Punjab-Haryana High Court
Kamaldeen vs State Of Punjab on 3 April, 2012
Author: Ranjit Singh
Bench: Ranjit Singh
CRIMINAL MISC. M NO.2621 OF 2012 :{ 1 }:
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
DATE OF DECISION: APRIL 03, 2012
Kamaldeen
.....Petitioner
VERSUS
State of Punjab
....Respondent
CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH
1. Whether Reporters of local papers may be allowed to see the judgement?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present: Mr. P. S. Ahluwalia, Advocate,
for the petitioner.
*****
RANJIT SINGH, J.
A simple and straightforward petition praying for transfer of trial in case FIR No.11 dated 2.2.2010, presently in progress at Jalandhar, has led to interesting debate in regard to the powers of the Sessions Judge to transfer cases from one Court to another. Having failed in his challenge to seek transfer of this case before the Sessions Judge, the petitioner has filed the present petition to pray for transfer of the case and for reversing the order passed by the Sessions Judge.
This FIR was registered at the instance of petitioner, Kamaldeen, where he alongwith others is arrayed as an accused. The investigation was conducted by the police and this has led CRIMINAL MISC. M NO.2621 OF 2012 :{ 2 }:
to filing of the final report under Section 173 Cr.P.C. The case under Sections 323 324, 325, 326, 559, 148, 149 IPC is pending before the court of Additional Sessions Judge, Jalandhar. It is alleged that certain observations were made by the Court on 5.11.2011, when surety bonds and bail bonds were to be furnished by the accused. It is stated that the trial Court seems to be annoyed with the accused. This had prompted the accused-petitioner to move an application before the Court of Sessions Judge for transfer of the present case for trial by another Court. The averments in regard to the observation as made in Para 3 of the application and which have been reproduced in the present petition are as under:-
"3. That on 5.11.2011 at the time of filling surety bonds and bail bonds of the accused the Hon'ble Judge Sh.Gurjant Singh annoyed upon the accused and openly said in the open Court that "MAIN GUJJRAN TO NAFRAT KARDA HAN, KYUNKI EH LOK BAHUT GANDE HUNDE HAN, JADO DUDH CHOWNDE HAN TAN US WHICH THUKH DINDE HAN, ATE THUKIYA HOYA DUDH VAICHDE HAN, MAIN HUN EHNA DA THUK KADANGA."
It is accordingly stated that the Presiding Judge seriously injured the reputation of the accused-applicants, besides insulting them. The petitioner accordingly pleaded that the accused persons have no faith in the Presiding Officer of the Court. Ofcourse, the observations, as made, are termed as wrong apprehension in the mind of Presiding Officer about Gujjar people. The Sessions Judge, Jalandhar, however, dismissed the application by observing that the CRIMINAL MISC. M NO.2621 OF 2012 :{ 3 }:
present application was not maintainable before the said Court. The view perhaps formed is that the case can not be transferred by Sessions Judge, once the proceedings have commenced before the trial Court. Ofcourse, these reasons are not so expressed in the order and this is the grievance of the petitioner that prayer for transfer of the case has been rejected without any cogent reasons. The petitioner accordingly has approached this Court, praying for transfer of the case to some other Court and to stay the further proceedings pending before the trial Court.
When this case came up for hearing before this Court, it was considered appropriate to obtain the comments of the trial Court as well as of the Sessions Judge. The trial Court was required to give comments in regard to averments in the petition, where use of certain words was attributed to the Trial Judge. The Sessions Judge was required to give reasons as to how the petition/application for transfer was held not maintainable. In response to the same, the comments from the Trial Court as well as from Sessions Judge have been received. In his comments, the Sessions Judge has disclosed that record of the relevant case was called from the Court of Shri Gurjant Singh and it was found that charge for the offences under Sections 325, 459, 323/149, 148 IPC had already been framed against the accused. It is further mentioned that offence under Section 459 IPC is triable by the Court of Session. Mention is made to the provisions of Section 409(2) Cr.P.C., which provides that the Cessions Judge may recall any case or appeal, which he has made over to any Additional Sessions Judge at any time before the trial of the case or CRIMINAL MISC. M NO.2621 OF 2012 :{ 4 }:
the hearing of appeal has commenced before the Additional Sessions Judge. It has accordingly been viewed that the charge has already been framed in this case and, thus, the Sessions Judge was not competent to transfer the said case from the Court of Gurjant Singh, Additional Sessions Judge to any other Court. It is further stated that the power to transfer such cases would vest with the Hon'ble High Court. These comments are accordingly submitted by the Sessions Judge.
The Trial Judge, on the other hand, has submitted his separate comments. It is stated that the contents of Para 5 of the petition only relates to the Trial Judge. The Trial Judge has denied the contents of this para, being totally false. It is pointed out that no date of hearing of the case was fixed on 5.11.2011. On that day, only file was taken up on an application moved by Sh.Sher Mohammad son of Sh.Abdul Majid for furnishing of personal bonds and surety bonds on behalf of accused Sadiq @ Chakka son of Mohammad Ali, on the basis of certified copy of the order passed by this Court in Criminal Misc. 26380 of 2011. Simultaneously, it is pointed out that Sh.Sher Mohammad is not an accused in this case and the accused persons were not present before the Court on 5.11.2011. It is accordingly stated that the allegations made in Para 5 (3 of the transfer petition) would stand belied. The Trial Court has further mentioned that the application was promptly dealt with and the bail order was telephonically got verified from the High Court and thereafter release order of the accused was issued timely. The Trial Judge accordingly has expressed himself to state that he is unable to CRIMINAL MISC. M NO.2621 OF 2012 :{ 5 }:
understand the reasons for the accused to make these false allegations. Another significant fact, which is pointed out by the Trial Court is that both the parties involved in this case belong to same community and as such, the Trial Judge would justifiably state that this application perhaps has been filed when a statement of Kamaldeen was recorded in part and his further cross-examination was deferred to decide the application moved by the prosecution under Section 319 Cr.P.C. for summoning some additional accused. The Trial Judge has fairly disclosed that on that date some unnecessary arguments were being made by counsel for the complainant as well as counsel for the accused persons and he had stopped them from doing so. This perhaps has promoted the petitioner to move this application on being guided by the defence counsel. At the end, the Trial Judge has said that he would not have any objection if the case is withdrawn and entrusted to some other Court.
Having applied myself to the allegations made in the petition and to the response which has been received, I am of the view that this application has been filed without much basis and is only to seek transfer of this case from the present trial Court without any justification. If both the parties are Gujjars, as has been stated by the Trial Court, to which there is no contradiction forthcoming, then the alleged observation made by the Trial Court obviously would be meaningless and perhaps an exaggerated one. A Trial Judge, holding the appointment of Additional Sessions Judge, certainly can be expected to be discrete and can not be believed to have made any CRIMINAL MISC. M NO.2621 OF 2012 :{ 6 }:
such observations, as are being attributed to him. On the fateful date i.e. 5.11.2011, the accused were not present before the Court and as such, there would be no occasion or cause for Trial Judge to make this sort of observations, as are being attributed to him. There was no reason, cause or occasion for the Trial Judge to make such observations on 5.11.2011, when the case was not fixed before him and only bail bonds or surety bonds were to be accepted. The petitioner apparently has filed this petition on the basis of some misinformation. The allegations made in the application can not be accepted at their face value. These have been made in a rather irresponsible manner and there are sufficient reasons available on record to believe that these allegations have been made against the Trial Judge without any sense of responsibility. I am, thus, not inclined to accept this prayer of transfer of this case. If such requests are allowed on the basis of bald and unsupported assertions made by the accused person, facing criminal prosecution, it would lead to creating chaos and ultimately would tend to interfere in the administration of justice. The Officer, exercising judicial powers, can not be made to perform their duties under such like pressures. It would be easy to adopt such like tactics and make request for transfer of case. The same prayer as such deserves to be dismissed.
