NETAR SINGH Vs. THE STATE

JUDGEMENT

(1.) THIS revision has been filed by Netar Singh and arises in the following circumstances:

(2.) IT is urged in this revision that the view taken by the Sessions Judge was erroneous; that a Sessions Judge has power to transfer a case from the court of an Addl. Sessions Judge to another competent court Under Section 528(1C) of the Code of Criminal Procedure. After hearing learned Counsel for the parties I am of the opinion that this is a correct submission. The Sessions Judge was not right in the view that Sub -section (1C) of Section 528 of the Code gives power to the Sessions Judge to transfer cases from the court of one Magistrate to another Magistrate and does not confer power on the Sessions Judge to transfer cases pending either before an Assistant Sessions Judge or an Addl. Sessions Judge. The Sessions Judge appears to have taken the view that Sub -section (1C) of Section 528 of the Code is subject to the provision contained in Sub -section (1) and (1A) of Section 528. To my mind the learned Sessions Judge completely misconstrued the provisions contained in Sub -sections (1), (1A) and (1C) of Section 528. Sub -section (1C) of Section 528 contains an entirely independent provision and there is nothing in its wording to imply that it is subject or subordinate to the foregoing sub -sections of Section 528. Indeed there is no over -lapping in the provisions contained in Sub -section (1), (1A), (1B) and (1C) of Section 528 at all. Section 528 gives to the Sessions Judge power of withdrawal or recall of any case or appeal from the court of Assistant Sessions Judge subordinate to him. This power of withdrawal and recall can be exercised by him at any stage whether the trial of the case or the hearing of the appeal has commenced or not. Sub -section (1A) gives power to the Sessions Judge to recall any case or appeal pending before the Addl. Sessions Judge subject only to one condition that the trial of the case or the hearing of the appeal has not commenced when the power of recall is exercised. Sub -section (1B) provides that when a Sessions Judge withdraws or recalls a case or appeal Under Sub -section (1) or Sub -section (1A) he may either try the case in his own court or hear the appeal himself or make it over, in accordance with the provisions of this Code, to another court for trial or bearing as the case may be. It will be noticed that Sub -section (1) gives to the Sessions Judge power to withdraw or recall a case or an appeal from the court of the Assistant Sessions Judge at any stage on his own motion and it does not contemplate the exercise of that power on the motion of a party through a transfer application. Same is the case with Sub -section (1A). It gives to the Sessions Judge power of recall of a case or an appeal pending before an Addl. Sessions Judge suo moto and the exercise of that power is not dependent on the filing of a transfer application. It is further evident that for the exercise of power of withdrawal and recall contained in Sub -sections (1) and (1A) of Section 528 the Sessions Judge is not bound to give reasons which is normally necessary while disposing of an application for transfer of a case or an appeal. Sub -section (1B) of Section 528 gives to the Sessions Judge power of transferring a case or an appeal withdrawn or recalled by him Under Sub -section (1) or Sub -section (1A) to another court for trial or hearing, as the case may be. Therefore Sub -section (1B) confers on the Sessions Judge a limited right of transfer with respect to cases and appeals from the court of the Assistant Sessions Judge or the Addl. Sessions Judge, the same being cases or appeal which were withdrawn or recalled by him. It will thus be noticed that Sub -sections (1), (1 -A) and (1 -B)of Section 528 do not contain a general provision relating to the transfer of a case or an appeal by the Sessions Judge from the court of the Assistant Sessions Judge or Addl. Sessions Judge on a transfer application. It was for this reason that Sub -section (1 -C) was added by Act 26 of 1955 and the Sessions Judge was by that amendment given power to transfer any particular case from one criminal court to another criminal court in the same sessions division on an application made in that behalf on the ground of expediency for the ends of justice. The rule of Interpretation of Statutes is that the wordings of the statute should be given their plain and literal meaning if they do not suffer from an ambiguity. The language of Sub -section (1 -C) is plain and unambiguous and must therefore be interpreted literally. The key to the interpretation of Sub -section (1 -C) of Section 528 lies in the meaning to be assigned to the words Criminal Court used there. According to the interpretation adopted by the learned Sessions Judge and the learned Counsel for the opposite party the words "from one criminal court to another criminal court" appearing in Sub -section (1C) should be interpreted to imply the courts of Magistrates and should not be extended to cover the courts of Assistant and Addl. Sessions Judges. There appears to be no warrant for this narrow interpretation of the phrase 'criminal court appearing in Sub -section (1 -C). The meaning of the words 'criminal court' must be found with reference to Section 6 of the Code. Section 6 provides that there shall be five classes of criminal courts viz. Courts of Sessions, Presidency Magistrates, Magistrates of the first class, Magistrates of the second class and Magistrates of the third class. It is therefore clear that the words 'criminal court' in Sub -section (1 -C) include the court of Sessions Judge, in other words the courts of Assistant Sessions Judge and Addl. Sessions Judge. It, therefore, follows that a Sessions Judge has power Under Sub -section (1 -C) to transfer cases from the court of an Assistant Sessions Judge as well as an Addl. Sessions Judge on an application made in that behalf if he finds it expedient to do so for the ends of justice. There is no conflict or disharmony upon this interpretation of Sub -section (1 -C) with Sub -sections (1) and (1 -A) and (1 -B) of Section 528 and this interpretation will not lead to any repugnancy because as already pointed out the power of transfer as contained in Sub -section (1C) not being subject to any other sub -section of Section 528 can be exercised in the case of Addl. Sessions Judge at any time whether the trial of the case has commenced or not. The power of withdrawal of a case or an appeal from the court of Addl. Sessions Judge Under Sub -section (1 -A) on the contrary can be exercised only before commencement of the trial or hearing. In so far as Sub -section (1) is concerned the power of withdrawal and recall of a case or an appeal pending before an Assistant Sessions Judge may be exercised suo moto without reference to considerations of expediency whereas Under Sub -section (1 -C) that power can be exercised only on an application and upon proof of its being expedient for the ends of justice.

