RADHEY SHYAM Vs. STATE OF U P

JUDGEMENT

(1.) The applicants filed an application in this court under Section 407 Criminal Procedure Code for transfer of Sessions Trial No. 210 of 1981 State v Balgovind and others from theT court of 5th Additional Sessions Judge, Allahabad to some other competent court within the same Sessions Divisions. When the aforesaid application was heard by a single Judge a preliminary objection was taken that the application was not maintainable in view of the proviso to sub-section (2) of Section 407 Criminal Procedure Code. The learned counsel for the applicants, however, contended that as the Sessions Trial was part-heard the proviso to sub-section (2) of Section 407 Criminal Procedure Code was inapplicable as the Sessions Judge had no jurisdiction to transfer a part heard Sessions trial under Section 408 Criminal Procedure Code. In support of his contention, the learned counsel for the applicants reiled on the Division Bench decision of this Court in State v.1.Gyan Chand in which it was held:1. Sub-section (I C) of Section 528 Criminal Procedure Code does not confer power on the Sessions Judge to transfer a sessions trial from the file of one Additional Sessions Judge to another Additional Sessions Judge or Assistant Sessions Judge in the same sessions division once the trial has commenced before the Additional Sessions Judge. However, if the case is pending before the Assistant Sessions Judge the Sessions Judge has the power to entertain an application for the transfer of the Sessions trial and to transfer it to another Additional or Assistant Sessions Judge, even though the trial has already commenced.

(2.) Where trial has already commenced before the Additional Sessions Judge it is not necessary for the party to comply with the provisions of section 526 (1A), Criminal Procedure Code he can move the High Court direct for the transfer of the part heard sessions trial to the file of another Sessions Judge, but if such trial is pending before the Assistant Sessions Judge it is necessary for the party to comply with the provisions of subsection (1A) of section 526, Criminal Procedure Code.It is not open to the Sessions Judge to entertain an application under section 528, Criminal Procedure Code for the transfer of the case from the file of the Additional Sessions Judge in cases the trial has commenced before1 the said Additional Sessions Judge but if the trial has been commenced before the Assistant Sessions Judge the Sessions Judge can and must entertain the application under section 528, Criminal Procedure Code for the transfer of the case to another Additional Sessions Judge or Assistant Sessions Judge in the same Sessions division The learned Single Judge was not in agreement with the decision of this court in State v. Gyan Chand (supra). He accordingly referred the under mentioned question to a Full Bench for decision:Whether a Sessions Judge has no power under Section 408 of the new Code of Criminal Procedure to transfer a part heard case or appeal from the court of an Additional Sessions Judge to some other competent court within his sessions division and the limitations imposed under section 409 sub-clause (2) of the new Code are applicable in exercise of the power of transfer conferred under Section 408 of the new Code? We are required to answer this question. 2. Section 407 (1), Criminal Procedure Code confers power on the High Court to transfer a case or appeal from one subordinate Criminal Court to any other such Criminal Court of equal or superior jurisdiction if it appears that it is expedient for the ends of justice. Under Section 407(2), Criminal Procedure Code the High Court may exercise this power either on the report of the lower court, or on the application of a party interested, or on its own initiative. An application by a party interested to the High Court for transferring a case from one Criminal Court to another Criminal Court in the same sessions division is barred by the proviso to sub-sections (2) of Section 407, Criminal Procedure Code, unless an application for such transfer has been made to the Sessions Judge and rejected by him.

(3.) It is mentioned in Section 9 Criminal Procedure Code that the State Government shall establish a court of Session in every sessions division. Every Court of Session shall be presided by a Judge, to be appointed by the High Court and High Court may also appoint Additional Sessions Judges and Assistant Sessions Judges to exercise jurisdiction in a Court of Session.