Another aspect of the case, which has been argued at length before me may have to be considered. The counsel for the petitioner has challenged view formed by the Sessions Judge to hold that he was not competent to transfer this case as the trial has CRIMINAL MISC. M NO.2621 OF 2012 :{ 7 }:
commenced. The Sessions Judge has apparently passed this order by invoking the provisions of Section 409 with special emphasis to sub-section (2) thereof, which lays down that the Sessions Judge may recall any case or appeal at any time before the trial of the case or before the hearing of the appeal has commenced before the Additional Sessions Judge. As per the counsel, while holding so, the Sessions Judge has completely ignored the powers available to him under Section 408 Cr.P.C., which as per the counsel, does not have any restriction on the powers of the Sessions Judge to transfer any case whatever be its stage. Section 408 Cr.P.C. provides that whenever it is made to appear to Sessions Judge that an order under this sub-section is expedient for the ends of justice, he may order that particular case to be transferred from one criminal court to another criminal court in his Sessions Division. To highlight the wide powers that the Sessions Judge would have under this Section, the counsel has made reference to sub-section (2) of Section 408 Cr.P.C., which states that the Sessions Judge may act either on the report of Lower Court or on the application of a party interested or on his own initiative.
The counsel for the petitioner has been rather emphatic in urging that the Sessions Judge would be competent to pass an order under Section 408(1) Cr.P.C, when he considers it expedient for the ends of justice and this power can be so exercised by him even in respect of Additional Sessions Judges or Assistant Sessions Judges. Section 10 Cr.P.C. is referred to, which makes a provision in regard to subordination of Assistant Sessions Judge. As per this Section, all CRIMINAL MISC. M NO.2621 OF 2012 :{ 8 }:
Assistant Sessions Judge shall be subordinate to the Sessions Judge in whose Court they exercise jurisdiction. Further, Sessions Judge may from time to time make rules consistent with this Code as to the distribution of business amongst such Assistant Sessions Judges. Sub-Section (3) of Section 10, then further provides that Sessions Judge may also make provision for the disposal of any urgent application in the event of his absence or inability to act by an Additional or Assistant Sessions Judge or if there be no Additional or Assistant Sessions Judge by Chief Judicial Magistrate and every such Judge or Magistrate shall be deemed to have jurisdiction to deal with any such application. Reference can also be made to classes of criminal Court constituted under the Codes in terms of Section 6 of the Cr.P.C. Section 7 of the Cr.P.C., then makes a provision for territorial division of the State in the Session Division. Section 9 talks of establishing a Court of Session for every Session Division, which shall be presided over by a Judge to be appointed by a High Court. The High Court is further empowered to appoint Additional Sessions Judges and Assistant Sessions Judge to exercise jurisdiction in a Court of Session. It is accordingly urged that Additional Sessions Judge would be a Court subordinate to the Sessions Judge and, thus, it is pleaded that the Sessions Judge would be fully competent to exercise powers under Section 408 Cr.P.C. to transfer any case being tried by Additional Sessions Judge, if it is considered expedient for the ends of justice.
It is submitted that the powers of the Sessions Judge under Section 408 Cr.P.C are judicial powers, whereas the power to CRIMINAL MISC. M NO.2621 OF 2012 :{ 9 }:
transfer a case under Section 409 Cr.P.C., would be in exercise of administrative powers. It may require a notice that power to make over or hand over a case for trial to Additional Sessions Judge is with the Sessions Judge and in this background and context, the power to withdraw a case earlier made over to Additional Sessions Judge may have to be considered. Various precedents have been cited before me in support of the submissions, which are noticed hereafter.
A Full Bench of Allahabad High Court in the case of Radhey Shyam and another Vs. State of U.P., 1984 All.L.J. 666, has dealt with powers of Sessions Judge under Sections 408 and 409 Cr.P.C. for transfer of cases, while considering the power of the Sessions Judge to transfer a case or appeal. It is held that part heard case or appeal from the Court of an Additional Sessions Judge can be transferred by a Sessions Judge to another competent Court in the interest of justice. It is further observed that limitations imposed under Section 409(2) Cr.P.C., are not applicable in exercise of power of transfer conferred under Section 408 Cr.P.C. The same was the plea raised in this case before a learned Single Judge where an application for transfer of the case was filed under Section 407 Cr.P.C. It was urged that the Session trial was part heard and accordingly Sessions Judge had no jurisdiction to transfer a part heard Session trial under Section 408 Cr.P.C. In support of this submission, the counsel appearing in the case before the Single Bench had relied upon a Division Bench decision of the same Court where such a view was expressed. The Single Judge was not in agreement with the view of the Division Bench and had accordingly CRIMINAL MISC. M NO.2621 OF 2012 :{ 10 }:
referred the question for decision to a Full Bench. The reference made in this regard was as under:-
"Whether a Sessions Judge has no power under Section 408 of the new Code of Criminal Procedure to transfer a part heard case or appeal from the court of an Additional Sessions Judge to some other competent court within his sessions division and the limitations imposed under section 409 Sub-clause (2) of the new Code are applicable in exercise of the power of transfer conferred under Section 408 of the new Code?"
By making reference to the provisions of Section 9 Cr.P.C., the expression `criminal court' used in Sections 526 and 528 of unamended Cr.P.C. was given a wider meaning to mean that Court exercising criminal jurisdiction. Since Section 526 Cr.P.C is similar to the provisions of Sections sub-section (2) of Section 407 Cr.P.C. and Section 528 is similar to Section 408(1) Cr.P.C., it was held that all Additional Sessions Judges in the Session Division are separate criminal courts for the purpose of proviso to Section 2 of Section 407 Cr.P.C. and Section 408(1) Cr.P.C., although they exercise jurisdiction in the same Court of Session. The word `case' used in Sections 407 and 408 Cr.P.C., was also given a wide meaning to include all trials and appeals, whether hearing had commenced or not. It is accordingly viewed that no application by a party interested in maintaining application for transfer of trial before the High Court or an appeal from one Additional Sessions Judge to another Additional Sessions Judge in the same Session Division would be maintainable CRIMINAL MISC. M NO.2621 OF 2012 :{ 11 }:
whether hearing had commenced or not, unless the application for such transfer had been made to Sessions Judge and it had been rejected by him in view of the proviso to sub-section (2) of Section 407 Cr.P.C. The proviso being referred to may be noted here for ease of appreciating and it reads as under:-
" "Provided that no application shall lie to the High Court for transferring a case from one Criminal Court to another Criminal Court in the same sessions division, unless an application for such transfer has been made to the Sessions Judge and rejected by him."
