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Varjiwan P. Seth Vs. Ratanlal Jahotia and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAndhra Pradesh High Court
Decided On
Case NumberCriminal Misc. Petn. No. 1155 of 1962
Judge
Reported inAIR1964AP59; 1964CriLJ176
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 193(1), 193(2), 439, 528 and 528(1C)
AppellantVarjiwan P. Seth
RespondentRatanlal Jahotia and anr.
Appellant AdvocateB.C. Jain, Adv.;Public Prosecutor
Respondent AdvocateS.B. Dixit, Adv.
DispositionPetition dismissed
Excerpt:
criminal - transfer of petition - sections 193 (2) and 528 (1-c) of criminal procedure code, 1898 - appellant resisted transfer of petition from sessions judge to additional sessions judge in appeal - high court interpreted the word 'cases' in light of section 528 - the word 'cases' embrace petition also in it - transfer of cases is discretionary power of judge - held, petition can be transferred on reasonable grounds in end of justice. - motor vehicles act (59 of 1988)section 149 (2): [v. gopala gowda & jawad rahim, jj] insurers entitlement to defend the action joint appeal by insured and insurer - held, the language employed in enacting sub-section (2) of section 149 appears to be plain and simple and there is no ambiguity in it. it shows that when an insurer is impleaded and has.....ordergopalrao ekbote, j.1. this criminal miscellaneous petition is filed to set aside the order of the additional sessions judge, hyderabad, dated 31st july, 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 whichare 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.....
Judgment:
ORDER

Gopalrao Ekbote, J.

1. This Criminal Miscellaneous Petition is filed to set aside the order of the Additional Sessions Judge, Hyderabad, dated 31st July, 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 whichare 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 31st July, 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 fordisposal: 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 asessions 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.

4. From a close reading of these provisions t becomes abundantly clear that the Code uses the words 'Court of Session', 'Sessions Judge', 'Additional Sessions Judge' and 'Assistant Sessions Judge' with a difference in their meanings. The phrase 'Court of Session' is compendious to include Additional and Assistant Sessions Judges. Sometimes this phrase is used synonymously with the Sessions Judge, who it is clear is the presiding Judge of the Court of Session. It is however clear that there can be only one Court of Session in each sessions division. It may sit at different places and may be manned by a number of Addi-tional or Asst: Judges. Nevertheless the court is the Court of Session. It is meaningless to refer to the Sessions Judge as the Court of Sessions Judge and the Additional Sessions Judge as the Court of the Additional Sessions Judge and so on, except perhaps colloquially. In the High Court, for example, we do not refer to the constituent parts as the Courts of any particular Judge or judges whether permanent or additional, but only refer as High Court; likewise in the Court of Sessions, Sessions Judge, Additional. Sessions Judge, and Asst. Sessions Judge or its constitutent parts. They are not considered in the Code as separate courts.

Thpre are some, revisions such as Sections. 193(3), 406 and 406A apart from other provisions which clearly indicate that the Legislature clearly intended to clothe the 'Court of Session' with a meaning of a Court presided over by the Sessions Judge. Sections 17 (4), 123(3-B), 193 (2), 409 and 438 leave us in no doubt that the Court of Session shall be presided over by the Sessions Judge and it is he who would receive the cases, appeals, revisions and other independent petitions. This power is not so conferred on the Additional or Asst. Sessions Judges by the Code. They are to hear only such cases, appeals, revisions and other petitions which may be transferred by the presiding Sessions Judge in the Court of Session unless, of course, the State Government by general or special order has directed otherwise, or otherwise directed generally by the Sessions Judge. It is plain that the relevant provisions of the Code, lead us to the conclusion that there can only be one Court of Session in a Sessions division and there can only be one Judge of that Court. It is incumbent upon the State Govern ment to establish the court of Session and to appoint the Sessions Judge to that Court. The State Government may, however, appoint any number of Additional Sessions Judges and Asst. Sessions Judges who will exercise jurisdiction in that Court of Session. It is also clear that a court presided over by an Additional or Asst. Sessions Judge is also a Court of Session. But it must be remembered that it is a part of con stitution of one and that the fame Court of Session which is presided over by the Sessions Judge. The Asst. Sessions Judge is subordinate to the Sessions Judge, whereas the Additional Sessions Judge is not.

