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"408. Power of Sessions Judge to transfer cases and appeals.--
(1) Whenever it is made to appear to a Sessions Judge that an order under this Sub-section is expedient for the ends of justice, he may order that any particular case be transferred from one Criminal Court to another Criminal Court in his sessions division.
(2) The Sessions Judge may act either on the report of the lower Court, or on the application of a party interested or on his own initiative.
(3) The provisions of Sub-sections (3), (4), (5), (6), (7) and (9) of Section 407 shall apply in relation to an application to the Sessions Judge for an order under Sub-section (1) as they apply in relation to an application to the High Court for an order under Sub-section (1) of Section 407, except that Sub-section (7) of that section shall so apply as if for the words "one thousand rupees" occurring therein, the words "two hundred and fifty rupees" were substituted."

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 Judges, 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 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 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?

10. A Full Bench of the Allahabad High Court had occasion to consider the same issue and the decision is reported in Radhey Shyam and Anr. v. State of U.P.(All.) (1984(2) Crimes 50). It has been held in the said case that all courts manned by Additional Sessions Judges in a Sessions Division are separate criminal courts for the purpose of proviso to Sub-section (2) of Section 407 and Section 408 of the Cr.P.C. To quote from paragraphs 8, 9 and 15, "8. The reason for imposing a bar on a direct application to the High Court by the proviso to Sub-section (2) of Section 407 Criminal Procedure Code appears to be the conferment of concurrent power of transfer on the Sessions Judge of case from one Criminal court to another Criminal court in his sessions division if it is expedient for the ends of justice under Section 408(1), Criminal Procedure Code and the exercise of this power on an application of a party interested under Section 408(2), Criminal Procedure Code. A party interested is thus required to move such an application before the Sessions Judge first and only after it is rejected that such an application is maintainable in the High Court under Section 407(2), Criminal Procedure Code. It may be mentioned that in view of Section 412, Criminal Procedure Code reasons have to be given by the Sessions Judge for rejecting an application under Section 408, Criminal Procedure Code. It, therefore, follows that the Sessions Judge is empowered under Section 408(1), Criminal Procedure Code to transfer a trial or an appeal from one Additional Sessions Judge to another Additional Sessions Judge in his sessions division whether its hearing has commenced or not an application by a party interested if it is expedient in the interest of justice.

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9. It is significant to note that the proviso to Sub-section (2) of Section 407, Criminal Procedure Code only bars an application by a party interested to the High Court for transferring a case from one Criminal Court to another Criminal Court in the same sessions division unless such an application for transfer has been made to the Sessions Judge and rejected by him. It does not impose any bar on the power of the High Court under Section 407(1), Criminal Procedure Code to transfer a case from one Criminal Court to another Criminal Court in the same sessions division, either on the report of the lower court or on its own initiative under Section 407(2), Criminal Procedure Code.