The Court had then gone into the reasons for which this bar is imposed for filing such application directly to the High Court. It is noted that the Code appears to confer a concurrent power to transfer on the Sessions Judge of the case from one criminal court to another criminal court in his Session Division, if it is expedient for the ends of justice under Section 408(1) Cr.P.C. Section 408(1) Cr.P.C. may be noted here, which is as under:-
" "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."
It is because of this concurrent jurisdiction, which can be so exercised that a proviso is made under Section 407 Cr.P.C for the party to first move an application for transfer before the Session CRIMINAL MISC. M NO.2621 OF 2012 :{ 12 }:
Court and only after rejection thereof, such an application is maintainable under Section 407(2) Cr.P.C before the High Court. On this basis, it is held that Sessions Judge is empowered under Section 408(1) Cr.P.C. to transfer a trial or an appeal from one Additional Sessions Judge to another Additional Sessions Judge in his Session Division, whether its hearing has commenced or not on an application by a party interested, if it is expedient in the interest of justice. It is noticeable that sub-section (2) of Section 407 Cr.P.C., only bars an application by a party interested in transfer of the case from one criminal court to another before such application is moved before the Sessions Judge but it does not impose any bar on the power of the High Court to transfer a case from one criminal court to another in the same Session division either on the report of the lower court or on its own initiative.
The Full Bench had further held that power conferred on the Sessions Judge under Section 409(2) Cr.P.c to recall any case or appeal, which he has made over to any Additional Sessions Judge before the trial of the case or hearing of the appeal has commenced is purely administrative as it must also be in connection with distribution of business. The relevant observations in this regard may be noted here:-
"It is noteworthy that in view of Section 194 Cr.P.C. an Additional Sessions Judge is empowered to try only such cases as the Sessions Judge of the division by general or special order makes over to him for trial and in view of Section 381(2) Cr.P.C. an Additional Sessions Judge is CRIMINAL MISC. M NO.2621 OF 2012 :{ 13 }:
empowered to hear only such appeals as the Sessions Judge of the division may by general or special order make over to him. The making over of a case for trial or an appeal for hearing to an Additional Sessions Judge by the Sessions Judge is connected with the distribution of business which is purely administrative. It, therefore, follows that the power conferred on the Sessions Judge under Section 409(2) Cr.P.C. to recall any case or appeal which he has made over to any Additional Sessions Judge before the trial of the case or hearing of the appeal has commenced, is also purely administrative as it must also be in connection with the distribution of business. It is true that the Sessions Judge is barred by Section 409 (2) Cr.P.C. to recall a case or appeal from an Additional Sessions Judge after the trial of the case or the hearing of the appeal has commenced, but from this it cannot be inferred that the power conferred on the Sessions Judge to recall a case or an appeal from an Additional Sessions Judge after the trial of the case or the hearing of the appeal has commenced, is not administrative. It appears that this bar has been imposed on the Sessions Judge by the legislature as it may have thought that it would not be proper to confer administrative power on the Sessions Judge to recall a case or an appeal from an Additional Sessions Judge after the trial of the case or the hearing of the appeal has commenced, as an Additional Sessions CRIMINAL MISC. M NO.2621 OF 2012 :{ 14 }:
Judge exercises jurisdiction in the same part of Session in which the Sessions Judge exercises jurisdiction and is thus not subordinate to him. Once the trial of a case or hearing of an appeal commences before an additional Sessions Judge, it is only proper that it is concluded before him and is not transferred by the Sessions Judge in connection with distribution of business. It is noteworthy that the Sessions Judge is empowered under Section 409(1) Cr.P.C. to withdraw any case or appeal from or recall any case or appeal which he has made over to any Assistant Sessions Judge or the Chief Judicial Magistrate subordinate to him irrespective of the fact whether the trial of the case or hearing of the appeal has commenced or not. The bar imposed on a Sessions Judge to recall a case or an appeal which he has made over to an Additional Sessions Judge after the trial of the case or the hearing of the appeal has commenced is thus a bar on the administrative power of the Sessions Judge to recall a case or an appeal from an Additional Sessions Judge in connection with the distribution of business." In contrast to this power, which are exercised by the Sessions Court under Section 408 Cr.P.C., are concurrent with the powers of High Court under Section 407 Cr.P.C and accordingly have been held to be judicial in nature and not administrative. In this regard, the Court has observed as under:-
"15.The power conferred by Sec.408(1) Cr.P.C. on the CRIMINAL MISC. M NO.2621 OF 2012 :{ 15 }:
Sessions Judge to transfer a case from one Criminal Court to another Criminal Court in his sessions division if it is expedient for the ends of justice and a similar power conferred on the High Court by Section 407(1) Cr.P.C. on an application of a party interested, is judicial and not administrative, as sub-sections (3), (4), (5), (6), (7) and (9) of Section 407 Cr.P.C. are applicable to both the Sessions Judge as well as the High Court. It is clear from the aforesaid sub-sections that the transfer of a case from one Additional Sessions Judge to another Additional Sessions Judge in the same sessions division by the Sessions Judge as well as the High Court is not done administratively in connection with the distribution of business but judicially if it is expedient in the interest of justice after hearing the parties."
Similar view would emerge from the ratio of Division Bench decision of Madhya Pradesh High Court titled In Re: By Distt. & Sessions Judge, Raisen, (M.P), Jabalpur Bench (DB), 2005(3) R.C.R. (Criminal) 779. The power of a Sessions Judge to transfer case under Sections 408, 409 and 407 Cr.P.C. has been summarized by the Division Bench in this case as under:-
"(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 CRIMINAL MISC. M NO.2621 OF 2012 :{ 16 }:
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.
(b) The judicial power under section 408(1) Cr.P.C. and the administrative power under sections 409(1) and (2) are distinct and different and section 408 is not controlled by section 409(2). A Sessions Judge in exercise of his administrative power under section 409 may :
(i) withdraw any case or appeal from any Assistant Sessions Judge or Chief Judicial Magistrate sub-ordinate to him;
(ii) recall any case or appeal which he has made over to any Assistant Sessions Judge or Chief Judicial Magistrate subordinate to him;
(iii) 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 appeal himself or make it over to another Court for trial or hearing in accordance with the provisions of Cr.P.C. No hearing need be granted CRIMINAL MISC. M NO.2621 OF 2012 :{ 17 }:
to any one before exercising such power. But the reason therefor shall have to be recorded having regard to section 412.
(c) A Sessions Judge in exercise of his administrative power under section 409, may also recall any case where trial of the case or hearing of an appeal has commenced before an Additional Sessions Judge (for the purpose of trying/hearing it himself or for being made over to another Additional Sessions Judge), if such Judge before whom it became part-heard has retired, resigned, died or is transferred outside the Sessions Division. No hearing need be given for such recalling though the reason should be recorded. It is not necessary to refer such matters to the High Court for transferring them by exercise of power under section 407 of the Code."
