DILLIP KUMAR ROUTRAY Vs. STATE

JUDGEMENT

(1.) Petitioners call in question legality of order dated 21 -6 -1994 passed by learned sessions Judge, Cuttack in Criminal Misc. Case No, 707 of 1994 in purported exercise of power Under Section 409 of the Code of Criminal Procedure, 1973 (in short, the 'Code').

(2.) ACCORDING to the petitioners, they were impleaded as opposite parties in the application filed by Tushar Kanra Routray (opp. party No. 2 herein) before learned Sessions Judge seeking transfer of Sessions Trial No. 200 of 1994 pending disposal in the Court of Add). Sessions Judge -, Kendrapara. No notice was issued to them, and solely on the concession of the learned Public Prosecutor, prayer of Tushar Kanta was accepted. Transfer of the aforesaid Case from the Court of Addl. Sessions Judge, Kendrapara to the file of Sessions Judge, Cuttack has been directed. Such a course, according to the petitioners, is illegal because no opportunity was granted to them, who are arraigned as accused and have vital interest in the matter. It is further urged that Section 412 of the Code mandates recording of reasons when action is taken Under Section 409, but no reason has been recorded in the case, and merely on the concession of the Public Prosecutor and submission of the learned counsel appearing for Tushar. who was petitioner in the appli - cation, transfer has been directed. Learned counsel for Tushar on the other hand submitted that the learned Sessions Judge has taken note of all relevant circumstances which were elaborately dealt with in the application filed for transfer, and when the State which is the prosecuting agency has no objection, inconvenience if any of the accused is of no relevance.

(3.) IN Sections 409 and 410 word transfer is not used, and, on the other hand the words 'withdraw or recall' have been used. A Sessions Court consists of the Sessions Judge, Addl Sessions Judge and Asst. Sessions Judge. Therefore, when it is contemplated Under Section 403(1) that the Sessions Judge can transfer a case from one Criminal Court to another Criminal Court in a sessions division, it would mean that me Sessions Judge would be referring to a case filed not in the Sessions Court but pending before the Magistrate. Otherwise, if the Sessions Court comprise of the same three authorities, then it cannot transfer in that sense, a case from . that file to another Sessions Court. In other words, when the section contemplates a case pending in the Criminal Court, it would embrace all the cases pending on the file of such Courts subordinate to the Sessions Court. The words 'withdraw or recall' used in Sec 409 are used to mean that a Sessions Judge can withdraw or recall any case or appeal made over by him to the Addl. Sessions Judge or the Assistant. Sessions Judge. The use of the term 'withdrawal' or 'recall' is done whenever a regional distribution is made by the Sessions Judge. Thus. it is because the Sessions Judge makes over sessions cases and appeals to the Addl or Asst, Sessions Judge, that he gets a power to withdraw or recall the said cases or appeals. That would obviously not apply to such cases which are on the file of the Magistrate, inasmuch as, the criminal cases are not made over by the Sessions Judge to the Magistrate, as the cases are filed directly in the Court of the Magistrate. This has necessitated employment of the different terminology in Sections 409 and 410 as against the earlier three sections. However, the effect of a transfer Under Section 403 and the withdrawal or recalling of a case Under Section 409 would be identical. In effect, the case cannot be transferred by the Sessions Judge under See. 409 because it is originally not filed in that particular Court. It has to be withdrawn or recalled, because it is the authority which has already made over a case to another Court. It is also worth noting that after withdrawal or recalling of such a case or appeal, the Sessions Judge is empowered Under Section 409(3) either to make it over to the other Judge, that is, Asst. Sessions Judge or the Addl. Sessions Judge or to try to hoar the matter himself. This is again in contest to the provisions contained in Sec, 409, in as much as, a Sessions Judge after directing transfer of a case from one Criminal Court to another Criminal Court, obviously, has no jurisdiction to hear that case himself as the said case is only triable by a Judicial or Metropolitan Magistrate. An Addl. Sessions Judge or an Asst. Sessions Judge gets jurisdiction to try a case only after it is allotted to him by the Sessions Judge of the division concerned, The High Court also may by special order direct such a judge to try a case. This power to the Sessions Judge or the High Court to allot a case is given by Section 194, and not by Section 409. Section 409 nowhere deals with the powers of the High Court to transfer a case. The provisions of Sections 194 and 409) are meant to serve different purposes. One does not overlap the other. The former deals with the powers of the Sessions Judge or the High Court to make over a case or cases, while the latter deals with the powers of the Sessions Judge to recall a case. Section 194 gives power to the Sessions Judge for distribution of business.