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Showing contexts for: section 407 in Menandbhai Maldebhai Modhvaniya vs State Of Gujarat on 22 February, 2017Matching Fragments
4. This Court in the case of C. B. Sharma V/s. State of Gujarat, reported in 2016 part-1 GLR 652 has explained the provisions of Section 408 and 409 of the Cr.P.C. I may quote the relevant paragraphs.
"16. Sections 406, 407 and 408 respectively relate to the power of the Supreme Court, High Court and Sessions Judge to transfer cases and appeals. On the other hand, Sections 409, 410 (1) and (2) and 411 relate to withdrawal of cases or recalling of cases which had been made over by the Sessions Judge, Chief Judicial Magistrate, Judicial Magistrate and the Executive Magistrate, for being thereafter tried either by himself or being made over to another Court for trial. The clear contrast in the language employed by the Legislature in the two sets of section is indicative of the difference in the nature of the power conferred thereunder. I note below the differences :
HC-NIC Page 3 of 9 Created On Sun Aug 13 14:38:23 IST 2017 R/SCR.A/943/2017 ORDER
(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.
17. 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 my 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 'partheard' cases under Section 407, the Sessions Court also will have the power to transfer 'partheard cases', as the wording of the two sections are the same. In fact, Subsection (2) of Section 407 places an embargo on an application for transfer being filed before HC-NIC Page 4 of 9 Created On Sun Aug 13 14:38:23 IST 2017 R/SCR.A/943/2017 ORDER the High Court unless an application for such transfer has been made to the Sessions Judge under Section 408 and rejected by him. (See In Re: District and Sessions Judge Raisen [2005 (3) RCR(Cri)779].