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10. The learned Counsel for the petitioner has, however, vehemently argued that (b) even if it be so, the impugned order was still a nullity as the Hon'ble the Chief Justice alone could not pass such an order on the administrative side. His contention was that the order with regard to the transfer of cases on the file of Additional Sessions Judge (1), Dharamsala, qua the pending criminal cases should have been passed by the High Court on the judicial side under the provisions of Section 407 of the Cr. P.C. alone. He has further contended that assuming, without conceding, that such an order could validly be passed by the High Court on the administrative side, then in that event, the Hon'ble the Chief Justice alone had no authority to do so and that it ought to have been passed by a quorum of at least three Judges of the High Court.

18. Now as regards the determination of question No. 2, it would be, in my opinion, proper to take note of relevant provisions having bearing on the same.

19. Section 407 of the new Code lays down:

407.(1); Whenever it is made to appear to the High Court

(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;

24. The learned Counsel for the petitioner does not dispute these powers vested in the High Court. His contention, however, as stated earlier, is that, in the first place, if a transfer order with regard to cases from one court to the other is passed it should be, with regard to the Criminal cases, on the judicial side under Section 407 of the Cr. P.C. and with regard to the Civil cases under Section 24 of the C.P.C. and the omnibus administrative order like the one in question would not do. He also contended that, in any case even if it is conceded that the High Court could pass such an order on the administrative side, the same cannot be passed under the order of the Hon'ble the Chief Justice alone but should be passed by a quorum of at least three Judges.

31. The learned Counsel for the petitioner has placed on record a photostat copy of the judgment of a Division Bench of Kerala High Court reported in 1980 Ker LT 95, State of Kerala v. Kuttikrishan, and has heavily relied thereon to show that an order of transfer conveyed to the transferee court by the Registrar of the High Court like the one in hand was not proper. It, however, appears that this ruling also does not support his contention. Para 7 of this judgment at page 98 has this to say:

Section 407, on the face of it, contemplates transfer of cases suo motu by the High Court. It follows that the High Court if convinced that in the interest of justice, it is necessary to transfer a case from one Court to another, it is empowered to do so even in the absence of a motion by a party to the proceedings. In the instant case, the High Court found that for some reasons, the details of which need not be enumerated here, Shri A. Antony should be transferred from Ernakulam. The deciskMt,-it is noticed, was taken by the Hon'ble the Chief Justice, the Judge in charge of the administration and the Judge incharge of the District concerned. The decision being administrative in character, it is not open to challenge here. On 20-7-1978, when the above decision was taken, the trial of the case had progressed to a considerable extent and as many as 102 witnesses had been examined. The transfer of the Judge would have caused considerable hardship to the accused since the law as it stood then did not provide for. continuation of the proceedings by the Sessions Judge and the successor Judge would have been obliged to begin the trial afresh. It was under such circumstances that the same Hon'ble Judges decided to shift the speciaF Court to Palghat and to post Sri Antony as the Judge of that Court. It was also decided to transfer the case to the Palghat Court. Thus, the decision to transfer the case to Palghat Sessions Division was not taken by the Registrar. What the Registrar did was only to communicate the order to the concerned Courts. The order of transfer being expedient for the ends of justice, in the sense that it was passed for avoiding a restarting of trial and consequent hardship to the accused, conforms to the provisions of Section 407 of the Code of Criminal Procedure. The fact that the decision was recorded on an administrative file need not necessarily meatf that it was an administrative order. When an authority invested with power to act in different capacities does a thing, it should be presumed that it does so in the capacity it is competent to act. In other words, since the High Court is the judicial authority competent to transfer the case to Palghat under Section 407 of the Code of Criminal Procedure, the inference should be that the decision to transfer the case was taken under the said provision. Even assuming that it is defective in form, the irregularity is not one which caused prejudice to the accused and did not vitiate the proceedings. It follows that the order transferring the case is not liable to be challenged on the ground that it does not conform to Section 407 of the Code of Criminal Procedure.