While taking this view, detailed reference is made to the various provisions of the Code contained in Chapter XXXI from Sections 406 to 412 Cr.P.C. These Sections deals with the transfer of criminal cases by the High Court and Court of Sessions. Reference in this context is also made to Section 194 Cr.P.C., which provides that an Additional Sessions Judge or Assistant Sessions Judge shall try such cases as the Sessions Judge of the division may by general or special order make over to him for trial or as the High Court may by special order direct him to try. A reference is then made to the different decisions of various Courts, including that of earlier decision by Madhya Pradesh High Court in Deepchand Vs. State of M.P., CRIMINAL MISC. M NO.2621 OF 2012 :{ 18 }:
1998 (2) M.P.L.J. 670 and State of Kerala Vs. Reny George, 1981 Cri.L.J. 1352 and a contrary view to these judgements taken by the Delhi High Court in Avinash Chander Vs. The State, 1983 Cri.L.J.
595. In this case it is observed that the criminal court referred to in the two sub-sections would include the Court of Additional Sessions Judge. Each of the constituent Court prescribed by Sessions Judge, Additional Sessions Judge and Assistant Sessions Judge forming the Court of Sessions in a criminal court within the same Division and the power to transfer case from one criminal court to the Court of same Sessions Division is a special jurisdiction not given to the Court of Sessions but is given to the Sessions Judge only. It is accordingly held that Section 408 Cr.P.C is the general power to be exercised for ends of justice while Section 409 Cr.P.C provides for a power more of a administrative nature given to Sessions Judge to withdraw any case or appeal made over by him to Additional Sessions Judge. It is also noticed that Section 409 Cr.P.C speaks of cases and appeals while Section 408 Cr.P.C speaks of case only. Reference is then made to Full Bench decision of Radhey Shyam's case (supra), which has followed Avinash Chander's case (supra). Having done so, the Division Bench has taken note of Section 406, 407 and 408 Cr.P.C., relating to the powers of Supreme Court, High Court and a Sessions Judge to transfer cases and appeals. It is observed that Sections 409 and 410 (1) and (2) and 411 Cr.P.C., which would relate to withdrawal of cases and recalling of cases, which had been made over by Sessions Judge, Chief Judicial Magistrate, Judicial Magistrate and Executive Magistrate for being thereafter tried either CRIMINAL MISC. M NO.2621 OF 2012 :{ 19 }:
by himself or being made over to another Court for trial. The Court had noticed the contrast in the language implied by the legislature in these two sets of Sections, which is held to be indicative of difference in the nature of powers conferred thereunder. The differences as noticed are as under:-
"(i) Sections 406, 407 and 408 use the words "whenever it is made to appear" while referring to the power of the Supreme Court, High Court or the Sessions Judge to transfer cases. Sections 409, 410 and 411 significantly do not use these words.
(ii) The captions of Sections 406, 407 and 408 speak of exercise of 'power' to transfer, whereas Sections 409, 410 and 411 do not speak of 'power' but merely refer to 'withdrawal' or 'recalling'.
(iii) Sections 406, 407 and 408 contemplate the 'power to transfer' being exercised on an application by a 'party interested' (Sections 407 and 408 also contemplate the 'power to transfer' being used on a report of the lower Court or suo motu and Section 406 contemplate the power of transfer being used on an application by the Attorney General). These sections clearly imply a need for hearing before transfer. On the other hand, Sections 409, 410 and 411 contemplate exercise of the power of withdrawal/recalling cases in a routine manner in the day to day administration. They do not contemplate any hearing to the parties interested."
CRIMINAL MISC. M NO.2621 OF 2012 :{ 20 }:
On this basis, it is held as under:-
"It is clear from the above that the power to be exercised under Sections 406, 407 and 408 is judicial power to be invoked and exercised in the manner stated therein. On the other hand, the power of withdrawing or recalling of cases under Sections 409, 410 and 411 is an administrative power, complementary to the administrative power of making over cases vested in the Chief Judicial Magistrate/Magistrate and the Sessions Judge under Sections 192 and 194 of the Code. It is also clear that the power conferred in the Sessions Judge under Section 408 is on the same level as the power conferred in the High Court under Section 407 and the power under the two sections is identical (except for two matters which are not relevant for our purposes-the first is while the power of the High Court extends over all Criminal Courts subordinate to its authority, the power of Sessions Judge is confined to Courts within its own Sessions Division; and the second is in regard to the limit of compensation awardable for frivolous applications).
Therefore, if High Court has the power to transfer 'part- heard' cases under Section 407, the Sessions Court also will have the power to transfer 'part-heard cases', as the wording of the two sections are the same. In fact, sub- section (2) of Section 407 places an embargo on an application for transfer being filed before the High Court CRIMINAL MISC. M NO.2621 OF 2012 :{ 21 }:
unless an application for such transfer has been made to the Sessions Judge under Section 408 and rejected by him."
Accordingly the view expressed in Deepchand's case (supra) was over-ruled and the law laid down in Avinash Chander's case (supra) and Radhey Shayam's case (supra) was accepted as reflecting correct view.
Noticing the legislative intend behind Section 409 Cr.P.C., it is observed:-
"17. Legislative intent behind Section 409(2) is that where the trial of the case has commenced or hearing of an appeal has commenced (for convenience 'becomes part- heard'), the case or the appeal should be continued to be tried or heard by the same Judge before whom the trial of the case or hearing of the appeal has commenced and there should be no interference with the progress of the case or appeal and, therefore, the administrative power of recalling should not be exercised. This salutary principle is to ensure speedy trial and hearing But when the Additional Sessions Judge trying the case retires or resigns or dies or is transferred out of the Sessions Division and the Court becomes vacant, the case or appeal ceases to be a part-heard case. A case or appeal can he said to be part-heard only when the trial of the case or hearing of the appeal is capable of being continued by the Judge before whom the trial or hearing CRIMINAL MISC. M NO.2621 OF 2012 :{ 22 }:
has commenced. Where the Judge before whom the matter is part- heard, ceases to be a Judge or the Court falls vacant, the matter ceases to be a part-heard matter before that Judge and file bar relating to recalling of part- heard matters, ceases to apply. It is clear from the context in which sub-section (2) has been enacted, that it applies only to cases where trial of the case or hearing of the appeal has commenced before a particular Additional Sessions Judge and such Judge continues to preside over the same Court or continues in the same Sessions Division. It the Additional Sessions Judge is transferred to some other Sessions Division or ceases to be a Judge on account of resignation, retirement or death resulting, in the Court becoming vacant, the restriction placed on the power under sub-section (2) of Section 409 will cease to apply and as a consequence the Sessions Judge can recall the case or appeal under Section 409(2). But where the Additional Sessions Judge is transferred within the Sessions Division or is on leave or under suspension, the restriction over the administrative power under Section 409(2) may continue to exist."
