THE HON'BLE SRI JUSTICE G. KRISHNA MOHAN REDDY
TRANSFER CRIMINAL PETITION No.154 of 2012
05-10-2012
Aijaz Ali Qureshi and others
The State of A.P. and another
Counsel for the Appellant: Sri M. Layeeq Khan
Counsel for Respondent No.2: Public Prosecutor
<Gist:
>Head Note:
?Cases referred:
2007 CRI.L.J. 1877
ORDER:
1. This Criminal Petition is filed under Section 407 of the Code of Criminal
Procedure, 1973 (Cr.P.C) to set aside order dated 03.5.2012 passed in Transfer
Crl.M.P.No.202 of 2012 (Crl.M.P.) on the file of the Court of Metropolitan
Sessions Judge, Hyderabad, transferring C.C.No.725 of 2009 (C.C) on the file of
the Court of VIII Additioinal Metropolitan Sessions Judge, Hyderabad, to try and
dispose of along with S.C.No.540 of 2011 on the file of the latter Court under
Section 408 Cr.P.C.
2. Whereas the petitioners herein are the respondents in the Crl.M.P. and A1
to A8 in the C.C., the second respondent herein is the petitioner in the
Crl.M.P. and defacto complainant in the C.C. For convenience sake, I refer the
parties as arrayed in the Crl.M.P. from here afterwards.
3. The question raised here is whether by virtue of clause (iii) of Section
407(1)(c) Cr.P.C., the Sessions Judge got authority to transfer the case as was
done in this case.
4. Learned counsel for the respondents would contend that by virtue of the
said clause under Section 407(1)(c) Cr.P.C., only the High Court got the
authority to commit the case to the Court of Session for conducting necessary
trial along with the Sessions Case by reason of which the Metropolitan Sessions
Judge got no authority to transfer the C.C., which in fact amounts to committing
the case to the Court of VII Additional Metropolitan Sessions Judge, Hyderabad
directly which is not permissible under law. He has placed reliance in this
context upon a decision reported in C.H. Abdul Salam v Sameera1 rendered by
Kerala High Court.
5. Therefore, it is to be seen as to whether the transfer of the case
effected by the Metropolitan Sessions Judge is proper or not. With regards to
the subject on hand it is necessary to distinguish what is meant by committal
and what is meant by transfer of a criminal case from one criminal court to
another criminal Court within a sessions division as per law. In fact the
language employed in Section 209 Cr.P.C. itself gives a clear picture of this
distinction which is fortified by the corresponding provisions enumerated in the
Sections 407 and 408 Cr.P.C. This section deals with the question of committal
of a case to the Court of Session from a Court of Judicial Magistrate of First
Class when an offence is exclusively triable by the court of Sessions subject to
the conditions incorporated thereunder. Only in this Section the question of
sending a criminal case, which is exclusively triable by a Court of Session, to
a Court of Session is termed as "committal". The language used is to be taken
in the true spirit of the intendment of the legislation. Therefore, any other
mode of sending a criminal case from one Court to another Court as employed in
the Code cannot be taken as "committal" of that case from the first Court to the
second Court. It actually enjoins:
Commitment of case to Court of Session when offence is triable exclusively by it
When in a case instituted on a police report or otherwise, the accused appears
or is brought before the Magistrate and it appears to the Magistrate that the
offence is triable exclusively by the Court of Session, he shall-
(a) Commit, after Complying with the provisions of Section 207 or Section 208,
as the case may be, the case to the Court of Session, and subject to the
provisions of this code relating to bail, remand the accused the custody until
Such commitment has been made;
(b) Subject to the provisions of this Code relating to bail, remand the accused
to custody during, and until the conclusion of, the trial;
(c) Send to that Court the record of the case and the documents and articles, if
any, which are to be produced in evidence;
(d) Notify the Public Prosecutor of the commitment of the case to the Court of
Session.
6. Section 407 Cr.P.C., deals with the power of the High Court in respect of
transfer of cases and appeals, whereas Section 408 Cr.P.C., deals with the power
of Sessions Judge to do so. It is necessary to extract these provisions for
proper appreciation of the question on hand.
