2005 (10) TMI 622 - HC - Indian Laws

Transfer of criminal cases within a sessions division: Sessions Judge can transfer cases from Additional Sessions Judges; parties must first apply to Sessions Judge

Whether a Sessions Judge may transfer criminal cases or appeals within a sessions division, including matters pending before Additional Sessions Judges, ... Power of Sessions Judge under Section 408 to transfer cases and appeals - Withdrawal and recall of cases by Sessions Judge under Section 409 - Proviso to Section 407(2): requirement to move Sessions Judge before High Court - Administrative subordination of Additional Sessions Judges - Recording of reasons under Section 412 - Revisional remedy under Section 397Withdrawal and recall of cases by Sessions Judge under Section 409 - Recording of reasons under Section 412 - Administrative subordination of Additional Sessions Judges - An interested litigant may invoke Section 409 before the Sessions Judge to withdraw or recall cases or appeals made over to an Additional Sessions Judge, provided trial or hearing has not commenced. - HELD THAT: - The Court held that Section 409 confers an administrative power on the Sessions Judge to withdraw or recall cases or appeals made over to an Additional Sessions Judge prior to the commencement of trial or hearing. That power is administrative in nature and forms part of the Sessions Judge's role in administering criminal justice in the division. Section 412 requires reasons to be recorded for such withdrawal or recall, and the scope of the motion is limited to administrative convenience and proper streamlining of cases. A party is therefore entitled to move the Sessions Judge under Section 409 for withdrawal/recall so that matters may be appropriately re-made over. [Paras 5, 11]Section 409 can be invoked by a party to seek withdrawal or recall of cases/appeals made over to an Additional Sessions Judge before trial or hearing begins.Power of Sessions Judge under Section 408 to transfer cases and appeals - Administrative subordination of Additional Sessions Judges - Revisional remedy under Section 397 - The Sessions Judge has judicial power under Section 408 to transfer cases and appeals, including those pending before an Additional Sessions Judge, if expedient for the ends of justice. - HELD THAT: - The Court examined the scheme of the Code and concluded that Section 408 vests a judicial power in the Sessions Judge to transfer criminal cases or appeals within the sessions division when expedient for the ends of justice. Although an Additional Sessions Judge is not formally subordinate, there exists an administrative subordination because an Additional Sessions Judge exercises jurisdiction only over cases made over to him and such cases can be withdrawn or transferred by the Sessions Judge. The proviso to Section 407(2) and the structure of Chapter XXXI indicate that the power of transfer by the Sessions Judge extends to courts of Additional Sessions Judges. Any aggrieved party may seek revision under Section 397 against the Sessions Judge's exercise of this judicial power. [Paras 6, 7, 8, 10, 11]Section 408 empowers the Sessions Judge to transfer cases and appeals pending before an Additional Sessions Judge where such transfer is expedient for the ends of justice.Proviso to Section 407(2): requirement to move Sessions Judge before High Court - Power of Sessions Judge under Section 408 to transfer cases and appeals - A litigant must first move the Sessions Judge under Sections 408/409 before seeking a transfer under Section 407 in the High Court for matters within the same sessions division. - HELD THAT: - The Court held that the proviso to Section 407(2) bars a direct application to the High Court for transfer of a case between criminal courts in the same sessions division unless the applicant has first applied to the Sessions Judge and been rejected. Because the Sessions Judge possesses concurrent power under Section 408 to transfer cases (including those before Additional Sessions Judges), the legislative purpose of the proviso-to reduce burden on the High Court and afford the Sessions Judge an opportunity to exercise his power-would be frustrated if parties could bypass the Sessions Judge. Consequently, an application under Section 407 to the High Court is not maintainable unless the Sessions Judge has been first approached. [Paras 6, 7, 11]An applicant must first approach the Sessions Judge under Sections 408/409 and be refused before seeking transfer under Section 407 in the High Court for matters in the same sessions division.Administrative subordination of Additional Sessions Judges - Power of Sessions Judge under Section 408 to transfer cases and appeals - An Additional Sessions Judge may make a report to the Sessions Judge seeking transfer of cases or appeals pending before him at any stage. - HELD THAT: - The Court noted that courts of Additional Sessions Judges are criminal courts within the sessions division and, consistent with the administrative scheme, the Additional Sessions Judge may report to the Sessions Judge for transfer of cases or appeals