Similar is the view of Division Bench of Kerala High Court in T.S.Surendra Kumar Vs. K.Vijayan and another, 2006 (1) R.C.R. (Criminal) 250. This was, when the reference was made in the light of law laid down by the said Court in Reny George's case (supra). The Division Bench, after making reference to Sections 9, CRIMINAL MISC. M NO.2621 OF 2012 :{ 23 }:
10, 194, 381, 397 and 400 besides Sections 407, 408, 409, 412 Cr.P.C., has gone into the aspect of subordination and use of expression `inferior' in Section 397 Cr.P.C. to conclude as under:-
"6. The provisions quoted above would clearly give a picture as to the making over, recalling and transferring of cases within a sessions division. It is clear from Section 194 that an Additional Sessions Judge is to handle only those cases which are made over to him by the Sessions Judge of the division. It needs no elaborate discussion to note that the expression 'case' used in this context is meant to include appeals, as can be seen from Section 400 also. Under Section 409, the Sessions Judge who made over the cases to the Additional Sessions Judge is empowered to withdraw any case or appeal before the trial of the case or the hearing of the appeal has commenced. Being the Sessions Judge, he has to take over the administration of criminal justice in his sessions division and hence in the exigencies of such administration, he has to make over, withdraw or recall cases and appeals and make over the same appropriately for the proper streamlining of the administration of criminal justice in the sessions divison. It is fairly clear from the scheme of the Code that the exercise of power by the Sessions Judge under Sections 194 read with 409 (2) is administrative in nature, it is simple distributions of work. The question is how to invoke the power under CRIMINAL MISC. M NO.2621 OF 2012 :{ 24 }:
Section 409. Is it open to a litigant to move the Sessions Court for such withdrawal or recall ? Once there is source of power as conferred under the Code, one need not labour much as to how to exercise that power. It could be suo motu and it could be on motion made by a litigant. But the scope of the motion is only for administrative convenience. As in the instant case, since the facts and law are intertwined in all the three appeals, the petitioner is certainly free to move the Sessions Judge under Section 409 Cr.P.C. for withdrawing and making over the appeals to one Additional Sessions Court so that all the three appeals could be heard together. Since Section 412 warrants reasons to be recorded for such withdrawal, naturally the Sessions Judge has to record the administrative convenience for which the withdrawal and making over is made.
7. Though posed as an incidental question in the reference order, as already noted above, the crucial question is whether a transfer is possible at the hands of the Sessions Judge. Under Section 9 of the Code, there is only one Court of Session for every sessions division and that is to be presided by a Sessions Judge. However, there could be Additional Sessions Judge, as provided under sub-section 3 of Section 9. The courts manned by such Additional Sessions Judges are known and described as courts of Additional Sessions Judges. Such CRIMINAL MISC. M NO.2621 OF 2012 :{ 25 }:
courts manned by Additional Sessions Judges in a sessions division are also criminal courts, as far as Chapter XXXI of the Code is concerned. Chapter XXXI deals with Transfer of Criminal Cases. The first provision Section 406 deals with the power of the Supreme Court and 407 with that of the High Court. While dealing with the powers of the High Court it is provided that the High Court may exercise its power under Section 407 in three modes, (1) on the report of the lower court, (2) on the application of a party interested, and (3) suo motu. As far as the second mode, viz., transfer on the application of a party interested is concerned, it is clearly stipulated in the proviso that an application by the party interested shall lie before the High Court only if an application for such transfer had already been made before the Sessions Judge and rejected by him. In other words, it is clear that the jurisdiction is not concurrent. The interested litigant is entitled to approach the High Court for transferring a case pending before one criminal court to another criminal court in the same sessions division only after approaching the Sessions Judge and aggrieved by the refusal thereof. As already noted above, one course is under Section 409 for withdrawing or recalling and making over. But under Section 409(2), once the trial of the case has commenced, or the hearing of the appeal has started, exercise of that power under Section 409 administrative CRIMINAL MISC. M NO.2621 OF 2012 :{ 26 }:
exercise of power is barred. Should it mean that in such a situation, the only resort is the High Court ? If so, what is the logical meaning and purpose of the proviso under Section 407(2), and Section 408 ?
8. Section 408 is captioned as Power of Sessions Judge to transfer cases and appeals. It is not a power on the Court of Session. It is a power conferred on the Sessions Judge presiding over the Court of Session. Section 408 provides that the power of transfer of a criminal case from one criminal court to another criminal court in the sessions division is to be exercised only if it is expedient for the ends of justice. It does not require an elaborate discussion to hold that it is a judicial exercise of power.
The power under Section 408 can be exercised in three modes : (1) on the application of an interested party, (2) suo motu, (3) on the report of the lower court. There is no quarrel for the proposition that the Sessions Judge is empowered to transfer any case or appeal at any stage pending before the Assistant Sessions Court. But should that power be limited to transfer of cases in the inferior criminal courts only ? 'Inferior criminal court' is an expression used only under Section 397 while dealing with the powers of revision. It is pertinent to note that the expression "subordinate" is conspicuously absent under Section 408. The Additional Sessions Judge is not subordinate to the Sessions Judge also. But it has to be CRIMINAL MISC. M NO.2621 OF 2012 :{ 27 }:
noted that the Additional Sessions Judge gets jurisdiction to deal with a case only if such a case or appeal is made over to him by the Sessions Judge. Any time prior to the trial or hearing of the case or appeal as the case may be, the Sessions Judge is also empowered to withdraw such cases. Thus, though the Court of Additional Sessions Judge is not inferior and though the Additional Sessions Judge is not subordinate to the Sessions Judge, as far as administration of criminal justice in the sessions division is concerned, there is an administrative subordination in the sense that the Additional Sessions Judge gets jurisdiction only in respect of the cases made over to him and such cases are liable to be withdrawn also before commencement of the trial or hearing. It appears that the legislature had advisedly used the expression 'lower' and not 'subordinate or inferior' to ensure that the power under Section 408 can extend to issue of directions for transfer of a case pending before the Additional Sessions Court. As already noted above, the Court of an Additional Session Judge is also a criminal court in the sessions division. Under the proviso to Section 407(2) in the matter of transfer of a case on the application of an interested litigant before the High Court, such application would lie only if a motion had already been made before the Sessions Judge and rejected by him. That power conferred on the Sessions Judge is meant in the interests CRIMINAL MISC. M NO.2621 OF 2012 :{ 28 }:
of the litigant public as also for lessening the burden of the High Court, lest for every transfer of a criminal case or appeal in a sessions division, the litigant public will have always to approach the High Court. Since the power under Section 408 is judicially exercised and since reasons are to be recorded as provided under Section 412, any party aggrieved can always take recourse to the revisional remedy under Section 391. So much so, the conferment of the power of the Sessions Judge to transfer a criminal case at any stage from the Court of one Additional Sessions Judge will not cause any irreparable injury to a party to the litigation." The Division Bench has then drawn an analogy regarding the exercise of power by District Court under Section 24 of Code of Civil Procedure, which regulate the general power of transfer and withdrawal. It is observed that Presiding Officer of the District Court is a District Judge and District Judge on civil side is empowered to transfer any case at any stage from one Additional District Judge to another. If that be so, then why should there be a restricted meaning of transfer on a criminal side for only reason that provision akin to Section 24 (3) regarding subordination is not expressly provided in the Code of Criminal Procedure. The Court has accordingly observed that should not that enabling provision be read into Section 408 since this Section appears under Chapter 31 of the Code dealing with transfer of criminal cases and this Section itself is captioned as power of Sessions Judge to transfer cases and appeals from one CRIMINAL MISC. M NO.2621 OF 2012 :{ 29 }:
criminal Court to another criminal court. The Division Bench has again referred to and relied upon the Full Bench decision in the case of Radhey Shyam (supra) and that of Avinash Chander's case (supra) of Delhi High Court. The law as summed up is noticed as under:-
"(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 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."
