Judgment :- 1. These matters arise from the decision of the Additional Sessions Judge (Special), Palghat Sessions Division in Sessions Case Nos. 39 and 42 of 1978 of his Court (generally known by the name 'Kumbalam Naxa-, lite Case'). 2. 13 accused who are the respondents here were charge-sheeted by the Deputy Superintendent of Police, Crime Branch-I, C.I.D. Ernakulam for murder, dacoity, rioting and other allied offences. The accused other than the 11th accused were committed for trial to the Court of Session, Ernakulam in P.E.1 of 1975 of the Additional Judicial Magistrate, Second Class, Ernakulam. The case against them was registered as SC. 37 of 1976. The 11th accused was subsequently apprehended and he was committed for trial as per the order in P. E. 2 of 1976 by the same Magistrate. The case in the Court of Session, Ernakulam was registered as SC. 20 of 1977. Since the two cases arose out of a single incident, they were consolidated. The accused in SC. 20 of 1977 was ranked as the 11th accused in SC. 37/76. Evidence was recorded in SC. 37/76. As there were a large number of witnesses and the. trial was antici- pated to be a prolonged one, on the recommendation of the Inspector General of Police, the Special Court set up for the trial of the Kongad case was shifted to Ernakulam for the trial of the cases. The court was designated as the IIIrd Additional District and Sessions (Special) Judge, Ernakulam. Shri. A. Antony was appointed for the trial of the cases as the IIIrd Additional District and Sessions (Special) Judge. When there are more than one Additional Judge working at the same station and in the same Sessions Division, the practice is to rank them according to the seniority, the senior-most being ranked as the First Additional Sessions Judge. During the trial of the cases, officers junior to Shri. A. Antoy happened to be posted as Additional Sessions Judges at Ernakulam. This necessitated a change in the rank of the Special Court first as IInd Additional District and Sessions (Special) Judge and later on as the First Additional District and Sessions (Special) Judge. Shri. Antony continued the trial of S..C. Nos. 37/76 and 20/77. After 102 witnesses were examined, a situation arose in which it was felt undesirable in the interest of administration of justice that Sri. Shri. Antony continued the trial of S..C. Nos. 37/76 and 20/77. After 102 witnesses were examined, a situation arose in which it was felt undesirable in the interest of administration of justice that Sri. Antony should continue to work at Ernakulam. It was decided to transfer him from Ernakulam. Under the law (S.326 of the Code of Criminal Procedure prior to the amendment of 1978) as it stood then, there was no provision in the Code of Criminal Procedure for the successor of a judge to acton the evidence recorded by his predecessor. The High Court, therefore, felt that since the majority of the witnesses had been examined, in the interest of the accused, Sri. Antony should continue the trial of the cases. At the request of the High Court, the Special Court was shifted by Government to Palghat and was designated as the Additional District and Sessions Court (Special), Palghat. Sri. Antony was appointed as Additional District and Sessions (Special) Judge, Palghat to try the Kumbalam Naxalitecase. Orders were also issued by the High Court transferring the two cases to. Palghat under S.407 of the Code of Criminal Procedure. After Sri. Antony took charge, notices were issued to the accused and they put in appearance. When witness No. 103 was about to be examined, accused Nos. 3 and 4 raised objection, contending that the Special Judge had no jurisdiction to try the case as there was no proper order transferring the case to him for trial. This petition was disposed of by Sri. Antony on 7th October, 1978 stating that it would be considered at the final hearing stage. On 16th October, 1978, the Special Public Prosecutor made a motion requesting the Court to review the order dated 7th October, 1978 and to consider and dispose of the objection raised regarding jurisdiction before proceeding further with the trial. The learned Additional Sessions Judge declined to review his prior order, stating:that the motion was not maintainable before that Court and added that if the Special Public Prosecutor had doubts regarding the validity of the order of transfer, it was open to him to take the matter to the competent superior Court. 3. After evidence was closed and when the arguments were being heard, the counsel appearing for accused Nos. 5 and 9 again raised the question of jurisdiction. 