Andhra HC (Pre-Telangana)
Bandaru Sreedhar Reddy vs State Of Andhra Pradesh And Ors. on 10 June, 1988
ORDER
1. This is petition filed under S. 407, Cr.P.C., for transfer of C.C. No. 165 of 83 on the file of the Judicial First Class Magistrate, Giddalur, to the file of the Asst. Sessions Judge, Markapur.
2. The facts of the case in brief as averred in the affidavit are : On 19-3-82 at about 2.00 p.m. there was a mutual fight between to parties in the main Bazar of Giddalur resulting in Crime Nos. 52 and 53 of 82 being registered by the Giddalur Police since some of the individuals in each of the parties happened to receive injuries. After investigation police filed a charge sheet in Crime No. 53/82 before the Judicial First Class Magistrate, Giddalur, and it was registered as C.C. No. 165/83. The petitioner in this transfer petition is cited as P.W. 1 in C.C. No. 165/83. The other crime, Cr. No. 52/82, in which the present petitioner is the accused has been committed to the Court of Session and registered under S. 307, I.P.C. as S.C. No. 88/83 on the file of the Assistant Sessions Judge, Markapur. It is submitted that the two cases arise out of the same transaction and they are case and counter and therefore need to be tried by one and the same Court and the judgments be delivered at the same time to avoid conflict of decisions.
3. Before entering into the merits for transfer, it is to be noted that the very maintainability of this transfer application under S. 407, Cr.P.C. is challenged by the Addl. Public Prosecutor and Shri E. V. Bhagiratha Rao, learned counsel for the respondents. It is submitted that the proviso to sub-section (2) of S. 407, Cr.P.C. debars the present application since both the Courts being in the same Sessions Division of Prakasam, no application similar to the present one was made before the Sessions Judge and rejected by him. The proviso relied upon is as under :
"Provided that no application shall lie to the High Court for transferring a case from one Criminal Court to another Criminal Court in the same Sessions Division, unless an application for such transfer has been made to the Sessions Judge and rejected by him."
4. It is interesting to notice the brief legislative history behind this proviso. S. 407, Cr.P.C. of the present Code corresponds to S. 526 of the Old Code of 1898. S. 526 as it stood originally was not bridled by any prohibitory clause like the proviso extracted so as to debar maintenance of an application under that provision before the High Court direct without first moving the Sessions Judge. However, High Courts were consistently insisting upon moving the Sessions Court first before making an application under S. 526, Cr.P.C. This tendency obviously seems to have called for an insertion of a prohibitory clause in the lines of the present proviso resulting in the enactment of the Amendment Act 26 of 1955. It is by way of this Amendment Act a prohibitory clause similar to the present proviso was inserted to S. 526. The prohibitory clause is sub-section (1A) of S. 526, which is as under :
"(1A) Notwithstanding anything contained in sub-section (1), no application shall lie to the High Court for the exercise of its powers under the said sub-section for transferring any 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."
I was also taken through Sections 6 and 9 of the Cr.P.C. to show that both the Courts viz. the Court of the Assistant Judge and the Court of the Judicial First Class Magistrate - involved herein are 'Criminal Courts'. It is an admitted fact that both these Courts are in the same Sessions Division. On the other hand, Mr. Bali Reddy, the learned counsel for the petitioner submitted that even if both the Courts are 'Criminal Courts', still they are not of equal jurisdiction, the Assistant Sessions Judge's Court being one of superior jurisdiction than that of the Judicial First Class Magistrate. He contended that in cases where one of the Criminal Courts happens to be of a superior jurisdiction than the other it is only S. 407 that governs the field and not S. 408, Cr.P.C. and that the proviso relied upon would have no application to such cases. To appreciate the respective contentions it is necessary to have a look at Sections 407 and 408 of the Cr.P.C.
5. Section 407, Cr.P.C. to the extent relevant is as under :
"407. Power of High Court to transfer cases and appeals :
(i) Whenever it is made to appear to the High Court -
(a) xx xx xx
(b) xx xx xx
(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) xx xx xx
(ii) that any particular case or appeal or 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 ......"
