VARJIWAN P SETH Vs. RATANLAL JAHOTIA

JUDGEMENT

(1.) This Criminal Miscellaneous Petition is filed to set aside the order of the Additional Sessions Judge, Hyderabad, dated 31/07/1962 and to retain C. C: No, 364 of 1962, with the Special Magistrate for Railways, Secunderabad.

(2.) The facts are short and simple and only to a limited extent are disputed. It appears that C. C. No. 364/62 was filed with the Chief City Magistrate which was in due course transferred to the IV City Criminal Court. Then it was subsequently transferred on administrative grounds to the Railway Magistrate. It was however revealed that the case involves certain documents which are in Hindi and the evidence to be recorded also would mostly be in Hindi. Respondent No. 7 filed a petition under Section 528 (1-c) Cr. P. C., hereinafter called the Code, in the Court of the Principal Sessions Judge, Secunderabad, seeking transfer of the abovesaid case from the file of the Court of the Magistrate for Railways to the IV or VIII City Magistrate, Hyderabad as they knew Hindi. The petition was made over by the Sessions Judge to the Additional Sessions Judge for disposal. The learned Additional Sessions Judge passed an order on 31/07/1962, transferring the case back to the IV City Magistrate. It is this order of the Additional Sessions Judge that is now challenged before me.

(3.) The question which must essentially be answered in this enquiry is whether the Sessions Judge was competent to make over a petition filed before him under Section 528 Criminal Procedure Code to the Additional Sessions Judge for disposal: in other words, whether a transfer petition under Section 528 is a proceeding falling within the moaning of case mentioned in Subsection (2) of Section 193 of the Code? In order to find out a correct answer to the abovesaid proposition it becomes immediately plain that I have to carefully go through some of the provisions of the Code. It is necessary to keep in view the scheme of the Code relating to the Court of Session. Under the scheme of the Code the general frame work of the administration of justice such as the division of the State into Sessions Divisions and their boundaries and places of sitting and the appointment of Sessions Judges, is left by Sections 7 to 9 to the State Government. According to Section 7 every State shall be a sessions division, or shall consist of sessions divisions: and every sessions division shall, for the purposes of the Code, be a district or consist of districts. Sub -section (2) enables the State Gov- ernments to alter divisions and districts. Subsection . (3) maintains existing divisions and districts till they are altered. I am not concerned with Sub-section (4). Section 8 empowers the State Government to divide districts into sub-divisions. It is Section 9 which is of materiality for my purpose. This Section deals with the power of the State Government to establish Courts of Session, to appoint Judges thereto and to direct at what place or places such Courts shall hold their sittings. The State Government under this Section is bound to establish a Court of Session for every sessions division in the State. It is thus clear that the words Court of Session wherever they occur in the Code means a Court established under this Section. Sub-section (3) of Section 9 empowers the State Government to also appoint Additional Sessions Judge and Assistant Sessions Judges to exercise jurisdiction in one or more such Courts, and Sub-section (4) enables the State Government to appoint a Sessions Judge of one sessions division to be also an Additional Sessions Judge of another division and appoint a place or places in either division for his sitting. Sub-section (5) is not relevant for this enquiry. Section 17 (3) provides that all Asst. Sessions Judges shall be subordinate to the Sessions Judge in whose Court they exercise jurisdiction, and the Sessions Judge may, from time to time, make rules consistent with the Code as to distribution of business among such Asst. Sessions Judges. Sub-section (4) of Section 17 provides for an emergency. Whenever the Sessions Judge is unavoidably absent or incapable of acting he may make provision for the disposal of any urgent application by an Additional or Assistant Sessions Judge, or if there be no Additional or Asst. Sessions Judge, by the District Magistrate, and such Judge or Magistrate shall have jurisdiction to deal with any such application. It is of interest to note that whereas this provision makes an Asst. Sessions Judge subordinate to Sessions Judge, there is no provision in the Code which makes Additional Sessions Judge subordinate to the Sessions Judge. Section 31 then provides for sentences which Sessions Judges may pass. Section 31 (2) states that a Sessions Judge or Additional Sessions Judge may pass any sentence authorised by law; but any sentence of death passed by any such Judge shall be subject to confirmation by the High Court. Sub-section (3) of Section 31 enacts that an Asst. Sessions Judge may pass any sentence authorised by law except a sentence of death or of imprisonment for life or of imprisonment for a term exceeding ten years.