3. After evidence was closed and when the arguments were being heard, the counsel appearing for accused Nos. 5 and 9 again raised the question of jurisdiction. It appears that in the meanwhile the Special Public Prosecutor wrote to the Registrar of this Court that an objection had been raised regarding the jurisdiction of the Additional Sessions Court, Palghat to try the case on the ground that the incident took place within the territorial limits of the Ernakulam Sessions Division and on the ground that it was the Registrar who issued the order of transfer. To the above letter, the Registrar replied that the cases were transferred to the Additional District and Sessions Court, Palghat (Special) as per orders passed by the High Court in exercise of the powers conferred by S.407 of the Code of Criminal Procedure. The Registrar also stated that the orders were not passed by him but that he was only communicating the orders by order of the High Court. The letters were marked as Exts. Al and A2. Ext. C7 is the copy of the proceedings of the High Court regarding the transfer of Sessions Case 37/76 to the Additional District and Sessions (Special) Court, Palghat. The learned Additional Sessions Judge after hearing on the obje¬tion held that his Court had no jurisdiction to decide the case and that all the accused were, therefore, entitled to acquittal. The 13 accused were accordingly acquitted. The appeal is preferred by the State against the order of acquittal. When the copy of the judgment was received in the High Court and the calendar was perused by Viswanatha Iyer J., he found the disposal of the case irregular and took up the matter in revision and issued notice to the accused. The appeal and the revision case were heard together. 4. Before the learned Special Judge, two contentions were raised. The first objection is based on the allegation that Ext. C7, the order dated 3-8-1978 transferring SC. 37 of 1976 of the Ernakulam Sessions Division to the Additional District and Sessions (Special) Court, Palghat is not a judicial order but was one passed on the administrative side by the Registrar of the High Court. The first objection is based on the allegation that Ext. C7, the order dated 3-8-1978 transferring SC. 37 of 1976 of the Ernakulam Sessions Division to the Additional District and Sessions (Special) Court, Palghat is not a judicial order but was one passed on the administrative side by the Registrar of the High Court. It is pointed out that under S.3 of the Kerala High Court Act, an order, transferring a criminal case from one Court to another is to be passed by a single judge of the High Court on the judicial side. Although Ext. C7 mentions that the order was passed by the High Court of Kerala in exercise of the powers conferred under S.407 of the Code, of Criminal Procedure, the order, was not passed By a single judge on the judicial side. The form of the order of transfer would show that it was passed on the administrative side and is, therefore, not a proper order. The order transferring S.C. 20 of 1977 was issued subsequently on 19-8-1978 on similar lines. These orders being passed by the High Court on the administrative side, do not conform to the provisions contained in S.407 of the Code of Criminal Procedure. A contention was also raised that before effecting a transfer, notice should have been given to the parties. The stand taken by the accused was that the transfer in the instant case did not conform to the above formalities and, therefore, the Additional Sessions Judge (Special), Palghat had no jurisdiction to try the cases. The learned Additional Sessions judge accepted the above contentions. The question is whether the order is correct. 5. S.407 of the Code of Criminal Procedure deals with power of the High Court to transfer cases and appeals Sub-s. (1) empowers the Court, among other things, to transfer a case when it is expedient for the ends of justice. Under sub-s. (2), the High Court may act, either on the report of the lower court or on the application of a party interested or on its own initiative. Sub-section (3) states that every application for an order under sub-section (1) shall be made by motion, which shall, except when the applicant is the Advocate General of the State, be supported by affidavit or affirmation. Under subsection (5), an accused making an application should give notice to the Public Prosecutor. Sub-section (3) states that every application for an order under sub-section (1) shall be made by motion, which shall, except when the applicant is the Advocate General of the State, be supported by affidavit or affirmation. Under subsection (5), an accused making an application should give notice to the Public Prosecutor. Prima facie, the stipulation regarding application and the provision regarding prior notice have no application when the transfer is effected on the report of the lower court or by the High Court on its own initiative. However, we do not propose to consider the question in detail since the appeal and the revision can be disposed of otherwise. 6. The next ground which found favour with the learned judge was that the order passed was not a judicial one. For coming to the above conclusion, the learned Sessions Judge made a comparison of the order of transfer with certain other orders passed by the High Court on the judicial side. According to the learned judge, the order in question did not stand comparison with the judicial orders referred to by him. The learned judge, however, omitted to notice that the Code of Criminal Procedure and the Criminal Rules of Practice do not prescribe any particular form to an order transferring a case from one court to another. This omission gains some significance in view of the fact that both the Code and the Rules of Practice prescribe forms in the case of other specified orders. To cite some instances, an order of attachment to compel the appearance of an accused is to be in Form No. 7 prescribed in the