6. Section 408, Cr.P.C. to the extent relevant, as follows :
"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 ...."
As seen under S. 407 the High Court may order transfer of a case "from a Criminal Court subordinate to its authority to any other such Criminal Court of equal or superior jurisdiction", while under S. 408 a Sessions judge may order transfer of a case "from one Criminal Court to another Criminal Court in his Sessions Division". No doubt, as submitted by the learned Public Prosecutor, Sections 6 and 9 read together clinchingly disclose that the Courts of the Assistant Sessions Judge and Judicial First Class Magistrate are 'Criminal Courts'. However, admittedly the Court of the Assistant Sessions Judge is of a superior jurisdiction than that of the Judicial First Class Magistrate. The contention of Mr. Bali Reddy is that S. 408 simply envisages two 'Criminal Courts' whereas S. 407 contemplates specifically and categorically one of the two Criminal Courts being of superior jurisdiction. Since in the present case the court of the Assistant Sessions Judge is of a superior jurisdiction than the other Court involved for transfer, the learned counsel submitted that it is S. 407 that gets attracted and not S. 408 thereby rendering the crucial proviso to S. 407(2) inapplicable. I find substantial force in this submission. The contrasting language in Ss. 407 and 408, namely 'from a Criminal Court .... to any other such Criminal Court of equal or superior jurisdiction' appearing in S. 407 and 'from one Criminal Court to another Criminal Court ....' in S. 408, does suggest that the Legislature did intend different meanings to the respective terminology. S. 407 is specific and particularises 'Criminal Court of equal or superior jurisdiction' as against the simple reference to 'another Criminal Court' in S. 408. It is apposite at this juncture to notice that S. 406 dealing with the power of the Supreme Court to transfer cases employs the wording 'to another Criminal Court of equal or superior jurisdiction'. Thus, Sections 406 and 407 consistently employ the wording 'Criminal Court of equal or superior jurisdiction' while the immediately following S. 408 conspicuously departs from this consistency and simply says 'to another Criminal Court'. This departure cannot but be said to be deliberate on the part of the Legislature. The intendment behind this departure is obvious that in cases where the transfer of a case sought for is to a Court of superior jurisdiction the right provision to be directly invoked is S. 407 and not 408 since the latter does not specify nor contemplate involvement of a Court of superior jurisdiction for purpose of transfer while the former is specific and particularises such an involvement. The departure pointed out in view of the change of wording has thus to be given a changed meaning. In Ricket v. Metropolitan Railway Co., (1867) LR 2 HL 175 and Evans v. Evans, (1948) 1 KB 175 as noted in Maxwell on The Interpretation of Statutes (12th edition) at page 282, it is held :
"From the general presumption that the same expression is presumed to be used in the same sense throughout an Act or a series of cognate Acts, there follows the further presumption that a change of wording denotes a change in meaning."
Again in Re Stock and Share Auction and Banking Co., (1894) 1 Ch 736 it was held that where section-after-section of an Act relating to the winding up of companies was limited to winding up by the Court, the absence of any such limitation in another section which contained provisions as to procedure "if the winding up of a company is not concluded within one year after its commencement" indicated an intention on the part of the legislature that the latter action should apply also to cases of voluntary winding up.
7. Further the omission of the words 'equal or superior jurisdiction' in S. 408, though the language of S. 408 is otherwise plain and unambiguous, cannot be supplied by the Courts under the guise of interpretation. The Supreme Court in S.T. Commr., U.P. v. Parson Tools and Plants. thus :
"If the legislature wilfully omits to incorporate something of an analogous law in a subsequent statute, or even if there is a casus omissus in a statute, the language of which is otherwise plan and unambiguous, the Court is not competent to supply the omission by engrafting on it or introducing in it, under the guise of interpretation, by analogy or implication, something what it thinks to be a general principle of justice and equality, to do so, would be entrenching upon the preserves of the Legislatute, the primary function of a Court of law being jus dicere and not jus dare."