The powers of the Additional Sessions Judge are co-ordinate and run parallel with those of the Sessions Judge. The jurisdiction which he enjoys is concurrent and co-extensive with that of the Sessions Judge, the only difference between them being that whereas the Sessions Judge presides over the Court of Session and is the person who alone can receive the cases, appeals, revisions and other petitions, the Additional Sessions Judge cannot. He can only hear such cases which are transferred to him by the Sessions Judge, unless the State Government directed otherwise. The power of the Asst. Sessions Judge to deal with the cases is however limited. It, is unnecessary to deal with it here. The expression 'Court of Session must, therefore, be understood to refer to the Sessipns Judge, Additional Sessions Judge, or Asst. Sessions Judge, as the case may be, inregard to cases tried by him. But it must beremembered that although the Asst, and Additional Sessions Judges are constituent parts of the court of Session, the powers to hear the cases either are circumscribed with conditions, or are limited in their nature. It is true that sometimes the 'Court of Session' is used in the Code as synonymous with the Sessions Judge and in others it is used indicating the constituent parts of the same. It has however to be understood in reference to the context in which it is used. But one thing which is abundantly clear is that the court of Session shall be presided over only by the Sessions Judge, and Additional and Assistant Sessions Judge although they are constituents of the court of Session, shall hear only such cases which are transferred to them by the presiding Sessions Judge.

5. Now the Sections under which the Sessions judge is empowered to make over cases to the Additional Sessions Judge are mentioned in different provisions of the Code. It has already been pointed out that Section 17 (4) is applicable to urgent petitions in cases where the Sessions Judge is unavoidably absent or incapable of action. The Sub-section does not seem to he restricting the area of applications which could be disposed of by the Additional or Assistant Sessions Judge, except that they are urgent. Although, therefore, a case may not stand transferred to the Additional or Assistant Sessions Judge under this Sub-section if the Sessions Judge has made provisions for the-disposal of such urgent applications in any of such cases, the Additional or Assistant Sessions Judge will certainly be empowered to dispose them of. I am not concerned with this provision in the present enquiry because it is nobody's case that the application was disposed of under Section 17 (4)

The next provision which empowers the Sessions Judge to transfer of any case to the Additional Sessions Judge is Section 123(3-B). That being a Section relating to the imprisonment in default of security is obviously not relevant for our purpose. Then comes Section 193(2). It is in the following terms r

'Additional Sessions Judges and Assistant Sessions Judges shall try such cases only as the State Government by general or special order may direct them to try, or as the Sessions Judge of the division, by general or special order, may make over to them for trial.'

I have to consider whether a transfer petition filed under Section 528 falls within the ambit of Sub-section (2) of Section 193. I will come back to this after considering the other provisions which empower the Sessions Judge to transfer the cases. Section 409 specifically provides that an Additional Sessions Judge or an Asst. Sessions Judge shall hear only such appeals as the State Government may by general or special order direct, or as the Sessions Judge of the division may make over to him. Similarly Section 438(2) provides that an Additional Sessions Judge shall have, and may exercise, all the powers of a Sessions Judge under that Chapter in respect of any case which may be transferred to him by or under any general or special order of the SessionsJudge. I am not concerned with Sections 409 and 438 obviously because the transfer petition with which I am dealing is neither an appeal, nor falls under Chapter 33 of the Code with which Section 438(2) is concerned.

6. If the Sections which are not relevant are excluded, I am left only with Section 193(2), which, in my opinion, requires a closer examination in order to find out whether a transfer petition filed before the Sessions Judge can be made over to an Additional Sessions Judge for disposal. The argument of the learned Public Prosecutor is that Sub-section (2) of Section 193 relates to cases mentioned in Sub-section (1) of that Section. The contention is that the words 'such cases' appearing in Sub-section (2) refer to the following words occurring in Sub-section (1) 'Cognizance of any offence ............ unless the accusedhas been committed to it'. In support of this contention the learned Public Prosecutor relies upon an unreported decision of this Court. I am unable to appreciate the submission. In my opinion the phrase 'such cases' refer to those cases which the State Government by general or special order may direct the Additional and Asst. Sessions Judge to try, or those cases as the Sessions Judge of the division by general or special order may make over to the Additional and Asst. Sessions Judges for trial. It has no reference to Sub-section (1). The change in the language of Sub-sections (1) and (2) leaves me in no doubt that Sub-section (2) is not restricted in its application and is not confined to cases of which an offence is tried.