Code of Criminal Procedure. An order for removal of nuisance is to be in Form No. 20. The Criminal Rules of Practice (Travancore-Cochin) prescribes forms in respect of orders dealing with suspension of sentence; withdrawal of complaint etc. (see Forms 75 to 81). So far as transfer of cases is concerned, a form has been prescribed only for a notice on an application for transfer filed under S.528 of the Code of Criminal Procedure, 1898. The inference is that an order transferring a case need not be in any special form. (see Forms 75 to 81). So far as transfer of cases is concerned, a form has been prescribed only for a notice on an application for transfer filed under S.528 of the Code of Criminal Procedure, 1898. The inference is that an order transferring a case need not be in any special form. If that be so, it need only be examined whether the order passed was a judicial one in the sense that the decision was taken by a judge of this Court and whether it conforms to the provisions of law. 7. S.407, on the face of it, contemplates transfer of cases suo motu by the High Court. It follows that the High Court, if convinced that in the interest of justice, it is necessary to transfer a case from one Court to another, it is empowered to do so even in the absence of a motion by a party to the proceedings. In the instant case, the High Court found that for some reasons, the details of which need not be enumerated here, Sri. A. Antony should be transferred from Ernakulam. The decision, it is noticed, was taken by the Hon'ble the Chief Justice, the judge in-charge of the administration and the judge in-charge of the District concerned. The decision being administrative in character, it is not open to challenge here. On 20 7-1978, when the above decision was taken, the trial of the case had progressed to a considerable extent and as many as 102 witnesses had been examined. The transfer of the judge would have caused considerable hardship to the accused since the law as it stood then did not provide for continuation of the proceedings by the Sessions Judge and the successor judge would have been obliged to begin the trial afresh. It was under such circumstances that the same Hon'ble Judges decided to shift the Special Court to Palghat and to post Sri. Antony as the judge of that Court. It was also decided to transfer the case to the Palghat Court. Thus, the decision to transfer the case to Palghat Sessions Division was not taken by the Registrar. What the Registrar did was only to communicate the order to the concerned Courts. Antony as the judge of that Court. It was also decided to transfer the case to the Palghat Court. Thus, the decision to transfer the case to Palghat Sessions Division was not taken by the Registrar. What the Registrar did was only to communicate the order to the concerned Courts. The order of transfer being expedient for the ends of justice, in the sense that it was passed for avoiding a re-starting of trial and consequent hardship to the accused, conforms to the provisions of S.407 of the Code of Criminal Procedure. The fact that the decision was recorded on an administrative file need not necessarily mean that it was an administrative order. When an authority invested with power to act in different capacities does a thing, it should be presumed that it does so in the capacity it is competent to act. In other words, since the High Court is the judicial authority competent to transfer the case to Palghat under S.407 of the Code of Criminal Procedure, the inference should be that the decision to transfer the case was taken under the said provision. Even assuming that it is defective in form, the irregularity is not one which caused prejudice to the accused and did not vitiate the proceedings. It follows that the order transferring the case is not liable to be challenged on the ground that it does not conform to S.407 of the Code of Criminal Procedure. 8. Assuming that the order of transfer by this Court did not conform to the provisions of the Code, that could not have vitiated the subsequent trial of the case by Sri. A. Antony in his capacity as Additional Sessions Judge, Palghat, because as already mentioned, the Court that tried the case at Ernakulam was specially constituted by the Government for that purpose, at the request of the Inspector General of Police. It was this special Court which was transferred to Palghat to work as an additional Bench there. What happened was, following the decision to transfer Sri. Antony from Ernakulam, the High Court recommended the shifting of the Special Court to Palghat. The order shifting the Special Court to Palghat was passed by the Government in proceedings dated 1-8-78. It was this special Court which was transferred to Palghat to work as an additional Bench there. What happened was, following the decision to transfer Sri. Antony from Ernakulam, the High Court recommended the shifting of the Special Court to Palghat. The order shifting the Special Court to Palghat was passed by the Government in proceedings dated 1-8-78. The relevant portion of the order reads: "Sanction is accorded for the shifting of the Special Court for trial of Kumbalam Naxalite case from Ernakulam to Palghat, with its staff." It is thus clear that it was the Special Court for the trial of