8. In view of the rulings referred to and the discussion made. I have no hesitation to conclude that it is only the High Court under S. 407 that is competent to order transfer of a case from one Criminal Court to another Criminal Court of superior jurisdiction and not the Sessions Judge under S. 408. When once the Sessions Judge is incompetent to transfer a case to a Court of superior jurisdiction, the prohibiting proviso to S. 407(2) would have no operation. This may, as mentioned, gave rise to a doubt whether the Sessions Judge is equally incompetent under S. 408, Cr.P.C. to transfer a case from the Court of the Judicial Second Class Magistrate to that of Judicial First Class Magistrate as the former is of a superior jurisdiction. The apprehension is obviously due to the misconception of the question of jurisdictional aspect. The First Schedule annexed to the Code of Criminal Procedure gives out a chart by way of classification of offences. Column 6 of the Schedule mentions the Court competent to try the offences. It mentions only three types of Courts, viz. (i) Court of Session, (ii) Magistrate of the first class and (iii) Any Magistrate, against different kinds of offences. Under the type of Court 'Any Magistrate' comes-in not only First Class Magistrate but also Second Class Magistrate. Consequently, all those offences triable by the Second Class Magistrate are equally triable by the First Class Magistrate, with the result it cannot be said that the First Class Magistrate's Court is of a superior jurisdiction then the Second Class Magistrate for trying an offence. So much so, if an offence is triable by 'Any Magistrate' it makes no difference if the case is to be transferred from the First Class Magistrate's Court to that of the Second Class Magistrate since both are of equal jurisdiction. However, cases which are triable only by the First Class Magistrate as per the First Schedule cannot be transferred to the Second Class Magistrate. Therefore, it cannot be said that the Sessions Judge has no competence under S. 408, Cr.P.C. to transfer a case from the Court of the Judicial Second Class Magistrate to that of the Judicial First Class Magistrate.
9. As a fortifying measure to his argument, Shri Bali Reddy, submitted that an order to commit a case to a Court of Session can be made only under S. 407, Cr.P.C. since Clause (iii) of sub-section (1) thereof contemplates the same specifically, while S. 408 is silent on this aspect. A reading of S. 407 in contrast with S. 408 of the Cr.P.C. as pointed out, reveals that there is no power vested under S. 408 in the Sessions Judge to direct committal of a particular case whereas S. 407 specifically and categorically clothes the High Court with the power to order committal of a particular case to the Court of Session. Further S. 193, Cr.P.C. is a clear bar against the Court of Session to take cognizance of an offence as an Original Court unless it is committed by a Magistrate. Committal of a case is, thus, a mandatory pre-requisite for a Court of Session to take cognizance of the offence. No doubt, under S. 323, Cr.P.C., the Magistrate can also suo motu commit a case. Whether it is under S. 209 or under S. 323, Cr.P.C. it is only after committal the Court of Session shall take cognizance of an offence. The proviso relied upon to sub-section (2) of S. 407, Cr.P.C. does not get attracted to cases of committal since it only contemplates transfer of a case. On an overall reading of these provisions, I am satisfied that it is only under S. 407 that a case can be committed to the Court of Session and not under S. 408. A similar question arose before the High Court of Orissa in Gundi Sahu v. State of Orissa, 1975 Cri LJ 1392. It held :
"An application made directly to the High Court to commit a case pending before a magistrate to the Court of Session on the ground that it was only a counter-case of another case pending before the Sessions Judge is maintainable. The contention that no such application was made to Sessions Judge before moving the High Court is not tenable because there is no provision in the new Code for Sessions Judge to direct commitment of case pending before Subordinate Magistrate to the Sessions Judge, and so the proviso to S. 407(2) will not apply to such cases. S. 408 which gives power to Sessions Judge to transfer cases from the Court to another has also no application to direct commitment to such cases. High Court only can exercise such power under S. 407(1) (c) with Clause (iii) and that power is not limited to cases triable by Sessions Court only."