It must be remembered that Sub-section (1) clearly states that no Court of Session shall take cognisance of any offence as a Court of original jurisdiction unless the accused has been committed to it by a Magistrate duly empowered in that behalf, whereas Sub-section (2) does not deal with cognisance of offences, but only deals with the power of the Additional Sessions Judges and Assistant Sessions Judges to try cases. It is true that the marginal note of the Section is 'Cognizance of offences by Courts of Session', but the ideas indicated in the two sub-sections, as far as the question under my consideration is concerned, are entirely different. It is not in doubt that Sub-section (1) precludes the Court of Session, which includes Additional or Assistant Sessions Judge, from taking cognizance of any offences as a Court of original jurisdiction unless the accused is committed to it. It is not for the purposes of removing any doubt which may be created as a consequence of Sub-section (1) that Sub-section (2) is enacted but its purpose seems to be to make it abundantly clear that Additional Sessions Judges and Asst. Sessions Judges shall try such cases only as the State Government by general or special order may direct them to try, or as the Sessions Judge by general or special orders make over to them for trial. It only indicates that it is the Sessions Judge who must decide to allot by general or special order cases which will be tried by Additional' Sessions Judge. The State Government also by general or special order may so direct, but the Additional Sessions Judge cannot receive directly any case for trial. The words 'case' and 'trial' need not necessarily be meant to carry restricted meaning. They are broadbased to cover in my opinion, larger area than cases in which offences are tried. They must, therefore, be understood to have been used in a very large and comprehensive sense. I would prefer to give effect to Sub-section (2) according to its plain meaning, unless the language of Sub-section (2) compels me to limit it to the trial of offences.

In my opinion we will be doing violence to the language used in Sub-section (2) if it is interpreted in a narrower way. Not only that, but we will be curtailing the powers of the Sessions Judge to make over cases which can also be tried, but nevertheless are not trial of offences. A reading of the various provisions of the Code clearly indicates that the Code is not confined to the cases in which offences only are tried, but interests itself, in many other type of cases which may not be strictly called as trial of offences, for example, security proceedings or maintenance proceedings or applications for bail, which can by no stretch of imagination be construed as cases wherein offences are tried; nevertheless they are the cases which are tried by the Criminal Courts.

7. It would, therefore, be useful to try to understand the meaning of the words 'cases' and 'trial' used in Sub-section (2) of Section 193. The word 'cases' has no fixed or universal meaning. It must be construed with regard to the particular context in which it is used and with regard to the scheme and purpose of the measure concerned. That word is, in my opinion, broader and wider than the words 'trial of offences'. I make no attempt to fasten any formal definition of the word 'cases' which, occurs in Section 193(2). I would only note that it is a word of wide or comprehensive import and clearly covers far larger area than would be covered by such words as 'appeal', 'revision' or 'trial of offences'. There is, therefore, in my opinion, nothing incongruous or repugnant in holding that the word 'case' may cover a petition filed under Section 528 of the Code before the Sessions Judge. This word quite often is used in the Code with an intention to give it a wider meaning. It undoubtedly differs from the word 'appeal' or revision'. Nevertheless it retains its broader meaning in reference to ail other matters which are not called as 'appeal' or 'revision', trial of offence being only a section of the various cases which are contemplated by the Code. The word 'case' has been held to be comprehensive enough to include proceedings under Section 107 of the Code. Proceedings under Section 110 also are determined to fall under that word. Enquiries under Section 122 of the Code or proceedings under Section 133 have also been held as cases. Proceedings under Sections 144, 145 and 147 have also been held to be cases. When all these proceedings fall within the definition of the word 'case', I see no reason why the proceedings instituted to transfer a case from one court to the other, either pending before the Sessions Judge or any other Subordinate Judge, cannot be called a case.

It must be remembered that Section 528(2) empowers any Chief Presidency Magistrate, District Magistrate or Sub-Divisional Magistrate to withdraw or recall any case and either try thatcase himself or make it over to any other subordinate Magistrate. If a petition is filed before any of such Magistrate under Sub-section (2) of Section 538, in my opinion, the Sessions Judge would certainly be entitled to transfer such petitions to any other competent Magistrate to deal with such transfer petitions. Similarly any petition filed before him can certainly be made over to the Additional Sessions Judge for disposal. There is no reason to select these proceedings out of several others contemplated by the Code and say that to this extent the Sessions Judge is neither empowered to withdraw nor transfer such cases. It is needless in my opinon to cite various authorities to support the conclusion that the various types of proceedings contemplated under the Code and other Acts are construed as cases for the purposes of Section 193(2). Suffice it to say that even the case in regard to trial of offence whose cognisance is not taken, is considered to be a case fit for being transferred. The general tendency appears to lend a broader meaning to the word 'case' appearing in Sub-section (2) of Section 193.