the Kumbalam Naxalite case that got shifted from Ernakulam to Palghat. S.185 of the Code of Criminal Procedure confers on the State Government the power to direct that any cases or class of cases committed for trial in any district be tried in any Sessions division, the only restriction being that such direction is not repugnant to any direction previously issued by the High Court or the Supreme Court. It was, therefore, within the powers of the State Government to shift the Special Court to Palghat and to direct that the Kumbalam Naxalite case be tried there. This means that Sri. A. Antony' who was appointed judge of the Special Court continued to have jurisdiction to try the case after his transfer to Palghat. Since it was the court which was constituted to try the Kumbalam Naxalite case that was shifted to Palghat a transfer of the case by the High Court under S.407 of the Code of Criminal Procedure was redundant. 9. A still another objection in relation to jurisdiction is dealt with in the order of the learned Additional Sessions Judge. The objection is as follows: When the trial began, Sri. Antony was the IIIrd Additional Sessions Judge, Ernakulam. Subsequently, Sri. A. Antony was posted as the IInd Additional Sessions judge and thereafter as the Ist Additional Sessions Judge, Ernakulam. But there was no formal transfer of the case from the IIIrd Additional Sessions Judge to the IInd Additional Sessions Judge and thereafter to the 1st Additional Sessions Judge. Therefore, the trial held at Ernakulam by Sri. A. Antony in his capacity as the IInd Additional Sessions Judge and Ist Additional Sessions Judge was without jurisdiction. Reference was made to S.194 of the Criminal Procedure Code. Therefore, the trial held at Ernakulam by Sri. A. Antony in his capacity as the IInd Additional Sessions Judge and Ist Additional Sessions Judge was without jurisdiction. Reference was made to S.194 of the Criminal Procedure Code. Under the said provision, an Additional Sessions Judge or an Assistant Sessions Judge is to try such cases as the Sessions Judge 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. The argument is that before the IInd Additional Sessions Judge and the 1st Additional Sessions Judge could get jurisdiction to try the case, there should have been a withdrawal of the case from the IIIrd Additional Sessions Judge or the IInd Additional Sessions Judge, as the case may be and a subsequent making over of the case to the IInd Additional Sessions Judge or the 1st Additional Sessions Judge. There has not been such a withdrawal and making over in the instant case. The contention has no force on the facts and circumstances of the case. The court that tried the Kumbalam Naxalite case was a special (Sessions) Court meant for the trial of that Case. In the order of the High Court dated 18 6 76 posting Sri. Antony to Ernakulam, there was specific mention that he was to try the Kumbalam Naxalite case. As already stated, the practice so far as Kerala is concerned is to rank the Additional Sessions Judges according to their seniority. Since the Additional Sessions Judges exercise jurisdiction over the whole Sessions Division, the ranking has nothing to do with the local jurisdiction of the Court which the judge presides over. Sri. Antony when he was appointed Special (Sessions) Judge to try the Kumbalam Naxalite case was the junior-most of the three Additional Sessions Judges. He was, therefore, ranked and designated as the IIIrd Additional District and Sessions Judge. During the course of the trial, there were some administrative changes and officers junior to Sri. Antony happened to be appointed as Additional Sessions Judges at the station. This necessitated a change in the rank of Sri. Antony first as IInd Additional Sessions Judge and thereafter as 1st Additional Sessions Judge. It is pertinent to note that Sri. Antony all along continued to be the Special (Sessions) Judge appointed to try the Kumbalam Naxalite case. Antony happened to be appointed as Additional Sessions Judges at the station. This necessitated a change in the rank of Sri. Antony first as IInd Additional Sessions Judge and thereafter as 1st Additional Sessions Judge. It is pertinent to note that Sri. Antony all along continued to be the Special (Sessions) Judge appointed to try the Kumbalam Naxalite case. There was no change in his local jurisdiction. 10. S.194 of the Code of Criminal Procedure, no doubt, says that an Additional Sessions Judge is to try such cases as are made over to him by the Sessions Judge. The section does not say that every time the rank of the Additional Judge is changed, there should be a fresh making over of the case by the Sessions Judge. On the contrary, the indications are to the contra. A case made over to an Additional Sessions judge can be made over to another only after the case is withdrawn from the former judge as provided in S.409 of the Code. S.409(2) however, restricts the scope of the power of withdrawal and confines it to a stage prior to the starting of the trial. This means that the Sessions Judge has no power to withdraw a case from an Additional Sessions Judge after the commencement of the trial by the latter. Again, the power to make over cases conferred on the Sessions Judge under S.194 of the Code is concurrent with the power of the High Court under the same section to issue special directions with regard to the cases to be tried by the Additional Sessions Judge. It follows that the Sessions Judge is not to issue an order making over a case when the High Court has already issued a special order concerning the matter. In the instant case, the direction in the order dated 18-6-1976 posting Sri. Antony as Additional District and Sessions (Special) Judge for the trial of the Kumbalam Naxalite case amounts to a special direction coming under S.194 and, therefore, no question of a further making over of the case by the Sessions Judge arises. 