Thus, the Sessions Judge has no power to order committal of a case under S. 408 and it is only the High Court under S. 407(1)(c)(iii) that can order committal of a case, with the result the proviso to sub-section (2) of S. 407 has no application to matters regarding committal. The decision of the Oudh High Court in W. E. Bottings v. Emperor, AIR 1934 Oudh 349 : (1934-35 Cri LJ 1928) is also on the similar lines as that of the Orissa High Court referred to above.
10. From the above discussion it follows that under S. 408, Cr.P.C. the Sessions Judge has neither the power to direct committal of a case to the Sessions Court nor can he order transfer of a case from one Criminal Court to another of a superior jurisdiction; as a consequence of which the crucial proviso to sub-section (2) of S. 407, Cr.P.C. would have no operation to debar maintenance of an application under S. 407, Cr.P.C. before the High Court either for transfer of a case to a Court of superior jurisdiction or for committal of a case of the Sessions Court on the ground that on such application was made earlier before the Sessions Court under S. 408 and rejected by it.
11. Before parting with this question, I have to advert to an argument, though misconceived, of the Public prosecutor that the interpretation made above to the effect that the Session Judge cannot under S. 408, Cr.P.C. transfer a case from one Criminal Court to another of a superior jurisdiction would result in equally disabling the Sessions Judge from transferring a case from the file of the Assistant Sessions Judge to that of the Addl. Section Judge, etc. It should be kept in mind that all the Courts of Session in a particular Sessions Division constitute a Unit by themselves as can be gathered from a reading of Sections 6 and 9 of the Cr.P.C. S. 28 deals with the maximum amount of sentences which the Session Judge or Addl. Sessions Judge and an Assistant Sessions Judge could pass. Keeping in view S. 28 the Sessions Judge shall make over cases from trial to the Assistant Sessions Judge and Additional Sessions Judge. Even after such making over, the Sessions Judge is at liberty to recall or withdraw any case either from the Assistant Sessions Judge or Additional Sessions Judge under S. 409 so as to try the same himself or to make it over to another Court. Therefore, the apprehension that the present interpretation that S. 408 does not authorise the Sessions Judge to transfer a case from a Criminal Court to another of superior jurisdiction would disable him even in regard to transferring cases from the Assistant Sessions Judge to Additional Sessions Judge is uncalled for.
12. It also needs to be pointed out that the decisions cited in Suresh Kumar v. State, 1981 Cri LJ 928 (Delhi) and Narasimha Rao v. State, (1968) 2 Andh WR 188 though deal with the question of maintainability of an application under S. 407, Cr.P.C. there as per the facts of those cases - did not involve Courts one of superior jurisdiction than the other. Therefore, they are of no help to the present matter. The other decisions in J. V. Bangaru Raju v. State of A.P. (1978) 2 APLJ (HC) 358 : (1979 Cri LJ NOC 57) (Madh Pra), Narasimlu, In re (1971) 1 Andh WR 258 : (1972 Cri LJ 434) and P. C. Lingaiah v. State, 1977 Cri LJ 415 (Andh Pra) are not germane to the issue involved.
13. Now, the question is whether this is a fit case for ordering transfer of C.C. No. 165/83 to the Court of the Assistant Sessions Judge, Markapur for being tried along with S.C. No. 88/83 on its file. The facts as noted disclose that there was a mutual fight which resulted in two crimes being registered by the Giddalur Police. C.C. No. 165/83 is in relation to Cr. No. 53/82 while S.C. No. 88/83 corresponds to Cr. No. 52/82. These two are, thus case and counter-case. Therefore, if they are tried and disposed of by the same Judge that would tend to the general convenience of the parties as also the witnesses besides avoiding conflict of judgments. Accordingly, I direct the case C. C. No. 165/83 on the file of the Judicial First Class Magistrate, Giddalur to be transferred to the Assistant Sessions Judge, Markapur to be tried consecutively along with S.C. No. 88/83 on the file of the Assistant Sessions Judge, Markapur. The transfer petition is accordingly allowed.
14. Petition allowed.