(3.) THE main argument of the learned Counsel for the opposite party in support of the view that Sub -section (1C) does not contain any provision conferring power on the Sessions Judge to transfer a case pending before an Addl. Sessions Judge was that an Addl. Sessions Judge was not subordinate to the Sessions Judge and therefore no such power of transferring cases from his file could be conferred by the Legislature on the Sessions Judge. In support of this view he referred to the case of Daulat Ram Asthana v. Emperor : AIR 1931 All. 435. In that case an Addl. Sessions Judge purporting to act as a Sessions Judge had passed order of transfer of an appeal which was pending before an Addl. Sessions Judge. The order was challenged in revision before the High Court on the ground that the Sessions Judge had no jurisdiction to transfer a case or an appeal pending before an Addl. Sessions Judge. This contention was upheld and the revision was allowed. In the course of the judgment it was observed by Young, J. that the only power conferred by Sub -section (1) of Section 528, Code of Criminal Procedure which was conferred on the Sessions Judge was to transfer a case pending before the court of Assistant Sessions Judge subordinate to him and that the Code of Criminal Procedure did not contain any provision empowering the Sessions Judge to withdraw or recall any case from an Addl. Sessions Judge. In that connection the learned Judge pointed out that there is a distinction between an Assistant Sessions Judge and an Addl. Sessions Judge as in view of Section 17(3) of the Code an Assistant Sessions Judge is subordinate to the Sessions Judge whereas an Addl. Sessions Judge is not so. Learned Counsel for the opposite party Sri Jagat Bahadur Srivastava submitted, relying upon these observations, that because the Addl. Sessions Judge was not subordinate to the Sessions Judge the Sessions Judge could not possess the power of transferring a case from him. To my mind the interpretation of Sub -section (1C) of Section 528 does not rest nor the key to the interpretation of that sub -section lies in the answer to the question whether or not an Addl. Sessions Judge is subordinate to the Sessions Judge. The interpretation must proceed strictly on the language of the Statute and not on the consideration whether an Addl. Sessions Judge is or is not subordinate to the Sessions Judge as any such consideration will, to my mind, be wholly irrelevant for the purpose. In the case of Daulat Ram Asthana (supra) the learned Judge made the observations about subordination of the Assistant Sessions Judge to the Sessions Judge, to my mind, not with a view to interpret the provision contained in Section 528 of the Code but to point out that the Alld. Sessions Judge could not be equated with an Assistant Sessions Judge because the latter was declared to be subordinate to the Session Judge for the purpose of Section 17(3) of the Code and therefore the provision contained in Sub -section (1) of Section 528 which empowered the Sessions Judge to transfer a case from the court of the Assistant Sessions Judge could not be interpreted to extend to cases pending before an Addl. Sessions Judge. The case of Daulat Ram Asthana (supra) was decided when even Sub -section (1A) did not exist with the result that at the time of the decision of that case the Sessions Judge did not possess even the power of recall of a case or an appeal pending before an Addl. Sessions Judge. Sub -section (1A) was added by Act 3 of 1946 and Sub -section (1C) by Act 26 of 1955. Therefore the decision in the case of Daulat Ram Asthana (supra) can be no longer authority for the interpretation of powers of the Sessions Judge of recalling or transferring cases pending before an Addl. Sessions Judge Under Section 528, Code of Criminal Procedure.