Sec 408 of CrPC-Power of Sessions Judge to transfer cases and appeals

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.”

Notes

It is evident that in view of Section 408 CrPC a Sessions Judge, in his administrative and supervisory capacity is empowered to transfer any particular case from one Criminal Court to another Criminal Court in his sessions division whenever it is made to appear to him that it is expedient to do so in the interest of justice. This section does not indicate that the power of a Sessions Judge to transfer cases from one Criminal Court to another Criminal Court is restricted only to cases under the General Act and the cases under the Special Act are excluded from the exercise of such power under Section 408 CrPC. There is also no legal embargo indicated in Section 408 CrPC on the power of a Sessions Judge to transfer a case even after the commencement of trial. Sub-section (2) of Section 408 CrPC provides that the Sessions Judge may exercise such a power either on the report of the lower Court, or on the application of a party interested or on his own initiative. In the case in hand, the Sessions Judge acted on the basis of an application filed by prosecution. At this juncture, it may be profitable to refer to sub-section (3) of Section 9 CrPC which provides that the High Court may also appoint Additional Sessions Judges and Assistant Sessions Judges to exercise jurisdiction in a Court of Session. The expression indicates that an Additional Sessions Judge is appointed to exercise jurisdiction in a Court of Session. A Court of Additional Sessions Judge is not established separately whereas sub-section (1) of Section 9 CrPC provides that the State Government shall establish a Court of Session for every sessions division. Sub-section (2) provides that every Court of Session shall be presided over by a Judge, to be appointed by the High Court. Though the Sessions Judge and the Additional Sessions Judge exercise jurisdiction in the same sessions division, a Sessions Judge presides over the Court of Session and to share the workload in the said Court, Additional Sessions Judges are appointed. Now the question is whether an Additional Sessions Judge exercises all the powers of a Sessions Judge presiding over a Court of Session. Under Section 193 CrPC it is only a Court of Session which can take cognizance of an offence exclusively triable by a Court of Session on the case being committed to the said Court by a Magistrate under the Code. Thus the Court of Session is a Court of original jurisdiction to take cognizance of any offence when the case is committed to it and the Judge presiding over the Court of Session is the Sessions Judge of that sessions division. On the other hand, as provided in Section 194 CrPC an Additional Sessions Judge can only try such cases as the Sessions Judge of the division may, by general or special order, make over to him for trial. Similarly, under Section 408 CrPC the power to transfer a case from one Criminal Court to another in a sessions division is vested only with the Sessions Judge and not with the Additional Sessions Judge. Now coming to Section 28 of POCSO Act, it provides that the State Government shall in consultation with the Chief Justice of the High Court, designate for each district, a Court of Session to be a Special Court to try the offences under the Act. The expression used in Section 28 is not a Sessions Judge or an Additional Sessions Judge. It is a Court of Session. In view of Section 9(1) CrPC a Court of Session is established and a Sessions Judge presides over the said Court whereas an Additional Sessions Judge exercises jurisdiction in a Court of Session.

In this context, we may profitably refer to a passage from a three-Judge Bench decision in Gurcharan Dass Chadha v. State of Rajasthan[ AIR 1966 SC 1418], wherein it has been held:- “… The law with regard to transfer of cases is well-settled. A case is transferred if there is a reasonable apprehension on the part of a party to a case that justice will not be done. A petitioner is not required to demonstrate that justice will inevitably fail. He is entitled to a transfer if he shows circumstances from which it can be inferred that he entertains an apprehension and that it is reasonable in the circumstances alleged. It is one of the principles of the administration of justice that justice should not only be done but it should be seen to be done. However, a mere allegation that there is apprehension that justice will not be done in a given case does not suffice. The Court has further to see whether the apprehension is reasonable or not. To judge of the reasonableness of the apprehension the state of the mind of the person who entertains the apprehension is no doubt relevant but that is not all. The apprehension must not only be entertained but must appear to the Court to be a reasonable apprehension.”

In Captain Amarinder Singh v. Parkash Singh Badal and others [(2009) 6 SCC 260], while dealing with an application for transfer petition preferred under Section 406 CrPC, a three-Judge Bench has opined that for transfer of a criminal case, there must be a reasonable apprehension on the part of the party to a case that justice will not be done. It has also been observed therein that mere an allegation that there is an apprehension that justice will not be done in a given case alone does not suffice. It is also required on the part of the Court to see whether the apprehension alleged is reasonable or not, for the apprehension must not only be entertained but must appear to the Court to be a reasonable apprehension.

In the said context, the Court has held thus:-

“19. Assurance of a fair trial is the first imperative of the dispensation of justice. The purpose of the criminal trial is to dispense fair and impartial justice uninfluenced by extraneous considerations. When it is shown that the public confidence in the fairness of a trial would be seriously undermined, the aggrieved party can seek the transfer of a case within the State under Section 407 and anywhere in the country under Section 406 CrPC.

 In Abdul Nazar Madani v. State of T.N.[(2000) 6 SCC 204] has ruled that:- “…The apprehension of not getting a fair and impartial inquiry or trial is required to be reasonable and not imaginary, based upon conjectures and surmises. If it appears that the dispensation of criminal justice is not possible impartially and objectively and without any bias, before any court or even at any place, the appropriate court may transfer the case to another court where it feels that holding of fair and proper trial is conducive. No universal or hard-and-fast rules can be prescribed for deciding a transfer petition which has always to be decided on the basis of the facts of each case. Convenience of the parties including the witnesses to be produced at the trial is also a relevant consideration for deciding the transfer petition. The convenience of the parties does not necessarily mean the convenience of the petitioners alone who approached the court on misconceived notions of apprehension. Convenience for the purposes of transfer means the convenience of the prosecution, other accused, the witnesses and the larger interest of the society.”

In Lalu Prasad alias Lalu Prasad Yadav v. State of Jharkhand [(2013) 8 SCC 593], the Court, repelling the submission that because some of the distantly related members were in the midst of the Chief Minister, opined that from the said fact it cannot be presumed that the Presiding Judge would conclude against the appellant. From the said decision, we think it appropriate to reproduce the following passage:-

“Independence of judiciary is the basic feature of the Constitution. It demands that a Judge who presides over the trial, the Public Prosecutor who presents the case on behalf of the State and the lawyer vis-à-vis amicus curiae who represents the accused must work together in harmony in the public interest of justice uninfluenced by the personality of the accused or those managing the affairs of the State. They must ensure that their working does not lead to creation of conflict between justice and jurisprudence. A person whether he is a judicial officer or a Public Prosecutor or a lawyer defending the accused should always uphold the dignity of their high office with a full sense of responsibility and see that its value in no circumstance gets devalued. The public interest demands that the trial should be conducted in a fair manner and the administration of justice would be fair and independent.”