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 subsection (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.
Both these sections are different in their scope. While Section 408 relates to transfer of a case from one Criminal Court to another Criminal Court within the same Sessions Division, Section 409 empowers the Sessions Judge subject to the limitation contained in Sub-section (2), to withdraw any case or appeal which he had made over to any Addl. Sessions Judge, Asstt. Sessions Judge or Chief Judicial Magistrate and either to try hear the case/appeal himself or make it over to another Court for trial/hearing. These two provisions are clearly intended to deal with two different situations. Section 409 obviously deals with a case or an appeal which though originally instituted in the Court of Sessions, has been made over by the Sessions Judge to an Addl. Sessions Judge or Asstt. Sessions Judge or Chief Judicial Magistrate and which in the opinion of the Sessions Judge is, for any reason administrative or judicial, required to be tried or heard either by himself or by some other Court. Transfer of all other cases from one Criminal Court to another Criminal Court in the same Sessions Division are to be regulated by Section 408. It needs to be clarified here that a Chief Judicial Magistrate has no power under the Code to try a case cognizable exclusively by the Sessions Court. He can hear only some appeals made over to him, by the Sessions Judge. Section 409, therefore, applies to him with respect to such appeals only.
The Additional Sessions Judge or Asstt. Sessions Judge does not constitute a separate Court but as provided by Section 9 of the Code, they exercise jurisdiction in the Sessions Court itself which is presided over by a Sessions Judge. They can only try such cases and hear such appeals as may be made over to them by general or a special order, by the Sessions Judge. So transfer of any such case or appeal from their file by the Sessions Judge can be made only Under Section 409. Sub-section (2) of Section 409 deals with the withdrawal of cases from an Additional Sessions Judge and places a restriction that any such withdrawal can be made only before the trial of the case or hearing of appeal has commenced. Under the scheme of things, Section 408 has no application when transfer of a case is required to be made by the Sessions Judge from one Additional or Asstt. Sessions Judge to another additional or Assistant Sessions Judge in the same Sessions Division.
In State of M.P. v. Raja, 1994 II MPWN 18, the Court while considering a transfer application made directly to this Court Under Section 407, Criminal Procedure Code, touched the point projected in this revision and observed :
“It seems that the Sessions Judge stood divested of the jurisdiction in view of Section 409, Criminal Procedure Code as the trial had commenced. It is pointed out that the proviso as reproduced hereunder, of Section 407(2) of Criminal Procedure Code provided no fetters in view of the position envisaged by Section 409, Criminal Procedure Code.”
In the aforesaid case, this Court was clearly of the view that in the matter of transfer of case from one Additional Sessions Judge to another Additional Sessions Judge in the same Sessions Division, the Sessions Judge has to resort to Section 409(2) and not to Section 408.
Whether a Sessions Judge has power under Section 408 of the Code of Criminal Procedure, 1973 to transfer a case after commencement of trial or a part heard appeal from the court of Additional Sessions Judge to another competent court within the sessions division is the crucial and main question that arises for consideration in this case.
In order to understand the scheme of functioning of the criminal courts, we shall refer to the relevant provisions under the Code. Section 9 of the Code provides for the establishment of a Court of Session. Section 9 to the extent relevant reads as follows:–
“9. Court of Session.–
(1) The State Government shall establish a Court of Session for every sessions division.
(2) Every Court of Session shall be presided over by a Judge, to be appointed by the High Court.
(3) The High Court may also appoint Additional Sessions Judges and Assistant Sessions Judges to exercise jurisdiction in a Court of Session.”
It is fairly clear that there shall only be one Court of Session for every sessions division and naturally there has to be a Sessions Judge to preside over the court. To the extent required there may also be Additional Sessions Judges and Assistant Sessions Judges to exercise jurisdiction in a Court of 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 Sessions 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 Assistant Sessions Judges to try cases made over to them.– An Additional Sessions Judge or Assistant Sessions Judge shall try such cases as the Sessions Judge of the division may, by general or special order, make over to him for trial or as the High Court may, by special order, direct him to try.”
