1981 (7) TMI 251 - HC - Indian Laws

Transfer of trial venue under Section 407 CrPC permitted for witness convenience; transfer ordered to specified forum

Whether the High Court may transfer a sessions trial made over to an Additional Sessions Judge to another sessions forum under the CrPC was examined: the ... Power of High Court to transfer cases and appeals under Section 407 - proviso to Section 407(2) requiring prior application to the Sessions Judge - Power of Sessions Judge to transfer within his sessions division under Section 408 - Power of Sessions Judge to recall cases made over to an Additional Sessions Judge under Section 409(2) - general convenience of the parties or witnesses as a ground for transfer - suo motu power of the High Court to transferProviso to Section 407(2) requiring prior application to the Sessions Judge - Power of Sessions Judge to recall cases made over to an Additional Sessions Judge under Section 409(2) - Power of High Court to transfer cases and appeals under Section 407 - Whether the proviso to Section 407(2) bars an application to the High Court for transfer of a Sessions case made over to an Additional Sessions Judge. - HELD THAT: - An application for transfer lies in a court of superior jurisdiction only where the court to which the case is subordinate has power to transfer. An Additional Sessions Court and a Sessions Court are courts of equal jurisdiction; Section 408 (power of a Sessions Judge to transfer within his division) cannot be invoked to transfer a Sessions case from an Additional Sessions Court to a Sessions Court. Section 409(2) enables a Sessions Judge to recall a case made over to an Additional Sessions Judge, but where the Sessions Judge lacks power to transfer, the proviso to Section 407(2) (which requires the applicant first to move the Sessions Judge) does not apply. Consequently, the High Court may entertain an application under Section 407 to transfer a Sessions case made over to an Additional Sessions Judge without the prior moving of the Sessions Judge. [Paras 4]The proviso to Section 407(2) does not bar the High Court from entertaining the application to transfer a Sessions case made over to an Additional Sessions Judge; the High Court may exercise power under Section 407 in such a situation.General convenience of the parties or witnesses as a ground for transfer - Power of High Court to transfer cases and appeals under Section 407 - Whether, on merits, the Sessions Case should be transferred from the Additional Sessions Court, Mavelikkara to the Sessions Court, Alleppey. - HELD THAT: - The High Court assessed convenience and logistics: the prosecution has a large number of witnesses (many from outside the State), the trial is likely to be protracted, and Mavelikkara (not being a district headquarters) may lack adequate accommodation. The accused are not local to Mavelikkara. These considerations satisfy the criterion in Section 407(c) that transfer may be ordered if it will tend to the general convenience of parties or witnesses. The State's specific request was for transfer to the Sessions Court, Alleppey and the application was made by a party; where the power is invoked by application, the Court confined any transfer to the forum sought in the application. [Paras 4, 7]On its merits the application is allowed; Sessions Case No. 11 of 1981 pending before the Additional Sessions Court, Mavelikkara is transferred to the Sessions Court, Alleppey.Suo motu power of the High Court to transfer - Power of High Court to transfer cases and appeals under Section 407 - Whether the High Court may exercise suo motu power under Section 407 to transfer the case to a court other than that specified in the party's application. - HELD THAT: - Although the High Court has suo motu powers under Section 407 to transfer a case even to a court outside the local jurisdiction, where the power is invoked by an application of a party interested and that application requests transfer to a particular forum, the Court will not exercise suo motu power to transfer to a different forum. The transfer ordered must therefore be to the court specified in the application when the application, not the Court's suo motu jurisdiction, is the source of the power being exercised. [Paras 4]Suo motu power is not exercised to change the destination when the transfer is sought by an application specifying a particular Sessions Court.General convenience of the parties or witnesses as a ground for transfer - Ancillary directions to safeguard accused's right to defence and to ensure timely trial after transfer. - HELD THAT: - Concern was raised that transfer to Alleppey might put the accused to difficulty in being brought from Sub Jail to Court and might deprive them of local counsel due to expense. The Court directed that accused be transported to and from court in vehicles. It observed that counsel-at-state-cost is available where an accused cannot afford counsel; the Sessions Judge may consider appointing the same advocates at State cost if the accused wish to be defended by them. The Court further directed that the trial should commence within six weeks from the date of the order and required the Sessions Judge to report to the High Court if that is not possible. [Paras 5, 6]Police to transport accused by vehicle; Sessions Judge may arrange for counsel at State cost if required; trial to start within six weeks, with report if not feasible.Final Conclusion: Application allowed. The High Court, exercising power under Section 407, transferred Sessions Case No. 11 of 1981 from the Additional Sessions Court, Mavelikkara to the Sessions Court, Alleppey on grounds of general convenience; ancillary directions were issued regarding transport, provision of counsel at State cost, and commencement of trial within six weeks. Issues: Whether the High Court can order transfer of a Sessions case made over to an Additional Sessions Judge to the Sessions Court, Alleppey under Section 407 CrPC and whether such transfer should be ordered in the interests of general convenience of parties and witnesses.Analysis: Section 407 CrPC empowers the High Court to transfer cases where it appears that transfer will tend to the general convenience of parties or witnesses. An Additional Sessions Court and a Sessions Court are courts of equal jurisdiction; the Sessions Judge's power under Section 408 does not apply to transfer from an Additional Sessions Judge to a Sessions Court, while Section 409 permits a Sessions Judge to recall cases made over to an Additional Sessions Judge. The proviso to Section 407(2) requiring an application first to the Sessions Judge applies only where the Sessions Judge has power to transfer; it does not bar High Court intervention where the Sessions Judge lacks power. On the facts, a large number of prosecution witnesses are from outside the State and accommodation and practical convenience would be better met at the Sessions Court, Alleppey. The High Court's power under Section 407 was invoked by the State and therefore the transfer requested must be to the forum specified in the application.Conclusion: Transfer of Sessions Case No. 11 of 1981 from the Additional Sessions Court, Mavelikkara to the Sessions Court, Alleppey is ordered; the application for transfer is allowed in favour of the State.Ratio Decidendi: Where a Sessions Judge lacks power to transfer a case made over to an Additional Sessions Judge, the High Court may exercise its Section 407 CrPC power to transfer the case if such transfer tends to the general convenience of parties or witnesses, and the proviso to Section 407(2) does not bar such High Court transfer.