In fact in Binode Behari Nath v. Emperor, AIR 1923 Cal 649 a Bench of the Calcutta High Court observed that Section 193(2) should be interpreted in a liberal sense and in Mohd. Ayub v. State, : AIR1952All215 a Bench of the Allahabad High Court declared that the words 'any case' are not restricted to offences of criminal cases. This provides an effective answer to the argument that Sub-section (2) should be restricted to the cases mentioned in Sub-section (1) of Section 193. I have pointed out that not only the language of Sub-section . (2) is emphatically clear, but the trend of the judicial authorities also point to the same direction that the words are not used in a restricted sense and they are not necessarily confined to the cases mentioned in Sub-section (1) of that Section.

8. Let me now consider the meaning which can be attributed to the word 'try' or 'trial' occur-ring in the said sub-section. The word 'try' and 'trial' similarly have no fixed or universal meaning but they are words which must be construed like any other such words with regard to the particular context in which they are used, and also with regard to the scheme and purpose of the measure concerned. The word 'trial' is not de-fined in the Code. It means according to Wharton's Law Lexicon 'the examination of a cause civil or criminal, before a Judge who has jurisdiction over it according to laws of the land', In the Oxford Dictionary the meaning of the word given under the heading 'trial' is : (1) The examination and determination of a cause by judicial tribunal; determination of the guilt or innocence of an accused person by a Court; (2) The determination of a person's guilt or innocence, 01 the righteousness of his cause, by a combat between the accuser and accused. The explanation of the same term in Strond on the authority of the observation of Field, J. in Gath v. Howarth. 28 S.J. 427 (Strouds' Judl. Dictionary, page 3092) is that it is 'the conclusion by a competed Tribunal of the questions in issue in legal proceedings whether civil or 'criminal'. Again in Bouvier's Law Dictionary the term is stated on: theauthority of a decision in U. S. v. Curtis, Bon-vier's Law Dictionary, page 3320 to mean 'the examination before a competent Tribunal according to the laws of the land of the facts put in issue in a cause for the purpose of determining such issue'.

These citations express in different words precisely the same idea i.e., that the word 'try or 'trial' is not restricted to trial of offence, but covers a larger area and is used in regard to any legal proceedings and in regard to any issue whether it be civil or criminal. I am therefore not impressed with the argument that the word 'try' or 'trial' would be confined only to a limited meaning i.e. trial of offence. I am supported in my conclusion by a Full Bench decision of the Madras High Court in Venkatachinnayya. v.. Emperor, ILR 43 Mad 511 at 522 : (AIR 1920 Mad 337 at p. 341) wherein Wallis, C. J., observed -'

'...... trial generally means the determination of the issues arising in the particular case. As pointed out in History of English Law, Pollock and Maitland, Vol. II, page 598, the word 'trial' comes from the French Trier, Latin Traitare, and was first used of the testing or trial of challenges to jurors. Triers of challenges are still appointed when necessary in English criminal trials. Though we talk of the trial of persons, what are really tried both in civil and criminal cases, are issues'. It is no doubt true that Ayling, J., has made the following observation :. 'What, then, is a 'trial'? It is curious that the phrase is not defined in the Code, although it is explained in Section 4 that the term 'inquiry' includes every inquiry other than a trial conducted under this Code, by a Magistrate or Court. It looks as if the framers of the Code regarded the word 'trial' as of such obvious significance as to require no definition. At the same time it is noticeable that in many sections of the Code the words 'inquiry' and 'trial' are used in close juxtaposition, and apparently intended to signify two different things. I can find nothing to support the idea that either is ever used in any general or popular sense. In the absence of an express definition we can only look at the various sections of the Code in which the word 'trial is used: and I can find none in which it is not used in connection with proceedings in which a person stands before a Court empowered to convict him o some 'offence' alleged against him. The word 'trial' as used in the Criminal Procedure Code seems to presuppose the idea of an offence -- a word defined in Section 4'.

