TaxTMI 
TaxTMI 
TaxTMI 
2005 (10) TMI 622
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....h Court under Section 407 for the transfer. The matter has been placed before us pursuant to reference made by V. Ramkumar, J. Though several questions are posed in the order, answer to the three points referred to above would cover all the issues. The reference was necessitated since according to the learned Judge, the decision in State of Kerala v. Reny George and others (1981 KLT 557) required reconsideration. It was held in the said decision that an application for transfer of a case can be entertained only in a court of superior jurisdiction. The Court of Sessions Judge not being a court of superior jurisdiction qua that of an Additional Sessions Judge, Narendran, J. in the said decision took the view that invocation of Section 408 of the Code is not possible, the only resort being Section 407 before the High Court. But proviso under Section 407(2) stipulates that .........no application shall lie to the High Court for transferring a case from one Criminal Court to another Criminal Court in the same Sessions Division, unless an application for such transfer has been made to the Sessions Judge and rejected by him. In Reny George's case (supra) the view taken is ....
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....Session. Section 10 deals with subordination of Assistant Sessions Judges, which reads as follows: 10. Subordination of Assistant Sessions Judges.-(1) All Assistant Sessions Judges shall be subordinate to the Sessions Judge in whose Court they exercise jurisdiction. (2) The Sessions Judge may, from time to time, make rules consistent with this Code, as to the distribution of business among such Assistant Sessions Judges. (3) The Sessions Judge may also make provision for the disposal of any urgent application, in the event of his absence or inability to act, by an Additional or Assistant Judge, or, if there be no Additional or Assistant Sessions Judge, by the Chief Judicial Magistrate, and every such Judge or Magistrate shall be deemed to have jurisdiction to deal with any such application. The position is clear that only the Assistant Sessions Judges are subordinate to the Sessions Judge of the division and not the Additional Sessions Judges. Section 194 deals with the procedure regarding making over of the cases to the Additional and Assistant Sessions Judges in the sessions division. The said section reads as follows: 194. Additional and As....
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....07. Power of High Court to transfer cases and appeals.-(1) Whenever it is made to appear to the High Court-- (a) that a fair and impartial inquiry or trial cannot be had in any Criminal Court subordinate thereto, or (b) that some question of law of unusual difficulty is likely to arise; or (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) that any offence be inquired into or tried by any Court not qualified under Sections 177 to 185 (both inclusive), but in other respects competent to inquire into or try such offence; (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; (iii) that any particular case be committed for trial to a Court of Session; or (iv) that any particular case or appeal be transferred to and tried before itself. (2) The High Court may act either on the report of the lower Court, or on the ....
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....owers under Sections 408,409,410 or 411. The said section reads as follows: 412. Reasons to be recorded.--A Sessions Judge or Magistrate making an order under Section 408. Section 409 or Section 411 shall record his reasons for making it, 5. The provisions quoted above would clearly give a picture as to the making over, recalling and transferring of cases within a sessions division. It is clear from Section 194 that an Additional Sessions Judge is to handle only those cases which are made over to him by the Sessions Judge of the division. It needs no elaborate discussion to note that the expression 'case' used in this context is meant to include appeals, as can be seen from Section 400 also. Under Section 409, the Sessions Judge who made over the cases to the Additional Sessions Judge is empowered to withdraw any case or appeal before the trial of the case or the hearing of the appeal has commenced. Being the Sessions Judge, he has to take over the administration of criminal justice in his sessions division and hence in the exigencies of such administration, he has to make over, withdraw or recall cases and appeals and make over the same appropriately for the pr....
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....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? 7. Section 408 is captioned as Power of Sessions Judge to transfer cases and appeals. It is not a power on the Court of Session. It is a power conferred on the Sessions Judge presiding over the Court of ....
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....dy been made before the Sessions Judge and rejected by him. That power conferred on the Sessions Judge is meant in the interests of the litigant public as also for lessening the burden of the High Court, lest for every transfer of a criminal case or appeal in a sessions division, the litigant public will have always to approach the High Court. Since the power under Section 408 is judicially exercised and since reasons are to be recorded as provided under Section 412, any party aggrieved can always take recourse to the revisional remedy under Section 397. So much so, the conferment of the power of the Sessions Judge to transfer a criminal case at any stage from the Court of one Additional Sessions Judge will not cause any irreparable injury to a party to the litigation. 8. It will also be profitable to draw an analogy regarding the exercise of power by the District Court under Section 24 of the Code of Civil Procedure, 1908. The said section reads as follows: 24. General power of transfer and withdrawal. - (1) On the application of any of the parties and after notice to the parties and after hearing such of them as desired to be heard, or of its own motion without such n....
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....f it is expedient for the ends of justice and not for any other reason. 9. A Full Bench of the Allahabad High Court had occasion to consider the same issue and the decision is reported in Radhey Shyam and another v. State of U.P.(All.) (1984 (2) Cri 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 appl....