AVINASH CHANDER v. STATE OF DELHI — 1982 DIGILAW 358 (DEL)

M. L. Jain, J. ( 1 ) THE petitioner was facing a trial before Mr. T. S. Oberoi, Addl. Sessions Judge, Delhi. The learned Additional Sessions Judge framed charges and adjourned the case for recording of the prosecution evidence. Two more cases were pending against him in the court of Mr. R. C, Jain, Addl. Sessions Judge. The case which was pending before Mr Oberoi was transferred by the learned Sessions Judge by his order dated 4-1-1982 to the court of Mr. R. C. Jain. The petitioner made an application to the learned Sessions Judge that in the face of section 499 the case pending in the court of one Additional Sessions Judge could not be transferred to the court of another Addl. Sessions Judge because the trial had already begun. Relying upon my decision in Suresh Kumar v. State and others, 1981 Cri. L. J. 928, the learned Session Judge rejected the application on 16-11-1982 stating that the transfer was ordered under section 408 and not under section 409 Criminal Procedure Code. This order is under challenge in this petition. It is also requested that this court may direct retransfer under section 407 Criminal Procedure Code. In fact, this is a petition for reconsideration of the decision in Suresh Kumar (supra ). The learned counsel for the petitioner feels that the decision was made because certain authorities of other High Courts were not brought before me. In Suresh Kumar (Supra) I had said: "no authorities were cited at the bar in support of the rival contentions. But, I have been able to find. two, which appear to be the nearest relevant. In Reg. v. Gulabdas Kuberdas, (1874) 11 Bomb. H. R. C. 98, West J. did observe that in one sense, no doubt, the Sessions Judge, the Joint Judge and the Asst. Judge may be regarded as one court of Sessions but for purposes of section 473 of the 1861 Code (section 345 new), it is a separate court, Now, four aspects deserve to be noticed. One is that, an Addl. Sessions Judge may be treated as a separate court for some purposes, vide Reg. v. Gulabdas Kuberdas, (supra ). Judge may be regarded as one court of Sessions but for purposes of section 473 of the 1861 Code (section 345 new), it is a separate court, Now, four aspects deserve to be noticed. One is that, an Addl. Sessions Judge may be treated as a separate court for some purposes, vide Reg. v. Gulabdas Kuberdas, (supra ). The second is that the power to transfer a case has not been given to the court 357 of session but to the Sessions Judge who presides over the entire court of session manned by Assistant and/or Additional Sessions Judges. The third is, that section 407 (1) (ii) while dealing with the powers of the High Court to transfer a case speaks of transfer "from a criminal court subordinate to it. " But, section 408 in case of a Sessions Judge does not use these words. The fourth is, that sec- lions 408 and 409 Cr P. C. deal with two separate types of powers of the Sessions Judge to transfer, and to withdraw or recall cases respectively. The former is to be exercise in the interests of justice and the latter may inter alia cover a simple administration of business. Distinction between these two powers has to be spelt out. In Bhabutmal v. The State, 1970 Raj. L. W. 242, Beri J. (later on Chief Justice), while discussing the corresponding provisions in the old Code ponited out that the intention of the legislature seems to be, as gathered from the plain language of section 528 (1c) old Code (section 408 (1) new Code), that within a sessions divisions for the ends of justice, the Sessions Judge has the power to transfer a case from one criminal court to another regardless of the fact whether the court from which the case is sought to be transferred is subordinate to the Sessions Judge or not. Sub-sections (1a) and (1b) of section 528 (old Code section 409 (1) and (2) new Code), advisedly emply the word recall as distinguished from the word transfer . He held that a case which has been made over by must be a case which has been made over by the Sessions Judge to the Additional Sessions Judge and the trial must not have commenced therein. He held that a case which has been made over by must be a case which has been made over by the Sessions Judge to the Additional Sessions Judge and the trial must not have commenced therein. He further held that the Sessions Judge can transfar a case from one criminal court to another criminal court in the same sessions division and that the court of an Additional Sessions Judge is a criminal court and further that a Sessions Judge must be moved in the first instance if the case is sought to transferred one criminal court in the same sessions division. I am in respectful agreement with these views and I do not think that the addition of sub-section (2) to section 408 on the lines of section 407 (2) Criminal Procedure Code. makes any change in this position. "what I meant was that though the court of an Additional Sessions Judge is part of the court of session yet the court of Additional Sessions Judge may be treated as a separate court for some purposes such as section 345, and section 408. Same was the conclusion reached by the learned Judges of the High Court of Allahabad in State of U. P. v. Gyanchand. Cr. M. 747/71 and Cr. M. 3218/72, decided on 17-9-1974. After examining the provisions of section 528. Criminal Procedure Code. they said: "the expression criminal court in so far as section 526 and section 528 Criminal Procedure Code. are concerned, must be given wider meaning. The court exercising criminal jurisdiction for purposes of these two sections, the court of each additional Sessions Judge shall be a criminal court, though all of them shall be exercising jurisdiction in the same court of Sessions. " ( 2 ) YET, the learned Judges held that in view of sub-section (1a) of section 528, the Sessions Judge has no power to entertainan application for transfer even under sub-section (1c) thereof from the court of Additional Sessions Judge after the trial of the case or hearing of the appeal has commenced before him; also see State of U. P. v. Khurkhundi. 1971 A. L. J. 362, and Karam Chand v. State of U. P. 1980 (6) A. L. R. 625. 