T. Bhaskar and Others vs T. Nagaraju and Another

P. Venkatarama Reddi, ACJ

The order of the District and Sessions Judge, Chittoor passed in purported exercise of power u/s 408 of the Criminal Procedure Code was challenged in Crl. Petition No. 861 of 1997 on the ground that the District and Sessions Judge has no jurisdiction to transfer the criminal case (C.C.No.402 of 1995 on the file of the V Additional District Munsif, Chittoor) to the Court of the First Additional District Judge, Chittoor, so that the C.C and the Sessions Case may be tried together.

The police filed a charge sheet under Sections 324 and 326 IPC against the petitioner. That case was registered as C.C. 402 of 1995 in the Munsif-Magistrate Court, Chittoor. Another charge sheet u/s 302 IPC was filed against the petitioner in respect of the offence of murder. It is not in dispute that both arise out of the same transaction or incident, atleast prima facie. The learned District and Sessions Judge felt that in the interests of justice, both the cases should be tried together, so that there may not be conflicting judgments. As the trial in the Sessions Court was not yet over, the learned District and Sessions Judge directed the C.C. to be transferred to the First Additional District Judge.

The decision of a learned single Judge of this Court in B. Sreedhar Reddy v. State of Andhra Pradesh 1988 (2) ALT 283 no doubt supports the contention of the petitioner that the Sessions Judge cannot order transfer of a case from one Criminal Court to another Criminal Court of a superior jurisdiction. In that case, the question was whether the bar under the proviso to sub-section (2) of Section 407 of the Criminal Procedure Code was attracted It was held that the High Court has the exclusive jurisdiction to transfer the criminal case to a superior Court u/s 407(1) and the Sessions Court''s powers u/s 408 must be confined to the transfer from one Criminal Court to another Criminal Court of the same or inferior status. In coming to that conclusion, the learned Judge stressed the difference in language between the words used in Sections 407 and 408.

The relevant portions of the two sections are extracted below:

"Section 407: Power of High Court to transfer cases and appeals:

(a) ...................

(b) ...................

(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) ...................

(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;''''

(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:

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.

Section 408: Power of Sessions Judge to transfer cases and appeals:--(1) Whenever it is made to appear to a Sessions Judge that an order under this sub-section is expedient for the ends of justice, he may order that any particular case be transferred from one criminal Court to another criminal Court in his sessions division.

(2) The Sessions Judge may act either on the report of the lower Court, or on the application of a p2 party interested, or on his own initiative."

The words used in Section 408 namely "from one criminal Court to another criminal Court in the sessions division" are plain and unambiguous. They do not admit of a limitation sought to be projected by reference to Section 407 that the criminal Court to which the case is to be transferred should not be a superior criminal Court. The absence of language similar to clause (ii) of Section 407(1) is not conclusive. No doubt, while dealing with the jurisdiction of the High Court, the words used are "be transferred from a criminal Court to any other criminal Court of superior jurisdiction". The width and amplitude of the words employed in Section 408, need not, in our view, be untrailed by any reference to the expression used in Section 407(ii). Apart from the plain language employed, we do not think the intendment of the provision is such that it warrants a limited or restricted interpretation of the words "from one criminal Court to another "occurring in Section 408. It cannot be said that the use of the expression "superior" in the preceding section should necessarily lead to the interpretation that the ''criminal Court'' contemplated in Section 408 should not be a ''superior Court''. We find no rational basis for such interpretation merely because different language is used in Sections 407 and 408 as a matter of convenience by the draftsmen. In fact, if a restricted interpretation is sought to be given to Section 408 so as to preclude transfer to ''a Court of superior jurisdiction'' u/s 408, it is reasonable to think that the legislature should have employed a clear and specific language to that effect. More over, having regard to the fact that the power vested in the sessions Court u/s 408 is meant to be exercised in the ends of justice, there is no reason to restrict the power of the sessions Court to allot a case pending in a criminal Court to another Court of superior jurisdiction in the same sessions division in the interests of allocation of work, which might tend to facilitate more convenient disposal of the two cases. The interests of justice coupled with the administrative interest involved in allocating the case to another Court is the consideration underlying Section 408. If that be the case, there is no warrant to place a restricted interpretation that is sought to be placed by the petitioner. We therefore respectfully disagree with the reasoning given in Sreedhar Reddy''s case (supra) and overrule the view taken by the learned single Judge in that case. We agree with the view expressed by Mr. Justice Raikote while referring the matter to the Division Bench.

In view of the foregoing discussion, the criminal petition is dismissed.