“400. Power of Additional Sessions Judge.–
An Additional Sessions Judge shall have and may exercise all the powers of a Sessions Judge under this Chapter in respect of any case which may be transferred to him by or under any general or special order of the Sessions Judge.”
Section 412 stipulates that reasons are to be recorded while exercising the powers 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.”
Section 408 provides that the power of transfer of a criminal case from one criminal court to another criminal court in the sessions division is to be exercised only if it is expedient for the ends of justice. It does not require an elaborate discussion to hold that it is a judicial exercise of power. The power under Section 408 can be exercised in three modes; (1) on the application of an interested party, (2) suo motu, (3) on the report of the lower court. There is no quarrel for the proposition that the Sessions Judge is empowered to transfer any case or appeal at any stage pending before the Assistant Sessions Court. But should that power be limited to transfer of cases in the inferior criminal courts only ? ‘Inferior criminal court’ is an expression used only under Section 397 while dealing with the powers of revision. It is pertinent to note that the expression “subordinate” is conspicuously absent under Section 408.
Thus, though the Court of Additional Sessions Judge is not inferior and though the Additional Sessions Judge is not subordinate to the Sessions Judge, as far as administration of criminal justice in the sessions division is concerned, there is an administrative subordination in the sense that the Additional Sessions Judge gets jurisdiction only in respect of the cases made over to him and such cases are liable to be withdrawn also before commencement of the trial or hearing. It appears that the legislature had advisedly used the expression ‘lower’ and not ‘subordinate or inferior’ to ensure that the power under Section 408 can extend to issue of directions for transfer of a case pending before the Additional Sessions Court.
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 notice, the High Court or the District Court may at any stage–
(a) transfer any suit, appeal or other proceeding pending before it for trial or disposal to any Court subordinate to it and competent to try or dispose of the same, or
(b) withdraw any suit, appeal or other proceeding pending in any Court subordinate to it, and
(i) try or dispose of the same; or
(ii) transfer the same for trial or disposal to any court subordinate to it and competent to try or dispose of the same; or
(iii) retransfer the same for trial or disposal to the Court from which it was withdrawn.
(2) Where any suit or proceeding has been transferred or withdrawn under Sub-section (1), the Court which [is thereafter to try or dispose of such suit or proceeding] may, subject to any special directions in the case of an order of transfer, either retry it or proceed from the point at which it was transferred or withdrawn.
(3) For the purposes of this section.–
(a) Courts of Additional and Assistant Judges shall be deemed to be subordinate to the District Court;
(b) “proceeding” includes a proceeding for the execution of a decree or order.
(4) The Court trying any suit transferred or withdrawn under this section from a Court of Small Causes shall, for the purposes of such suit, be deemed to be a Court of Small Causes.
(5) A suit or proceeding may be transferred under this section from a Court which has no jurisdiction to try it.”
The Presiding Officer of a District Court is the District Judge. The District Judge on the civil side is empowered to transfer any case at any stage from one Additional District Court. If so why should there be a restricted meaning for transfer on the criminal side for the only reason that a provision akin to Section 24(3) regarding subordination is not expressly provided under the Code of Criminal Procedure? Should not that enabling provision be read into under Section 408 since Section 408 appears under Chapter XXXI of the Code dealing with the transfer of criminal cases and since Section 408 itself is captioned as power of Sessions Judge to transfer cases and appeals from one criminal court to another criminal court and in view of the bar under the proviso to Section 407(2) of the Code? It has also to be noted that the power under Section 408 is to be exercised only if it is expedient for the ends of justice and not for any other reason.
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.
“The power conferred on the Sessions Judge under Section 408(1) Criminal Procedure Code to transfer a case or an appeal pending in the Court of an Additional Sessions Judge to another Additional Sessions Judge in his sessions division whether its hearing has commenced or not, is thus an independent judicial power which is not subject to the bar imposed by Section 409(2) Criminal Procedure Code on the administrative power of the Sessions Judge of recalling a case or an appeal from an Additional Sessions Judge after the trial of the case or hearing of the appeal has commenced.”