1971 A. L. J. 362, and Karam Chand v. State of U. P. 1980 (6) A. L. R. 625. In Smt. Gulzar v. Nizam a id another, 1981 A. W. C. 23, the trial of the case started in the Court of the IV Additional Sessions Judge Shri K. L. Sharma. Later on he was designated as II Additional Sessions Judge. One Shri Sarkar took over as IV Additional Sessions Judge and took up the case left by his predecessor and examined the witness of the defence. The Sessions Judge was requested to transfer the cases to the Court of Shri Sharma the II Addl. Sessions Judge. The leraned Sessions Judge rejected the application, while accepting a transfer petition made to it, the High Court held that the intention behind the Code seems to be that part heard cases should be tried by the Judge before whom the trial had commenced and who was seixed of the case. This case does not support the cantention raised by Shri Bawa because the Sessions Judge had made no order of transfer from the court of one Addl. Sessions Judge to another Additional Sessions Judge, and the reasoning adopted by the High Court is no more of any validity in view of the amendment of section 326 by virtue of which a part heard case may be tried by a successor Judge. ( 3 ) I have not been able to quite see how, having once said that the Court of Additional Sessions Judge is a criminal court, does it then cease to be so under section 408 Criminal Procedure Code. and limit the power of the Sessions Judge exercisable under that section ? It is not possible by any principle of interpretation to have read sub-section (1a) as a proviso or qualification to the powers available under sub-section (1c) of section 528. The new Code has split section 528 into section 408 (olds. 528 (1c,) and section 409 (old section 528 (1a ). That cannot be and is not without any significance. Section 408 is the general power to be exercised for the ends of justice while section 409 provides for a power more of an administrative nature given to the Sessions Judge to withdraw any case or appeal made over by him to the Additional Sessions Judge. That cannot be and is not without any significance. Section 408 is the general power to be exercised for the ends of justice while section 409 provides for a power more of an administrative nature given to the Sessions Judge to withdraw any case or appeal made over by him to the Additional Sessions Judge. It should also be noticed that section 409 speaks of cases and appeals while section 408 speaks of a case only. ( 4 ) IN Superintendent and Remembrancer of Legal Affairs, Government of W. B. v. Tulshi Mondal and others, (1975-76) 80 C. W. N. 54, A. K. De, J. almost gave no reason for the view he took. Talukdar J. who swung the balance observed that if the expensive interpretation is given to sub-section (1c) of section 528 (sec. 408 new), it would only attribute redundancy to the preceding sub-section (1a) of the same section 528 (sec, 409 new ). Each of these sub-sections dove-tails into the scheme of the provisions of section 528 (sections 408 and 409 new ). It was, therefore, held that a transfer of a case from the Additional Sessions Judge, to another Additional Sessions Judge made by the learned Sessions Judge, would come within the ambit of section 528 (1a) because the Additional Sessions Judge is to be equated with the Sessions Judge and does not form really a different court of session and is not a separate entity so as to constitute a different court having different powers, though a line does divide them which is not an imaginary one. Having conceded a real dividing line between the various courts of Additional Sessions Judges, it is not possible not to see that line in section 408. Since the splitting of section 528 into sections 408 and 409, it is no longer available to urge that the sub-section dovetail into the scheme of the same section. The Law Commission considered it desirable to split up section. 528 into live sections because it was as composite provision dealing with different classes of courts in two or three different matters, vide para 44. 14 of Law Commission Fourty first Report. ( 5 ) WITH utmost respect to the views of the High Courts of Allahabad and Calcutta, I do not find any reason whatsoever to make me change mine. Fortunately, I am not alone. 14 of Law Commission Fourty first Report. ( 5 ) WITH utmost respect to the views of the High Courts of Allahabad and Calcutta, I do not find any reason whatsoever to make me change mine. Fortunately, I am not alone. Bhattacharya J. in Tulsi Mondal (supra), had reached the same conclusion as I did after a detailed examination of the matter. He has noticed one more reason and that is that sub-section (1a) of section 526 and sub-section (1c) of section 528 were twins born of the Central Act No. 26 of 1955. In the absence of the one, the other cannot be of any effect. According to sub section (1a) of section 526, any application to the High Court for transfer of a case from one criminal court to another was not maintainable unless an application for such transfer has been made to the Sessions Judge and rejected by him. In order to invest the Sessions Judge with the requisite jurisdiction in consonance with the newly enacted sub-section (1a) of section 526, the legislature introduced sub-section (1c) of section 528cr. P. C. bythe same Act of 1955. The criminal court referred to in those two sub-sections, therefore, includes the court of Additional Sessions Judge. Each of the constituent courts presided over by the Sessions Judge, Additional Sessions Judge and Assistant Sessions Judge, forming the court of session is a criminal court, within the same sessions division. The power to transfer cases from one criminal court to the court in the same sessions division is a Special jurisdiction not given to the court of session but is given to the Sessions Judge only. The learned Judge also relied on Bhabutmal (supra) to which I had also done in my judgment. ( 6 ) AS regards, merits, there is nothing which can justify an interference with the order of the learned Sessions Judge. I, therefore, see no reason to revise my earlier opinion and uphold the order made by the learned Sessions Judge. ( 7 ) THE petition is rejected.