The learned Judge was therefore of the opinion that as no offence is involved in an inquiry under Chapter VIII of the Code, inquiries Under that chapter are not trials. This conclusion was however not accepted by the learned Chief Justice with whom Coutts Trotter, J.. agreed. He said at page 526 (of ILR Mad) : (at p. 343 of AIR):

'It is quite true that the word 'trial' is notdefined in the Code, but it may not unreasonablybe urged that the definition of 'inquiry' impliedly defines 'trial' as every proceeding which isnot an inquiry. The question is whether we arebound to confine ourselves, to the four walls, ofthe Code and taking the nearest approach we can get to a definition, express or implied, apply it rigidly, or whether we are at liberty to supplement the Code by an application of the principles that lie at the root of the administration of Criminal law ............... If we adoptsuch a procedure here, there could hardly be my doubt that the proceedings under Section 107 and the cognate sections have all the features of a trial'.

Thus the majority opinion declined to give the word 'trial' a limited meaning confining it only to the trial of offences. This conclusion is further supported by another Bench of the Madras High Court in the matter of Ramaswamy Chetty, ILR 27 Mad 510. For the reasons given above I reach the conclusion that the term 'trial' is of a wider import and is not necessarily confined to the trial of offences. I can therefore legitimately include within its fold trial of any issue such as the petition under Section 528 of the Code.

9. It is thus plain that both the words 'case' and 'trial' used in Sub-section (2) of Section 193 do not relate to Sub-section (1) only, but covers a larger area. They have been interpreted by various Courts to include proceedings which, are not necessarily confined to the trial of offences. Various proceedings have been brought within the ambit of this phraseology. It would therefore be legitimate to include in that broad concept petitions filed under Section 528 also. No reason is shown as to why bail applications or transfer petitions which are filed with the Sessions Judge cannot be made over to the Additional Sessions Judge for disposal and why subsection (a) of Section 193 should be given a restricted connotation. When the Legislature intended to vest the Additional Sessions Judge with a co-ordinate jurisdiction, I fail to understand why it should be curtailed by giving the Section an interpretation which narrows down the jurisdiction of the Additional Sessions Judge and keeps intact the jurisdiction of the Sessions Judge. This attempt to discriminate the two jurisdictions of the Sessions and Additional Sessions Judges does not seem to me to be in consonance with the intention of the Legislature. The jurisdiction is co-ordinate and co-extensive. Powers to deal with the cases are the same and similar. There is therefore no reason to make an invidious distinction not contemplated by the Code as far as petitions under Section 528 are concerned.

I am therefore of the clear opinion that thepetitions filed under Section 528 with the SessionsJudge are cases which are to be tried like anyother proceedings in a judicial way therefore fallwithin the ambit of Section 193(2). Consequently a Sessions Judge can make over suchpetitions to the Additional Sessions Judge for disposal. On a review of the foregoing cases andprovisions of the Code, I cannot find any errorin the order of the learned Sessions Judge in making over the transfer petition filed before him fordisposal to the Additional Sessions Judge. Thelearned Additional Sessions Judge's order transferring the case now impugned therefore is notwithout, any jurisdiction.

10. I will now consider the cases discussed, before me as far as the above proposition, is concerned. In Queen Empress v. Kunjan Menon 1 Mad LJ 413 (FB), a Full Bench of the Madras High Court held that there can be only one Sessions Court in each sessions division; there may be more than one Judge of each Sessions Court. In Kameshwar Singh v. Dharamdeo Singh, (s) : AIR1957Pat375 (FB), a Full Bench of the Patna High Court held that the words 'Court of Session' appearing in Section 408 refer only to the Sessions Court presided over by the Sessions Judge and an Additional Sessions Judge or an Assistant Sessions Judge as a Judge of the Court of Session has no power to admit and receive the appeal filed in the Court of Session. Sahai, J., in a separate judgment brought out clearly the four broad propositions which appeared to him to follow from the relevant provisions of the Code. The conclusion to which I have reached gathers support from the third proposition which he has dealt with elaborately in his judgment.

