedure. Sub-section (1A) refers to a transfer from the Court of the Addl. Sessions Judge and the condition precedent thereof is that the trial of the case in question or hearing of the appeal concerned had not commenced and that the said case of appeal had been made over to the learned Addl. Sessions Judge by the learned Sessions Judge u/s 193(2) of the Code of Criminal Procedure. Sub-section (1C) deals with a position which appears to be unfettered and untrammelled excepting in the last part of the provision referring pointedly to "from one criminal Court to another criminal Court in the same Sessions Division." Bhattacharya J. has interpreted "from one criminal Court to another criminal Court in the same Sessions Division" as being the same as from one Addl. Sessions Judge to another. The reported decisions on the point are not many and a reference may be made to the case of State of Uttar Pradesh v. Khurkhundi and Ors. 1971 All. L.J. 362 (365) M.L. Sinha J. observed:

for transferring a case from one Additional Sessions Judge to another Additional Sessions Judge, action can be taken by the Sessions Judge only under Sub-section (1A) of Section 528 of the Code and that too before the trial has commended.

I will now proceed to consider the various provisions u/s 528, Code of Criminal Procedure, for the correct position. Section 528(1), Code of Criminal Procedure, clearly refers to the Asstt. Sessions Judge, who is subordinate to the Sessions Judge and the transfer of the case must be with regard to one which has been made over to the Asstt. Sessions Judge by the learned Sessions Judge u/s 193(2), Code of Criminal Procedure. This section does not, therefore, apply to the point at issue. The relevant provisions relating to a transfer from the Addl. Sessions Judge are those contained in Sub-section (1A) and the sine qua non thereof are (a) before the trial of the case or the hearing of the appeal has commenced; (b) the case to be recalled is one which was made over to the Addl. Sessions Judge concerned by the learned Sessions Judge himself. It is significant that the word ''subordinate'' does not find place in Sub-section (1A). If Sub-section (1A) to Section 528 be construed to relate to cases of transfer from the Addl. Sessions Judge''s Court, the present case could not have been transferred in law and therefore, the ultimate order passed by the learned Sessions Judge transferring the case on August 19, 1972, would be bad and repugnant. If, however, Sub-section (1C) applies, as held by Bhattacharya J., such a transfer would be quite within the bounds of the statute and a pertinent order. It is necessary, therefore, to consider the provisions of Sub-section (1C).

In Sub-section (1C) the conditions precedent are (a) expedient for the ends of justice and (b) transfer in question is from one criminal Court to another criminal Court in the same Sessions Division. It is significant that neither the words ''Assistant Sessions Judge'' nor the words ''Additional Sessions Judge'' have been used by the Legislature. Is it, therefore, an independent provision apart from the specific provisions of Sub-section (1) and (1A) covering all the different Courts starting from Addl. Sessions Judge, Assistant Sessions Judge and Magisterial Court, or do the provisions only relate to the Magisterial Court? The answer to that would be the answer to this case bringing to light a difference between my learned brothers. While construing the provision of Sub-section (1C) to find out the real intention of the Legislature it should not be overlooked that the Legislature in its wisdom has left out the words ''which he has made over'' or, in other words, the condition precedent is that the case in question had been made over u/s 193(2), Code of Criminal Procedure. Section 528(1C) in the first blush, therefore, refers to cases which have not been so transferred and the emphasis is on matters originating before the Magistrate and similar causes. The dropping of the word ''appeal'' is another noteworthy feature that should be taken into consideration within the bounds of Section 528(1C). The provision of Sub-section (2) again pinpoints that Section 528(1C) was added by the amending Act XXVI of 1955 because of the provision of Sub-section (2) relating to the District Magistrate or Sub-Divisional Magistrate having powers to withdraw any case or recall the same which have been made over to the Magistrate subordinate to them. Some meaning and effect must be given to the words ''one criminal Court to another criminal Court in the same Sessions Division'' and for a proper appreciation thereof one has to refer to the material provisions of Sections 7, 9, 17 and 31 of the Code of Criminal Procedure. The Code of Criminal Procedure is an uninterrupted and logical chain and any link thereof when missed would result in redundancy. Section 7 in the context of lex loci relates to territorial division and lays down as follows:

7(1)--Every State (excluding the Presidency towns) shall be a sessions division, or shall consist of sessions divisions and every sessions division shall, for the purposes of this Code, be a district or consist of districts.

