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Andhra High Court · body

2006 DIGILAW 516 (AP)

Talari Giddappa v. State of A. P.

2006-04-12

P.S.NARAYANA

body2006
ORDER : 1. This Transfer Criminal Miscellaneous Petition is filed by the petitioners under Section 407 of the Criminal Procedure Code, 1973 (hereinafter referred to as ‘Code’ for the purpose of convenience) praying for the transfer of S.C. No. 407/2001 on the file of VI Additional Sessions Judge, Anantapur to the Court of the Additional Assistant Sessions Judge, Anantapur, and pass such other suitable orders. 2. It is stated that a charge-sheet was filed against the petitioners for offences punishable under Sections 143, 448, 354, 379 read with Section 149 I.P.C. and the case was committed to the Court of sessions and the same was numbered as S.C. No. 407/2001 on the file of Additional Assistant Sessions Judge, Anantapur, and the charges also were framed and thereafter on 6-1-2003 this case was transferred to the Court of VI Additional Sessions Judge (Fast Track Court), Anantapur for trial. 3. It is stated that except Section 354 I.P.C. all other offences are triable by the Magistrate of First Class. It is also stated that if the Additional Sessions Judge tries the case, the remedy to approach the Court of Session would be lost by the petitioners. Section 407 of the Code dealing with Power of High Court to transfer cases and appeals reads as hereunder:— (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 causes 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 application of a party interested, or on its own initiate: Provided that no application shall lie to the High Court for transferring a case from the 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. (3) 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. (4) When such application is made by an accused person, the High Court may direct him to execute a bond, with or without sureties, for the payment of any compensation which the High Court may award under sub-section (7): (5) Every accused person making such application shall give to the Public Prosecutor notice in writing of the application, together with a copy of the grounds on which it is made, and no order shall be made on the merits of the applications unless at least twenty-four hours have elapsed between the giving of such notice and the hearing of the application. (6) Where the application is for the transfer of a case or appeal from any Subordinate Court, the High Court may, if it is satisfied that it is necessary so to do in the interests of Justice, order that, pending the disposal of the application, the proceedings in the Subordinate Court shall be stayed, on such terms as the High Court may thing fit to impose: Provided that such stay shall not affect the Subordinate Court's power of remand under Section 309. (7) When an application for an order under sub-section (1) is dismissed, the High Court may, if it is of opinion that the application was frivolous or vexatious, order the applicant to pay by way of compensation to any person who has opposed the application such sum not exceeding one thousand rupees as it may consider proper in the circumstances of the case. (8) When the High Court orders under sub-section (1) that a case be transferred from any Court for trial before itself, it shall observe in such trial the same procedure which that Court would have observed if the case had of the been so transferred. (8) When the High Court orders under sub-section (1) that a case be transferred from any Court for trial before itself, it shall observe in such trial the same procedure which that Court would have observed if the case had of the been so transferred. (9) Nothing in this Section shall be deemed to affect any order of Government under Section 197. 4. Sub-section (2) referred, to supra specifies that 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 initiate and the proviso specifies that provided 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. Section 7 of the Code dealing with territorial divisions specifies as hereunder:— (1) Every State shall be a sessions division or shall consist of sessions divisions; and every sessions division shall, for the purpose of this Code, be a district or consist of districts; Provided that every metropolitan area shall, for the said purposes, be a separate sessions division and district. (2) The State Government may, after consultation with the High Court, alter the limits or the number of such divisions and districts. (3) the State Government may, after consultation with the High Court, divide any district into sub-divisions and may alter the limits or the number of such sub-divisions. (4) The session divisions, districts and sub-divisions existing in a State at the commencement of the Code, shall be deemed to have been formed under this Section. 5. Section 9 of the Code dealing with Court of Session reads as hereunder:— (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. (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. (4) The Sessions Judge of one sessions division may be appointed by the High Court to be also an Additional Sessions Judge of another division, and in such case he may sit for the disposal of cases at such place or places in the other division as the High Court may direct. (5) Where the office of the Sessions Judge is vacant, the High Court may make arrangements for the disposal of any urgent application which is, or may be, made or pending before such Court of Session by an Additional or Assistant Sessions Judge, by a Chief Judicial Magistrate, in the sessions division and every such Judge or Magistrate shall have jurisdiction to deal with any such application. (6) The court of Session shall ordinarily hold its sitting at such place or places as the High Court may, by notification, Specify, but if, in any particular case, the Court of Session is of opinion that it will tend to the general convenience of the parties and witnesses to hold its sittings at any other place in the sessions division, it may, with the consent of the prosecution and the accused, sit at that place for the disposal of the case or the examination of any witness or witnesses therein. Explanation:— For the purpose of this Code, “appointment” does not include the first appointment, posting or promotion of a person by the Government to any service, or post in connection with the affairs of the Union or of a State, where under any law, such appointment, posting or promotion is required to be made by Government. 6. Section 10 of the Code dealing with Subordination of Assistant Sessions Judges reads as hereunder:— (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 consistant with this Code, as to the distribution of business among such Assistant Sessions Judges. 6. Section 10 of the Code dealing with Subordination of Assistant Sessions Judges reads as hereunder:— (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 consistant with this Code, as to the distribution of business among such Assistant Sessions Judges. (3) The Sessions Judge may also make provisions for the disposal of any urgent application, in the event of his absence or inability to act, by an 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. 7. Section 194 of the Code dealing with Additional and Assistant Sessions Judges to try cases made over to him reads as hereunder:— “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 orders direct him to try.” 8. In the light of the aforesaid provisions in general and sub-section (2) proviso of Section 407 of the Code referred to supra in particular, the petitioners should have approached the learned Sessions Judge praying for transfer and straight away approaching this Court is impermissible. In view of the same, the Transfer Criminal Miscellaneous Petition is hereby dismissed.