In Narayanamma v. Satyanarayana, : AIR1960AP423 , Krishna Rao, J.. observed that the words of Section 409(2) Criminal Procedure Code are plain and emphatic. They enjoin on the Additional Sessions Judges and Assistant Sessions Judges to hear only such appeals as the State Government may by general or special order direct or as the Sessions Judge of the division may make over to them. The word 'only' conveys by necessary implication that they are prohibited from hearing other appeals filed in the Court of Session. In the case of Assistant Sessions Judges, there is a further limitation under the proviso to Sub-section (1) on their powers, namely, that they cannot hear any appeals unless they are of persons convicted on a trial held by a Magistrate of the Second or Third Class. Sanjeeva Row Nayu-du, J., it is true, however, has observed at p. 448 (of Andh WR) : (at p. 429 of AIR):

'Section 528 (1-C) gives power of transferring cases only to the Sessions Judge. The Additional Sessions Judge is nowhere given that power''.

But the other learned Judge has made no such observation in his judgment. In my judgment no assistance can be derived to the present case from that case. The learned Advocates agree that the above observation made by Sanjeeva Row Nayudu, J., in that case was obiter dicta. It does not appear from the words used in the dicta that they are used in connection with disposing of a question whether the Additional Sessions Judge can directly receive or transfer to his file any case from the Sessions Judge's Court. It is plain from a reading of the judgment that the Court possibly had not had its attention drawn in detail to the various provisions to which I was referred. The point I have to decide only came into that ease, if I may use the expression, by a side-wind, for any decision on that point was quite unnecessary for a decision of the main point involved in that case. That case therefore is not An authority for the proposition that Section 193(2) does not authorise the ' Sessions Judge to make over a petition filed under Section 528 to the Additional Sessions Judge, Superintedent and Remembrancer of Legal Affairs, Ben-gal v. Ijjatulla Paikar, 32 Cri LJ 842 : (AIR 1931 Cal 190) supports the analysis of the various provisions of the Criminal Procedure Code, which I have attempted.

11. I have therefore no hesitation in rejecting the argument evidenced before me that the Sessions Judge was not competent to transfer the transfer petition for disposal to the Addl. Sessions Judge or that the order of the Additional Sessions Judge transferring the case from one Magistrate to the other was bad in law on that account.

12. My attention was also drawn to two unreported cases decided by this Court. My learned brother, Sanjeeva Row Nayudu, J., in Criminal M. P. No. 66 of 1959 observed that the Additional Sessions Judge had no power or authority or jurisdiction to transfer a case pending in one Court in the territorial jurisdiction of the Court of Session in which he functions, to another Court. In the course of the judgment, it is no doubt true that the learned Judge observed:

'Section 193(2) deals with the power of Additional Sessions Judges to try and dispose of cases made over to them by the Sessions Judge of the division by a general or special order. This provision of course relates to the trial of cases which, as provided in Section 193(1) Criminal Procedure Code, could only be on the case being committed to the Court of Session. We are not concerned with the provision in disposing of these petitions,'

It is obvious that the learned Judge was not concerned with the analysis of Section 193(2) and in tact did not consider whether the transfer petition falls within the ambit of Section 193(2) or not.

This case was cited before a Bench of this Court Pudapu Naidu v. State of A. P., (1960) z Andh WR 3a4 at p. 327 : (1961 (1) Cri LJ 461 at p. 464). It was therein found that

'the order of transfer was attacked on two grounds, firstly on the ground that the Additional Sessions Judge has no jurisdiction to order the transfer of the case, and secondly on the ground of the general convenience of the parties. On the second point it was conceded by the Public Prosecutor that it was much more convenient from the point of view of the parties to have the case heard by the Razole Magistrate than by the Amalapurarn Magistrate. The learned Judge however proceeded to consider the first point and after considering various provisions of the Code based himself on Section 528 (1-C) and came to the abbvesaid conclusion,'

The Bench found that the learned Judge did not consider whether the Additional Sessions Judge of Rajahmundry has acted in his capacity as an Additional District Magistrate and what the combined effect of Sections 10(2) and 528 (2) would be, presumably because no data were placed before him touching that aspect of the question. Similarly a reading of the iudgment, to my mind, clearly shows that whether an application filed under Section 528 is a case to be tried within the meaning of Section 193(2) was not argued been the learned Judge and as is observed byhim he was not concerned with Section 193 (1) or (2). That decision, therefore, does not render any assistance to the petitioner as far as the question which fell for my consideration in this case is concerned.