Section 9 relates to Court of Session wherein the State Government shall establish a Court of Session for every Sessions Division and appoint a Judge of such Court. A reference is not necessary to the provision of Section 17 relating to the subordination of Magistrates and Benches to District Magistrates and of Asstt. Sessions Judges to Sessions Judges. Sub-section (3) lays down as follows:

All Assistant Sessions Judges shall be subordinate to the Sessions Judge in whose Court they exercise jurisdiction and he may, from time to time, make rules consistent with this Code as to the distribution of business among such Assistant Sessions Judges.

To complete the tally, a reference must be made to Section 31 relating to sentences. Section 31(2) says that a Sessions Judge or Addl. Sessions Judge may pass any sentence...etc. It is abundantly clear, therefore, that the Sessions Judge and the Addl. Sessions Judge has the same power and in view of the preceding provision it is abundantly clear also that in a Sessions Division there is one Sessions Court although there may be many criminal Courts. Applying the said yardstick for interpreting the words ''from one criminal Court to another criminal Court in the same Sessions Division'' the intention of the Legislature is no longer clouded under the words which are not in any way redundant. On a consideration of the provisions laid down under the Code of Criminal Procedure reflecting the intention of the Legislature, I hold that some meaning and effect must be given to the words ''from one criminal Court to another criminal Court in the same Sessions Division''. The intention of the Legislature is quite clear and the provisions deal with the Magisterial or the original Court and neither the Addl. Sessions Judge''s Court nor the Asstt. Sessions Judge''s Court.

The point involved may now be considered in accordance with the principles of interpretation of Statutes. Section 528 consists of several steps starting with the Asstt. Sessions Judge reaching the step of the Addl. Sessions Judge and ultimately culminating into ''one criminal Court to another criminal Court in the same Sessions Division''. As was observed in Maxwell On Interpretation of Statutes that--

A statute is the will of the Legislature and the fundamental rule of interpretation, to which all others are subordinate, is that a statute is to be expounded according to the intent, of them that made it.

If the expansive interpretation sought to be given to Sub-section (1C) of Section 528 is given effect to, it would only attribute redundancy to the preceding Sub-section (1) and (1A) of the same Section 528; and it is well-known that the principles of interpretation of statute rule out redundancy. As was observed by Lord Sumner in the case of Quebec Railway, Light, Heat and Power Co. Ltd. v. Vandry AIR 1920 P.C. 181 (185), that--

Effect must be given if possible to all the words used, for the Legislature is deemed not to waste its words or to say anything in vain.

Subbarao J. (as his Lordship then was) also observed in the case of Ghanshyam Das Vs. Regional Assistant Commissioner of Sales Tax, Nagpur, that

a construction which would attribute redundancy to a Legislature shall not be accepted except for compelling reasons.

I respectfully agree with the same and hold that the principles laid down above rule out the interpretation sought to be given to the provisions of Section 528(1C) seeking to invest the same with a wider meaning than the Legislature ever intended. I ultimately hold, therefore, on the principles of interpretation of Statutes that to give the expansive meaning as sought to be put to Section 528(1C) would be to travel beyond the bounds of the Statute on a voyage of discovery. Each of these sub-sections dovetails into the scheme of the provisions of Section 528. One is concordant with the other and not discordant. On a consideration of the provisions contained in the Statute and also of the cardinal rules of interpretation, I hold that a transfer of a case from the Addl. Sessions Judge to some other Court sought to be made by the learned Sessions Judge would come within the ambit of Section 528(1A) and in the facts of the case under consideration the trial having already proceeded and no less than seven witnesses having been examined, the point reached was the point of no return or, in other words, the point of no transfer. The Addl. Sessions Judge is to be equated with the Sessions Judge in a Sessions Division and does not form really a different Sessions Court. Although not an imaginary line like the Equator, it is also not a separate entity to the extent that it constitutes different Courts having different powers.

I have considered the point at issue at some length because of the importance thereof and the illumining way in which it was approached by my learned brothers. On the steps of reasoning referred to above, I ultimately agree with the opinion of my learned brother A.K. De J. I only make it clear that I have not disposed of the matter on a consideration of the merits for such transfer or the merits of the grounds taken on behalf of the opposite parties for a transfer, the same having not been raised before the learned differing Judges and considered by them and as such, being wholly outside the realm of the point of difference in the Reference in question.

In the result, the Rule is made absolute; the impugned order dated August 19, 1972, passed by the learned Sessions Judge, Alipore, district 24-Parganas, Section 526(1A) of the Code of Criminal Procedure is hereby set aside; and I direct that the case shall go back to the learned Addl. Sessions Judge, Fourth Court, Alipore, district 24-Parganas, for being tried expeditiously and in accordance with law from the stage reached on August 7, 1972.

The records shall go down as early as possible.