Section 407 reads:
Power of High Court to transfer of cases and appeals.-
(1) Whenever it is made to appear to the High Court-
(a) that a fair and impartial inquiry or trial cannot be had in any Criminal
Court subordinate thereto, or
(b that some question of law of unusual difficulty is likely to arise, or
(c) that an order under this section is required by any provision of this Code,
or will tend to the general convenience of the parties or witnesses, or is
expedient for the ends of justice,
it may order-
(i) that any offence be inquired into or tried by any court not qualified under
Sections 177 to 185 (both inclusive), but in other respects competent to inquire
into or try such offence;
(ii) that any particular case or appeal, or class of cases or appeals, be
transferred from a criminal court subordinate to its authority to any other such
Criminal Court of equal or superior jurisdiction;
(iii) that any particular case be committed for trial to a Court of Session; or
(iv) that any particular case or appeal be transferred to and tried before
itself.
(2) The High Court may act either on the report of the Lower Court, or on the
application of a party interested, or on its own initiative:
Provided that no application shall lie to the High Court for transferring a case
from one Criminal Court to another Criminal Court in the same sessions division,
unless an application for such transfer has been made to the Sessions Judge and
rejected by him.
(3) Every application for an order under sub- section (1) shall be made by
motion, which shall, except when the applicant is the Advocate- General of the
State, be supported by affidavit or affirmation.
(4) When such application is made by an accused person, the High Court may
direct him to execute a bond, with or without sureties, for the payment of any
compensation which the High Court may award under sub- section (7).
(5) Every accused person making such application shall give to the Public
Prosecutor notice in writing of the application, together with copy of the
grounds on which it is made; and no order shall be made on of the merits of the
application unless at least twenty- four hours have elapsed between the giving
of such notice and the hearing of the application.
(6) Where the application is for the transfer of a case or appeal from any
subordinate Court, the High Court may, if it is satisfied that it is necessary
so to do in the interests of justice, order that, pending the disposal of the
application, the proceedings in the subordinate Court shall be stayed, on such
terms as the High Court may think fit to impose: Provided that such stay shall
not affect the subordinate Court' s power of remand under section 309.
(7) Where an application for an order under sub- section (1) is dismissed, the
High Court may, if it is of opinion that the application was frivolous or
vexatious, order the applicant to pay by way of compensation to any person who
has opposed the application such sum not exceeding one thousand rupees as it may
consider proper in the circumstances of the case.
(8) When the High Court orders under sub- section (1) that a case be transferred
from any Court for trial before itself, it shall observe in such trial the same
procedure which that Court would have observed if the case had not been so
transferred.
(9)Nothing in this section shall be deemed to affect any order of Government
under section 197.
Section 408 reads:
Power of Sessions Judge to transfer cases and appeals.-
(1) Whenever it is made to appear to a Sessions Judge that an order under this
sub-section 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 session's division.
(2) The Sessions Judge may act either on the report of the lower court, or on
the application of a party interested or on his own initiative.
(3) The provisions of sub-sections (3), 4), (5), (6), (7) and (9) of section
407 shall apply in relation to an application to the Sessions Judge for an order
under sub-section (1) as they apply in relation to an application to the High
Court for an order under subsection (1) of section 407, except that sub-section
(7) of that section shall so apply as if for the words "one thousand" rupees
occurring therein, the words "two hundred and fifty rupees" were substituted.
7. Pertinently the emphasis of learned counsel for the defacto
complainant in this context is upon clause (iii) of Section 407(1)(c) Cr.P.C.,
which reads that whenever it is made to appear to the High Court that any
particular case be committed for trial to a Court of Session, it has power to do
so.
8. It is emphatical that with reference to the power of High Court three
clauses i.e., clauses (ii), (iii) and (iv) are incorporated in sub-section(1)(c)
of Section 407, two with regards to the transfer of a criminal case and the
other with regards to committal of a criminal case. Subject to the sub-section
clause (ii) enjoins "That it may order transfer of a case or appeal or class of
cases or appeals from a criminal court subordinate to its authority to any other
such criminal court of equal or superior jurisdiction", clause (iv) enjoins
"That any particular case or appeal be transferred to and tried before itself"
which are subject to sub-section (2), which contemplates "The High Court may act
either on the report of the Lower Court, or on the application of a party
interested, or on its own initiative provided that no application shall lie to
the High Court for transferring a case from one Criminal Court to another
Criminal Court in the same sessions division, unless an application for such
transfer has been made to the Sessions Judge and rejected by him." and clause
(iii) enjoins "That any particular case be committed for trial to a Court of
Session". Thus these aspects are dealt with under different contexts with
regards to the question of the powers of the High Court in that behalf. What is
significant is that the procedural aspects regarding the transfer of a criminal
case have been separately dealt with under sub-sections 3 to 9 in Section 407
which are adopted in Section 408 which separately deals with such power of the
Sessions Court within its sessions division. If the word "committal" does not
differ from the word "transfer" within the parameters of the legal terminology,
the employment of such different sub-sections or clauses would not have been
done.