The other case is. Criminal R. C, No. 229 of 1962 decided by Sharfuddin Ahmed, J. While deciding the question which fell for decision of my learned brother, he merely followed the judgment of Sanjeeva Row Nayudu, J., mentioned above. As p6inted out above that case was distinguished by the Bench. That Bench decision, it is clear from the judgment, was not brought to the notice of the learned Judge. That decision also docs not discuss the impact of Section 193(a) on the cases which are made over by the Sessions Judge to the Additional Sessions Judge. The decision also does not therefore throw any light on the proposition under my consideration.

13. The order of the Additional Sessions Judge transferring the case can be supported yet on another ground. It is conceded that the Additional Sessions Judge is also the Additional District Magistrate, and in that capacity he could have withdrawn or transferred the case from the Court of one Magistrate to the other. The argument that because the petition was made over by the Sessions Judge to the Additional Sessions Judge he cannot be deemed to have exercised the powers as Additional District Magistrate, has no substance. The distinction between elements which are essential for the foundation of jurisdiction and the matter in which such jurisdiction has to be assumed and exercised is of fundamental importance and should not be lost sight of in dealing with such matters. It is one thing to say that the Additional District Magistrate has no jurisdiction to transfer such cases, but it is entirely a different thing to say that the Additional District Magistrate passed an order ofi transfer in a case which was made over to hims by the Sessions Judge. It may be in the capacity of an Additional Sessions Judge. Nevertheless the distinction between the two remains.

That the distinction is well founded is manifest from the decision in Pisani v. Attorney General for Gibraltar, (1874) 5 P-C- 516. at pp. 522 and 520, In that case Sir Montague delivering the judgment of the Privy Council on the preliminary objection said:

'It is true that there was a deviation from the cursus curiae, but the Court had jurisdiction over the subject, and the assumption of the duty of another tribunal is not involved in the question.'

In that case an information by way of bill of complaint by consent was amended by the introduction of the following words:

'That the rights, if any, of the several Defendants may be ascertained and declared by decree of this Honourable Court, ' and that they may he ordered to pay each to the others and other of them their and his costs of this suit, and that this Honourable Court will give such further directions in the premises as shall be necessary.'

There was no stipulation that the right of appeal should be given up, and it appeared that theparties never contemplated that they were ceasing to keep the cause in curiae, or that the Judge was to hear it otherwise than a Judge, or that it was not to go on subject to all the incidents of a cause regularly beard in Court. In pressing the preliminary objection 'Mr. Fry maintained that the decree, as far as it declared the rights of the Defendants, must be regarded as an award of an arbitrator, and that the appeal was incompetent. In overruling that objection their Lordships of the Judicial Committee held that where there is jurisdiction over the subject-matter, but non-compliance with the procedure prescribed as essential for the exercise of jurisdiction, the defect might be waived. .

14. In Jhakar Abir v. Province of Bihar, AIR 1945 Pat 98 at-p. 103 (FB) it was decided that

''where a Court has jurisdiction to try an offence it is as a rule immaterial whether it has taken cognizance of an offence without being empowered to do so or whether the case has been transferred to it by another Court, which was not empowered to make an Older of transfer. Clauses (e) and (f) of Section 529 Criminal Procedure Code provide that the commission of some irregularity of this kind prior to the commencement of the trial does not vitiate the trial itself'.

This case of the Patna High Court was fully followed by the Punjab High Court, in Nishan Singh v. State, . In Rajagopal Rao v. State of A. P., : AIR1960AP184 , Seshachalapathi, J., observed:

'Where an Officer or authority has two capacities and an order is made by the Officer or the authority it will be valid if it is referable to either of the capacities of the officer or the authority concerned.'

In a similar case (1960) 2 Andh WR 324 : (1961 (1) Cri LJ 461) a Bench of this Court observed, in similar circumstances thus:

'.We are, however, satisfied that these are all curable, irregularities which do not affect the validity of the order if in point of fact Sri D. Sobbft Sao had the power to make the order. It is not the form of the order that matters but the power to make the order ...... he was evidently acting under Sub-section (2) of Section 528....'

Their Lordships held that as the Additional Sessions Judge had acted in his capacity as the Additional District Magistrate his order can be up-held in that capacity. Their Lordships approved the decision of Seshachalapathi, J., mentioned above.

15. For these reasons also the Additional Sessions Judge, who is also an Additional District Magistrate, was competent to transfer the case undoubtedly in the latter capacity, and if the order can be considered as passed in any one of the capacities, which is legal; then the order, cannot be struck down.