Somewhat contrary view taken by Single Bench of this CRIMINAL MISC. M NO.2621 OF 2012 :{ 30 }:
Court though not expressed in very expressive and elaborate form has also been placed before me. Reference is made to the case of Karan Singh Vs. Khazan Singh, 1998(2) R.C.R. (Criminal) 431. While interpreting the provisions of Section 409(2) Cr.P.C., this court has observed that application for transfer of Sessions trial from court of Additional Sessions Judge in a part heard case is maintainable before the High Court and not before the Sessions Judge. This observation is recorded in response to a preliminary objection raised before this court by the respondents therein that such transfer application should have been filed first before the court of Sessions. In response, this court has observed as under:-
"In my opinion, that objection is without any substance in view of Clause (2) of Section 409 Cr.P.C. Which states that transfer of Sessions Judge can be effected by the sessions Judge, before the hearing of the case is commenced. In this case, admittedly, the Sessions trial has been partly heard inasmuch as deposition of some witnesses has already been recorded. In my opinion, therefore, the transfer application has been rightly filed in this Court."
After disposing of this preliminary objection with the above-noted observations, the court declined the prayer of the petitioner for transfer where the petitioner had alleged that Judge had asked the witness that he would put him in jail if he deposed falsely. This was not considered to be a valid ground for transfer of the case. A similar view expressed by Calcutta High Court in Debasis Dutta & CRIMINAL MISC. M NO.2621 OF 2012 :{ 31 }:
others Vs. State of West Bengal, 2002(3) AICLR 726 is also referred to and placed before me. In this regard only, reference is made to Punjab Singh and others Vs. State of U.P. 1983 Crl.LJ 205 and Nitinbhai Saevatilal Shah and another Versus Manubhai Manjibhai Panchal and another, AIR 2011 (SC) 3076. These two were the cases where the Court was considering the right of the accused to seek decision of his case by a Judge who has heard and recorded the evidence unless the jurisdiction of the first judge to continue the trial is taken away either under statutory provisions or by order of competent court. The Hon'ble Supreme Court, however, was dealing with the case of Negotiable Instruments Act by way of summary trial and it is observed that the Magistrate who has recorded the evidence, then the successor cannot pronounce the judgment on the basis of evidence recorded by his predecessor.
These cases simply were not those where the issue of transfer of a case under Sections 408 or 409 Cr.P.C.was under consideration.
The incidental question, thus, here would arise whether the view expressed by the learned Single Judge of this court in Karan Singh's case (supra), would have any binding precedent for this court to follow or any other appropriate view can be taken by this Court.
Firstly, this court in Karan Singh's case (supra) had not considered the provisions of Section 409 in the context of Section 408 Cr.P.C.. No elaborate submissions were also made in regard to the nature of powers that are exercised under Sections 409 and 408. In fact, this court in Karan Singh's case (supra) has not considered CRIMINAL MISC. M NO.2621 OF 2012 :{ 32 }:
the provisions of Section 408 Cr.P.C.at all while observing that the Sessions Judge cannot transfer a partly heard case. Whether this case would be a precedent of binding nature or not, thus, may also require consideration.
Hon'ble Supreme Court in Municipal Corporation of Delhi Vs. Gurnam Kaur, AIR 1989 (SC) 38=1989(1) SCC 101 to an extent has considered as to when a judgment can be taken as a binding precedent. Noticing that earlier order passed by the Supreme Court, which was followed as a binding precedent, was a consent order, the court has observed that a consent order is not a binding precedent. The Hon'ble Supreme Court in an earlier case had issued direction to Municipal Corporation to construct stalls for pavement squatters passed on consent of the parties. In this background, it is observed that High Court should not follow the same as precedent in other cases.
In this regard, the Hon'ble Court has expressed itself as under:-
" We find it rather difficult to sustain the judgment of the High Court. The learned Judges failed to appreciate that this Court in Jamna Das' case made a direction with the consent of parties and with the reservation that it should not be treated as a precedent. It expressed no opinion on the question whether there was any statutory obligation cast on the Municipal Corporation to provide alternative site to a person making illegal encroachment on a public place like any public street etc.........".
CRIMINAL MISC. M NO.2621 OF 2012 :{ 33 }:
10. It is axiomatic that when a direction or order is made by consent of the parties, the Court does not adjudicate upon the rights of the parties nor lay down any principle. Quotability as 'law' applies to the principle of a case, its ratio decidendi. The only thing in a Judge's decision binding as an authority upon a subsequent Judge is the principle upon which the case was decided. Statements which are not part of the ratio decidendi are distinguished as obiter dicta and are not authoritative. The task of finding the principle is fraught with difficulty because without an investigation into the facts, as in the present case, it could not be assumed whether a similar direction must or ought to be made as a measure of social justice. That being so, the direction made by this Court in Jamna Das' case could not be treated to be a precedent. The High Court failed to realise that the direction in Jamna Das' case was made not only with the consent of the parties but there was an interplay of various factors and the Court was moved by compassion to evolve a situation to mitigate hardship which was acceptable by all the parties concerned. The Court no doubtmade incidental observation to the Directive Principles of State Policy enshrined in Art. 38(2) of the Constitution and said:..........."
11. Pronouncements of law, which are not part of the ratio decidendi are classed as obiter dicta and are not CRIMINAL MISC. M NO.2621 OF 2012 :{ 34 }:
authoritative. With all respect to the learned Judge who passed the order in Jamna Das' case and to the learned Judge who agreed with him, we cannot concede that this Court is bound to follow it. It was delivered without argument, without reference to the relevant provisions of the Act conferring express power on the Municipal Corporation to direct removal of encroachments from any public place like pavement or public streets, and without any citation of authority. Accordingly, we do not propose to uphold the decision of the High Court because, it seems to us that it is wrong in principle and cannot be justified by the terms of the relevant provisions. A decision should be treated as given per incuriam when it is given in ignorance of the terms of a statute or of a rule having the force of a statute. So far as the order shows, no argument was addressed to the Court on the question or not whether any direction could properly be made compelling the Municipal Corporation to construct a stall at the pitching site of a pavement squatter. l In this case only, reference is made to the doctrine of sub silentio. In this regard, the view of Professor P.J. Fitzgerald is noted where this concept is explained as under:-
"A decision passes sub silentio, in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is CRIMINAL MISC. M NO.2621 OF 2012 :{ 35 }:
not perceived by the court or present to its mind. The Court may consciously decide in favour of one party because of point A, which it considers and pronounces upon. It may be shown, however, that logically the court should not have decided in favour of the particular party unless it also decided point B in his favour; but point B was not argued or considered by the court. In such circumstances, although point B was logically involved in the facts and although the case had a specific outcome, the decision is not an authority on point B. Point B is said to pass sub silentio."