9. The powers of committal or transfer of criminal cases of the Judicial
Magistrate of First Class, High Court and Sessions Judge have been categorically
given in the provisions enumerated respectively. There is no confusion or
overlapping of any of the provisions. The power given under Section 209 Cr.P.C.
to commit a criminal case to a Court of Session subject to that that case should
be exclusively triable by the Court of Session is quite distinguishable from the
power of the Sessions Judge to transfer a criminal case from one criminal court
to another criminal court within his Sessions Division as enjoined by Section
408 Cr.P.C. Significantly Section 209 Cr.P.C. does not speak of committing a
criminal case to the Court of Session, which is not exclusively triable by the
Sessions Court whereas Section 408 does not speak of committal of a criminal
case in specific terms. There is no provision in the Code which enables the
Judicial Magistrate of First Class to transfer a criminal case from his court to
any other criminal court within the Sessions Division, nor there is any
provision in the Code which enables the Sessions Judge to commit any case to the
Court of Sessions as envisaged in Section 209 Cr.P.C.
10. In every Sessions Division there would be number of criminal courts of the
category of Judicial Magistrate of First Class, Assistant Sessions Judge, and
Additional Sessions Judge. Under Section 408 Cr.P.C. vide powers have been
conferred on the Sessions Judge to transfer a criminal case or an appeal from
one criminal court to another criminal court of higher jurisdiction within his
Sessions Division without putting any restrictions when it is made to appear to
him that it is expedient to do so to meet the ends of justice. Thereby the
words used in the Section, "From one criminal court to another criminal court"
cannot be confined only to a particular category of courts within the Sessions
Division. Hence the word, "committal" as used in clause (iii) of Section
407(1)(c) Cr.P.C. cannot be equated with the word "Transfer" as used in Section
408 Cr.P.C. In other words, the power of a Sessions Judge to transfer a
criminal case from one criminal court to another criminal court within his
Sessions Division cannot be curtailed by virtue of clause (iii) of Section 407
(1)(c) Cr.P.C., which deals with a different mode. The word, "committal" used
in clause (iii) of Section 407 (1)(c) Cr.P.C. should be read in conjunction with
the procedure laid down in Section 209 Cr.P.C. with regards to the committal of
a criminal case, which is exclusively triable by a Court of Session, by a
Judicial Magistrate of First Class to the Court of Session. When Section 407
deals not only with the power of High Court to transfer a criminal case from one
criminal court to another criminal court subject to the question of jurisdiction
to entertain the matter but it also deals with the power to order for committing
a criminal case to the Court of Session, it is not appropriate to confine its
power only to the question of committal restricting the amplitude of the Section
to that extent only. If that is the case the provisions incorporated in the
section about the power to transfer a criminal case would become redundant.
11. In fact in the decision cited by learned counsel for the petitioners in
C.H.Abdul Salam v Sameera (supra), it was observed as follows.
Section 407(1)(iii) of Cr.P.C. gives power to the High Court to direct the
Magistrate Court to commit a case for trial to the Sessions Division for
simultaneous trial with another Sessions Case pending in that Sessions Division.
It is a wide power to be exercised in the interest of justice. Sessions Court
has got power under Section 408 to transfer a particular case from a criminal
court to another criminal court in that Sessions Division. Neither Section 408
nor any other provision in Cr.P.C. empowers the Sessions Court to call for a
case from the Magistrate Court for trial to that Court without a committal
order. A reading of Section 407(3) would make it clear that a power akin to
Section 407(8) is not vested with the Sessions Court even though Sub-sections
(3) to (7) and (9) of Section 407 were made applicable to Sessions Court.