11. For the above reasons, the finding of the 1 earned Additional Sessions Judge, Palghat that he had no jurisdiction to try the case is unsustainable both under law and on the facts of the case. It is set aside. 11. For the above reasons, the finding of the 1 earned Additional Sessions Judge, Palghat that he had no jurisdiction to try the case is unsustainable both under law and on the facts of the case. It is set aside. The order acquitting the accused consequent on the above finding is also set aside. Since the acquittal was on a preliminary ground, the case has to be remanded for fresh disposal on the merits. The Special Court for the trial of the case has ceased to exist and Sri. Antony is not now functioning as a Special Judge for the trial of the case. Therefore, the case has to be disposed of by one of the courts now functioning. It is, therefore, remanded to the Court of Session, Ernakulam for disposal. Sri. S. Ananthasubramanian,1st Additional Sessions Judge, Ernakulam will dispose of the case according to law, as expeditiously as possible. The appeal filed by the State will stand allowed. No separate order is called for in the Criminal Revision case. It will stand disposed of as stated above. 12. Before concluding, we may mention that the procedure followed by Sri. A. Antony in the matter of disposal of the case was far from commendable. As a senior judicial officer, he should have known that when a question of jurisdiction is raised, it is incumbent that it should be disposed of at the earliest. In the instant case, the shifting of the Special Court to Palghat was ordered by the Government on 1-8-1978. The accused are seen to have raised the question of jurisdiction even when the first witness was put in the box in the Palghat Court. When his own authority to try the case was under challenge, it was incumbent on the judge to see that the objection was disposed of before proceeding with the trial. The learned judge could have either heard the parties and decided the objection himself or in case he felt that a decision by the High Court was necessary, resort could have been had to S.395 (2) of the Code of Criminal Procedure and the question of. law, if any, could have been referred to the High Court. It is quite ununder-standable why the decision on the question of jurisdiction was postponed till the final stage. The order of commitment was on 23-10-1976. The case had a chequered career. The trial was protracted. law, if any, could have been referred to the High Court. It is quite ununder-standable why the decision on the question of jurisdiction was postponed till the final stage. The order of commitment was on 23-10-1976. The case had a chequered career. The trial was protracted. Including court witnesses 110 persons were examined. Though the court was shifted to Palghat on 1-8-1978, the evidence was closed only on 20-12-1978. The calender attached to the judgment shows that arguments were heard from 21-12-1978 till 17-2-1979. The judgment was pronounced on 28-2-1979. The calender proceeds as follows: "Since I have to consider the voluminous evidence, peruse a large number of exhibits and to evaluate the points raised in the elaborate and thread bare arguments advanced by the prosecution and the defence, judgment could not be pronounced within the prescribed time of 7 days". The fact however, is that the learned judge did not enter any findings on the merits of the case, the disposal being based on his conclusions on the question of jurisdiction If as mentioned in the calender, the learned judge had considered the voluminous evidence, evaluated all the points raised and entered findings on the merits also, a remand to the. Court of. Session could have been avoided. We need only say that the failure on the part of the learned judge to decide the question of jurisdiction as soon as it was raised and the omission. on his part to enter findings after recording the evidence and hearing arguments on the merits have caused waste of public time and unnecessary inconvenience to the accused and all those concerned with the case. The gravity of the matter would be understood if one recalls the law prior to the Code of Criminal Procedure Amendment Act of 1978 which came into force on 18th of December, 1978. But for the amendment of S.326 by the above Act, a successor judge could not have acted on the evidence recorded by his predecessor and a remand might have even necessitated examination over again of all the 110 witnesses by the judge who is to try the case after remand. Suffice to say, that the learned Additional Sessions (Special) Judge should have acted with more circumspection and care.