MOHD SHAMI KHAN Vs. NARESH DIXIT

JUDGEMENT

(1.) This transfer application has been filed by Shami Khan and Riyaz Ahmad seeking transfer of Case No. 146/115 pending in the Court of Shri Ganesh Prasad Srivastava, Sub Divisional Magistrate, Lakhimpur Kheri to some other competent Court.

(2.) The applicants had filed Transfer Application No. 186/94 before the learned Sessions Judge for the same relief but the learned Sessions Judge, Kheri dismissed the application observing that in view of the law laid down in the case of State of Gujarat v. Rati Lal Uttam Chand Morabia according to which a transfer application could be made only to the District Magistrate and no transfer application was maintainable before the Court of Sessions Judge. The learned Sessions Judge did not enter into the merits of the transfer application.

(3.) Chapter XXXI of the Code of Criminal Procedure (for short the Code) contains the provisions regarding transfer of criminal cases. Section 406 deals with the powers of the Supreme Court to transfer cases and appeals; Section 407 of the Code deals with High Courts power to transfer cases and appeals; Section 408 deals with the powers of Sessions Judge to transfer cases and appeals. Section 408(1) states: p408(1) Whenever it is made to appear to a Sessions Judge that an order under this subsection 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. Sections 409, 410 and 411 deal with withdrawal and making over of cases. Section 409 deals with powers of Sessions Judge to withdraw cases and appeals and Section 411 deals with powers of District Magistrate and Sub-Divisional Magistrate to withdraw and make over cases in given circumstances. It is clear from the provisions of Chapter XXXI that the Legislature has taken care and has drawn a distinction between power to transfer and with drawal of cases. There may be cases where power to transfer a case or to withdraw a case may be exercised in similar circumstances. The distinction between the two powers is thin, but it is there. The Legislature has taken care to vest the Sessions Judge with power to transfer criminal cases from one Criminal Court within his Sessions Division to another Court, as is clear from Section 408(1) of the Code.