However, the question arising for considering is whether it is possible for the
High Court to exercise that power before such an application is filed before the
Sessions Court as held in Santhosh's case. The proviso to Section 407(2) of
Cr.P.C. provides that no application shall lie to the High Court for
transferring a case from one Criminal Court to another Criminal Court in the
same Sessions Division, unless an application for such transfer has been made to
the Sessions Judge and rejected by him. It is settled law that before an
application can be filed before the High Court for transfer of a case from one
court to another court in the same sessions division one has to file an
application before the Sessions Court and its rejection by the concerned
Sessions Judge is a pre-condition (see Krishna Panicker v State of Kerala, 1981
Crl.LJ. 1973 (Ker.), Radhey Shyam and Anr. v. State of U.P. 1984 (2) Crimes 50
(All.) and Manindra Kumar v. State of Rajasthan 1992 Crl. L.J. 1392 (Raj.)
Section 408(1) of Cr.P.C. only gives power to the Sessions Judge to transfer a
case pending in one Criminal Court to another Criminal Court in his Sessions
Division. However, it does not give power to the Sessions Court to call for a
case to that court from the Magistrate Court without formal Committal. Committal
of a case from the Magistrate Court to the Sessions Court cannot be equated to
transfer under Section 408(1) of Cr.P.C. In the case of a direction to commit a
case from the Magistrate Court to Sessions Court the proviso is not a bar in
exercising the power of the High Court conferred under Section 407(1)(iii) of
Cr.P.C. Therefore, we are in perfect agreement with the decision of the learned
Single Judge of this Court in State of Kerala v Annamma, 2003(2) KLT 763, we are
unable to agree with the decision in Santosh v State of Kerala, 2006 (3) KLT
439. However, we are of the view that the ideal procedure is to file an
application before the Magistrate itself by the Public Prosecutor or by the
aggrieved party requesting the Magistrate to commit the case under Section 323
of Cr.P.C. to the Sessions Court where the connected case is pending. If the
case is not committed by the Magistrate and the aggrieved party files a petition
before the Sessions Court for transfer even though Sessions Court has no power
to transfer it can dispose of the Transfer Application directing the Magistrate
to consider the request to commit the same to the Sessions Court where the
connected case is pending. But the aggrieved party can apply to this Court under
Section 407(1)(iii) of Cr.P.C. for directing the Magistrate Court to commit a
case for trial to the Court of Sessions along with connected cases.
12. On the analysis of the scope of Sections 209, 407 and 408 Cr.P.C., I
am unable to agree with the observations made that Section 408(1) Cr.P.C. only
gives power to a Sessions Judge to transfer a case pending in one criminal court
to another criminal court in his Sessions Division, but it does not give power
to the Sessions Court to call for a case to that Court from the Court of
Judicial Magistrate of First Class without formal committal, because the
committal of a case from a Court of Judicial Magistrate of First Class to a
Court of Session under Section 209 Cr.P.C. or under Section 407(1)(c)(iii)
Cr.P.C., cannot be equated with power of transfer as enshrined in Section 408(1)
Cr.P.C. Consequently, I am also unable to agree with the observation that the
ideal procedure is to file application before the Magistrate itself by the
Public Prosecutor or by the aggrieved party requesting the Magistrate to commit
the case under Section 323 Cr.P.C. to the Court of Sessions where the connected
case is pending. Consequently the observation made that if the case is not
committed by the Magistrate and the aggrieved party file an application before
the Court of Sessions for transfer, even though the Sessions Court has no power
to transfer, it can dispose of the transfer application directing the Magistrate
to consider the request to commit the same to the Sessions Court where the
connected case is pending is also not acceptable. In my considered opinion,
these observations are quite contradictory to the provisions of Section 408
Cr.P.C., which empowers the Sessions Judge to transfer a criminal case from one
criminal court to another criminal court, which got superior jurisdiction,
within his Sessions Division.
13. Therefore, for the reasons discussed above, the plea of the learned
counsel for the accused is not tenable as I see no infirmity in the order passed
by the Sessions Court. Ultimately, the petition is liable to be dismissed.
14. The Transfer Criminal Petition is, accordingly, dismissed.
_________________________
(G. KRISHNA MOHAN REDDY, J)
Date:05-10-2012