It is observed that where point which is argued in a subsequent case where it is not debated in an earlier case then the court could not be bound by its previous decision. In this regard reference is made to the case of Gerand v. Worth of Paris Ltd.(K), (1936) 2 All ER 905. The relevant observations of the Hon'ble Supreme Court on the basis of these two judgments can be referred here and are as under:-
"In Gerard v. Worth of Paris Ltd. (k)., [1936] 2 All E.R.905 (C.A.), the only point argued was on the question of priority of the claimant's debt, and, on this argument being heard, the Court granted the order. No consideration was given to the question whether a garnishee order could properly be made on an account standing in the name of the liquidator. When, therefore, this very point was argued in a subsequent case before the Court of Appeal in CRIMINAL MISC. M NO.2621 OF 2012 :{ 36 }:
Lancaster Motor Co. (London) Ltd. v. Bremith, Ltd., [1941] 1 KB 675, the Court held itself not bound by its previous decision. Sir Wilfrid Greene, M.R., said that he could not help thinking that the point now raised had been deliberately passed sub silentio by counsel in order that the point of substance might be decided. We went on to say that the point had to be decided by the earlier court before it could make the order which it did;
nevertheless, since it was decided "without argument, without reference to the crucial words of the rule, and without any citation of authority", it was not binding and would not be followed. Precedents sub silentio and without argument are of no moment. This rule has ever since been followed. One of the chief reasons for the doctrine of precedent is that a matter that has once been fully argued and decided should not be allowed to be reopened. The weight accorded to dicta varies with the type of dictum. Mere casual expressions carry no weight at all. Not every passing expression of a Judge, however eminent, can be treated as an ex cathedra statement, having the weight of authority.
The Hon'ble Supreme Court has again considered the concept of sub silentio and per incurium in Deb Narayan Shyam Vs. State of West Bengal, AIR 2005 (SC) 1167= 2005(2) SCC 286. It is observed that the judgment based on consideration of only one point in a case involved two points depending upon the conclusion of each CRIMINAL MISC. M NO.2621 OF 2012 :{ 37 }:
other and when one point is left unnoticed or undetermined, that is called " sub silentio". The judgment in which the relevant Rules and earlier binding precedents have not been noticed, cannot be a binding precedent or res judicata in a subsequent case where the same are brought to the notice of the court and the court, thus, can reach a different conclusion on that basis in subsequent cases by considering the left out issue in the earlier cases.
This issue arose before the Hon'ble Supreme Court in Deb Narayan Shyam's case (supra) in the background to see the effect of various decisions/orders passed by learned Single Judge in 36 writ petitions. It is noticed that in all these cases no affidavit was filed by the State and the court had recorded its order that the State despite opportunity had not filed any affidavit. It is observed that the learned Single Judge had neither examined the detailed functioning of the Amins and that of the Surveyors, but only relied upon the opinion expressed by the Deputy Commissioner on representations filed by Amins that they discharged similar functions and duties.
Subsequently, when this matter came up before another Judge, who was of the view after examining the matter that the earlier decision given by the court could not be accepted and dismissed the writ petition. When some more matters came to be heard by the Judge, who had passed the subsequent orders, he referred the matter to the Chief Justice for being placed before a Division Bench. The Division Bench accordingly was of the view that the decisions given by the earlier Single Bench were without any affidavit by the State and without properly examining the duties and functions of the CRIMINAL MISC. M NO.2621 OF 2012 :{ 38 }:
petitioners therein and they were, thus, to be treated as per incurium. In this context, the Hon'ble Supreme Court again considered the doctrine of sub silentio by referring to the view of prof.P.J.Fitzgerald, as already noticed and referred to the same judgments in the case of Gerard's case (supra). It is further observed that the rule that a precedent sub silentio is not authoritative goes back at least to 1661, when the counsel said "An hundred precedents sub silentio are not material" and twisden, J. agreed: "precedents sub silentio and without argument are of no moment".
In The Regional Manager & anr. v. Pawan Kumar Dubey, AIR 1976 SC 1766, it is observed:-
"It is the rule deducible from the application of law to the facts and circumstances of a case which constitutes its ratio decidendi and not some conclusion based upon facts which may appear to be similar. One additional or different fact can make a world of difference between conclusion in two cases even when the same principles are applied in each case to similar facts."
The doctrine of sub silentio is again considered in detail by the Hon'ble Supreme Court in a recent decision in State of U.P. & Ors. Vs. Jeet S. Bisht & Anr., JT 2007(8) 59=2007(6) SCC 586. Reference again is made to Municipal Corporation of Delhi's case (supra) where the meaning of judgment sub silentio has been explained.
The principle of sub silentio has thereafter been followed by the Hon'ble Supreme Court in number of decisions, which can be CRIMINAL MISC. M NO.2621 OF 2012 :{ 39 }:
noted as:-
"State of U.P.& Anr. v. Synthetics & Chemicals Ltd. & Anr. (1991) 4 SCC 139, Arnit Das v. State of Bihar (2000) 5 SCC 488, A-One Granites v. State of U.P. & Ors. (2001) 3 SCC 537, Divisional Controller, KSRTC v.
Mahadeva Shetty & Anr. (2003) 7 SCC 197 and State of Punjab & Anr. v. Devans Modern Breweries Ltd. & Anr. (2004) 11 SCC 26."
The principle of sub silentio would come into play and the view expressed by this court in Karan Singh's case (supra) may not be taken to be laying down any binding principle to be followed as the issues as are arising before this court were neither debated nor were under consideration before this court in the said case.
Thus, it will be safe to conclude that this court in Karan Singh's case (supra) has neither considered the powers that are available under Sections 408 and 409 Cr.P.C. nor this issue was ever raised. In view of the ratio of law as laid down by the Hon'b;le Supreme Court, this view expressed in Karan Singh's case (supra) that the Sessions Judge cannot affect transfer in a case where hearing has commenced, would only be a view on the basis of Section 409(2) and would not be any binding precedent for the analysis of power of the Sessions Judge under Sections 408 and 409 Cr.P.C. The doctrine of sub silentio, thus, is clearly attracted in this case. The issue of the powers of the Sessions Judge to transfer a case or appeal under Sections 408 Cr.P.C. was never debated earlier before this court while it was deciding the cases of Karan Singh and CRIMINAL MISC. M NO.2621 OF 2012 :{ 40 }:
Umed Singh (supra). This judgment, thus, cannot be a binding precedent for this court to express the opinion in regard to the powers of the Sessions Court to transfer cases and appeal under Sections 408 and 409 Cr.P.C., respectively.