16. It was next argued by Mr. Jain, the learned Advocate for the petitioner, that after the case was made over by the Sessions Judge to the Additional Sessions Judge, notice was not given to the petitioners. I have two petitioners beforeme. One petitioner alone has filed an affidavit to say that he was not served with the notice. He had, therefore, no occasion to represent his grievance to the Court as to why the case should not be transferred from the Railway. Magistrate to the IVth City Magistrate. The other petitioner has not given his affidavit. In the counter-affidavit it is alleged that the complainant had deposited the process fee for the service of summons on all the accused. He also alleged that notices were served on all of them. In the presence of these allegations and counter allegations and in the absence of any record before me it is not possible for me to give any finding relating to the question of fact whether both the petitioners or at least one of them was not served with a notice. But it appears to me that the various other allegations made in the counter-affidavit have not been specifically met with in the reply affidavit. Be that as it may, there is no allegation that it has caused any special injury or prejudice to the petitioners. It is not denied that majority of them were served with the notice.

As a general rule it seems to me desirable that notice should be given of the application for transfer, but there is no rule of law that such notice ought to be given, or failure to give such a notice vitiates the order made in the transfer petition. In In re Masha Sabjee Sahib, 11 Cri LJ 533 (Mad) a Bench of the Madras High Court observed:

'As a general rule, notice should be given of the application for transfer but failure to give notice does not render the order of transfer illegal. Under the special circumstances, such order can be made without notice.'

The same view is supported by a decision in In re Syed Lala Mian Sahib, 9 Cri LJ 407 (Mad). The issue of a notice does not seem to me (mad) datory and the want of a notice does not amount to an illegality, but it may amount to a mere impropriety. This question is one which has to be decided on the facts of each case and will depend largely upon whether it has caused any injury to the person complaining of lack of notice. In Re Kumaraswamy Kalinga Rayar, AIR 1942 Mad 221 (1), where transfer of cases on the application of an accused to another Magistrate without notice to the other accused was made, that order was considered as not illegal.

The learned Advocate for the petitioner cited before me two cases:

Ramalinga Odayar v. Emperor, AIR 1928 Mad 560. Kamatchi Ammal v. Emperor, AIR 1929 Mad 511.

It is true that Deva Dass, J., in AIR 1928 Mad 560 set aside the order of the District Magistrate on tbe sole ground that the accused had no notice of the application for the transfer, but it must be understood in relation to the facts of that particular case. The previous authorities obviously were not brought to the notice of the Court. In the other case viz., AIR 1929 Madras 511, notice was considered to be desirable although the Section does not say that notice of an application for transfer of the case should be given.

The correctness of the ruling cannot be disputed, as it does not conflict with the other case cited above. I am therefore of the opinion that most of the accused were served with summons and it is not clearly established here that the applicants, or any one of them, were not served with notice.

In any case nothing is shown that a particular injury or prejudice is caused to them. There is material to show that they had knowledge of the transfer petition, and at the worst, it is an irregularity which does not vitiate the order passed. It cannot be forgotten that originally the case was before the IVth City Magistrate and it was transferred on administrative grounds to the Railway Magistrate. As a consequence of the order impugned before me the case merely goes back to the IVth City Magistrate from whom it was transferred to the Railway Magistrate. No particular fact is pleaded before me showing that any injury will be caused if the case is tried by the IVth City Magistrate. I therefore do not find any strength in the argument advanced in this regard.

17. It was finally submitted that the ground on which the case is transferred is not adequate. I cannot give any effect to this argument also. The learned Judge found that the Railway Magistrate is not acquainted with the Hindi language and as considerable portion of the evidence would be in Hindi, he thought it desirable in the ends of justice to transfer the case to the IVth City Magistrate who happens to know the language. In Mohamed v. All Raza, AIR 1015 AH 50 a similar question had arisen. It was observed by Tudball. J., that

'where in a case there is a good deal of evidence (both oral and documentary) in English and the Magistrate in whose Court the case is pending does not know English, it may be necessary, and perhaps advisable, to transfer the case to some Magistrate who knows that language'.

In any case it is a matter of discretion with thelearned Judge to transfer a case and unless it isshown to the High Court that the grave injustice is caused, ordinarily this Court will not interfere in the exercise of an undoubted discretion.It is not shown that this discretion has beenused in an improper way. The order of thecase, therefore, in my opinion, must stand. Forthe reasons, I have given, this Crl. M. P. mustbe dismissed.


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