pending before him. This right to report is consistent with the Sessions Judge's power under Section 408 to transfer cases for the ends of justice and does not depend on the stage of the proceedings. [Paras 7, 11]An Additional Sessions Judge is entitled to make a report to the Sessions Judge for transfer of cases or appeals pending before him, irrespective of the stage of those matters.Final Conclusion: The Full Bench overruled the contrary view in State of Kerala v. Reny George: parties may invoke Section 409 for withdrawal/recall before hearing commences; the Sessions Judge has judicial power under Section 408 to transfer cases (including those before Additional Sessions Judges) when expedient for ends of justice; a party must first apply to the Sessions Judge before approaching the High Court under Section 407; and an Additional Sessions Judge may report to the Sessions Judge for transfer. Issues: (i) Whether a Sessions Judge has power under Section 408 Cr.P.C. to transfer a case or part-heard appeal from the court of an Additional Sessions Judge to another criminal court within the same sessions division; (ii) Whether a litigant, as a matter of right, can approach the Sessions Judge under Section 409 Cr.P.C. for withdrawal or recall of a case already made over to an Additional Sessions Judge; (iii) Whether a litigant must first exhaust remedies before the Sessions Judge under Sections 408 or 409 Cr.P.C. before approaching the High Court under Section 407 Cr.P.C. for transfer.Issue (i): Whether a Sessions Judge has power under Section 408 Cr.P.C. to transfer cases or appeals pending before an Additional Sessions Judge to another criminal court within the same sessions division.Analysis: Section 408 confers a power on the Sessions Judge to transfer cases where expedient for ends of justice and may be exercised on application of a party, on report of a lower court or suo motu; Additional Sessions Courts are criminal courts within the sessions division and obtain jurisdiction only when matters are made over by the Sessions Judge; the statutory scheme, the proviso to Section 407(2) and the requirement of reasons under Section 412 indicate that the Sessions Judge's transfer power extends to matters pending before Additional Sessions Judges; analogous civil provisions and precedent support this interpretation.Conclusion: The Sessions Judge has power under Section 408 Cr.P.C. to transfer a case or appeal pending before an Additional Sessions Judge to another criminal court within the same sessions division.Issue (ii): Whether a litigant can, as of right, move the Sessions Judge under Section 409 Cr.P.C. for withdrawal or recall of cases made over to an Additional Sessions Judge.Analysis: Section 409(2) permits the Sessions Judge to withdraw or recall cases made over to an Additional Sessions Judge at any time before trial or hearing has commenced; the exercise is administrative in nature and may be initiated suo motu or on application by a party; reasons must be recorded under Section 412; once trial or hearing has commenced the administrative recall under Section 409(2) is barred, but prior to commencement a litigant may seek recall or withdrawal.Conclusion: An interested litigant is entitled to invoke Section 409 Cr.P.C. before the Sessions Judge for withdrawal or recall of cases or appeals made over to an Additional Sessions Judge provided the trial or hearing has not commenced.Issue (iii): Whether a litigant must first approach the Sessions Judge under Sections 408 or 409 Cr.P.C. before seeking transfer under Section 407 Cr.P.C. in the High Court.Analysis: The proviso to Section 407(2) bars an application to the High Court for transfer within the same sessions division unless an application for such transfer has been made to the Sessions Judge and rejected; Sections 408 and 409 provide the Sessions Judge with concurrent modes of relief and safeguards (reasons to be recorded and revisional remedy under Section 397), indicating the legislative intent that the Sessions Judge be the first forum for intra-division transfer requests.Conclusion: A litigant must first move the Sessions Judge under Sections 408 or 409 Cr.P.C. before an application under Section 407 Cr.P.C. to the High Court for transfer within the same sessions division is maintainable.Final Conclusion: The Sessions Judge in the sessions division possesses judicial power to transfer matters, and an aggrieved party seeking transfer or recall of matters pending before an Additional Sessions Judge must first approach the Sessions Judge; appropriate statutory safeguards and revisional remedies are available to review the Sessions Judge's exercise of such powers.Ratio Decidendi: Where the Code confers on the Sessions Judge power to transfer or to withdraw/recall matters made over to Additional Sessions Judges and requires reasons to be recorded, the Sessions Judge's power under Sections 408 and 409 Cr.P.C. extends to cases and appeals pending before Additional Sessions Judges and an aggrieved party must first seek relief before the Sessions Judge before invoking Section 407 Cr.P.C. in the High Court.