Reference in detail has been made to the provisions of Sections 9 and 10 of the Cr.P.C. to notice that there shall only be one Court of Session for every sessions division, which is to be presided over by a Sessions Judge. Section 10 Cr.P.C. deals with the subordination of Assistant Sessions Judges and Section 10(3) still provides that the Sessions Judge may also make provision for the disposal of any urgent application in the event of his absence or inability to act, by an Additional or Assistant Judge. If there be no Additional or Assistant Sessions Judge, then by a Chief Judicial Magistrate. Thus, it is possible to construe that the position is clear that only the Assistant Sessions Judge is suburbanite to the Sessions Judge of the division and not the Additional Sessions Judge. Section 194 then provides that Additional Sessions Judge or Assistant Sessions Judge shall try such cases as the Sessions Judge of the Division, may by general or special order, make over to him for trail or the High Court may, by special order, direct him to try. As per Section 400 Cr.P.C., Additional Sessions Judge shall have power and may exercise all powers of Sessions Judge in respect of any case which may be transferred to him by or under any general or special order of the Sessions Judge. Then comes Sections 407, 408 and 409 Cr.P.C. This when read with the provisions of Section 412, which requires a Sessions Judge or a Magistrate to record reasons CRIMINAL MISC. M NO.2621 OF 2012 :{ 41 }:
while making order under Section 408, 409 or Section 411 Cr.P.C.would indicate that the Sessions Judge who made over the case to the Additional Sessions Judge is empowered to withdraw any case or appeal before the trial of the case or the hearing of the appeal had commenced. It is also clear that being the Sessions Judge, he has to take over the administration of a criminal justice in his Sessions Division and hence in the exigencies of such administration, he has to make over, withdraw or recall cases or appeals or make over the same appropriately for the proper streamlining of the administration of the criminal justice in the sessions division as is observed in Re: by Distt.& Sessions Judge, Raisen (supra). It would be fair to view that under the Scheme of the Code, the Sessions Judge exercise powers which are administrative in nature while passing order under Section 194 read with Section 409 (2) Cr.P.C. It is a question of distribution of work at that stage. It may be open to litigant to approach the Sessions Judge for withdrawal or recall by moving such an application under Section 409 Cr.P.C. it could be done suo motu and it could be on the motion of litigant. Section 406 deals with the powers of the Supreme Court whereas Section 407 Cr.P.C. deals with the powers of the High Court to transfer cases. The High Court can exercise its power in three manners, i.e., (1) on the report of the lower court, (2) on the application of a party interested, and (3) even suo motu. This Section further clearly provides that an application by the party interested shall lie before the High court only if such an application for transfer had already been made before the Sessions Judge and rejected by CRIMINAL MISC. M NO.2621 OF 2012 :{ 42 }:
him. The litigant is entitled to approach the High Court for transfer of a pending case before one criminal court to another criminal court in the same sessions division only after approaching the Sessions Judge and if he is aggrieved by the refusal thereof. First course available may be under Section 409(2), but once the hearing of the case or appeal had commenced, the exercise of this administrative power apparently is barred. If in such a situation, the only remedy available is to approach the High court, then there would not be any purpose or logic to make a proviso under Section 407(2) Cr.P.C. or Section 408 itself. As is rightly noticed, Section 408 deals with powers of Sessions Judge to transfer cases and appeal . It is not a power of Court of Sessions. This power is conferred on Sessions Judge presiding over a Court of Session. The power of transfer under Section 408 Cr.P.C. is exercisable if it is expedient for the ends of justice. This term in itself would be enough to view that such powers could be in exercise of judicial powers.
Additional Sessions Judge may not be subordinate or a court inferior to Court of Session, but he would get jurisdiction to deal with a case only if such a case or appeal is made over to him by Sessions Judge. Undoubtedly, the Sessions Judge has also the power to withdraw any case or appeal prior to the commencement of hearing. Thus, the Additional Sessions Judge is administratively subordinate to the Sessions Judge as he would get jurisdiction only in respect of cases made over to him which are also liable to be withdrawn before the commencement of trial on hearing. It is noted that the expression used in Section 408 is `lower' and not CRIMINAL MISC. M NO.2621 OF 2012 :{ 43 }:
`subordinate' or `inferior' to ensure that power under Section 408 can extend to issue of directions for transfer of a case pending before Additional Sessions Judge's Court. Since for transfer of a case under Section 408, reasons are required to be recorded as per Section 412, the party aggrieved can always take recourse to remedy under the law and, thus, the power so conferred on the Sessions Judge would not lead to causing any irreparable injury to any party to the litigation. Otherwise, the Division Bench of Madhya Pradesh High Court in Re: by Distt.& Sessions Judge, Raisen's case (supra) has analysed the scope of Sections 408 and 409 Cr.P.C.to hold that the Sessions Judge exercises the judicial power under Section 408 and, thus, he can transfer cases from one Additional Sessions Judge to another Additional Sessions Judge in the same sessions division even when the trial has commenced. The restriction to transfer such cases after commencement of trial would apply only when the Sessions Judge intends to exercise his administrative power under Section 409(2) Cr.P.C.
In view of the detailed discussion above, the view expressed by Full Bench of Allahabad High Court, which has subsequently been followed by a Division Bench of Madhya Pradesh High Court and also by Division Bench of Kerala High Court and a Single Judge of Delhi High Court clearly is reflecting a correct view of law. If the power of the Sessions Judge is curtailed to transfer cases after the commencement of the case or appeal as given under Section 409, then the provisions of Section 408 would become redundant. There was no purpose then to legislate this section. The CRIMINAL MISC. M NO.2621 OF 2012 :{ 44 }:
reason for which the case can be transferred under Section 408 Cr.P.C. is the exigency for the ends of justice or on the report of the lower court or on an application of interested party or on his own initiative. No such requirement would arise while invoking the jurisdiction and power under Section 409 Cr.P.C., which is an administrative power of transfer of a case or appeal. Such powers apparently were necessary when viewed in the background that it is the Sessions Judge who is to make over the cases to Additional and Assistant Sessions Judges and they can try only those cases which are made over to them by the Sessions Judge in this manner. Obviously, if he had the power to assign cases or the appeals to Additional and Assistant Sessions Judges, he obviously would have power to withdraw those cases and this is reiterated in Section 409 Cr.P.C. which is for better administration of criminal justice. In addition, a provision has also been made entitling the Sessions Judge to exercise judicial power to transfer case or appeal at any stage if the requirement of Section 408 Cr.P.C. is satisfied. Section 409, therefore, apparently does not control Section 408 in any manner. The reasons and the purpose and the requirement for exercise of powers being clearly different and defined, it would not, therefore, be fair to read the restrictions contained in Section 409 Cr.P.C. into the provisions of Section 408 Cr.P.C. which are clearly independent of each other. In the passing, it may also need to be observed that a party perhaps would be in a position and entitled to move application for transfer of a case only under Section 408 Cr.P.C., whereas may not have much say while the Sessions Judge CRIMINAL MISC. M NO.2621 OF 2012 :{ 45 }:
in exercise of his administrative power may transfer or withdraw any case from any particular court of Additional or Assistant Sessions Judge. Since this court has not found any viable reasons to transfer this case on the basis of allegations made, no useful purpose would be served by sending the case back to the Sessions Court for fresh decision, but the view expressed by the Sessions Judge that the application was not maintainable cannot be accepted as a correct view of law. The same cannot be accepted as sustainable in laws.
The petition is accordingly disposed of.
April 03, 2012 (RANJIT SINGH ) khurmi JUDGE