1. This Court has jurisdiction to hear this case as per order of the Session Judge, Rajkot.
Aggrieved by that order the petitioners have presented this application for transfer of the case back to the Sessions Court at Rajkot. The application was later on amended and was allowed to be treated as one under Article 226 of the Constitution of India. The prayer made by the petitioners in substance is that the case be sent back to the Court, viz., the Sessions Court at Rajkot which was directed to try that case under the orders of this High Court.
2. The contention made out by Mr. Hathi, the learned advocate for the petitioners, is that on a plain reading of the order passed by the High Court, it admits of no scope for the learned Sessions Judge to transfer the case to the Court at Gondal and that, according to him, it was transferred to the Covirt at Rajkot meaning thereby that the case was to be tried by that Court at Rajkot. As against that, it was urged by Mr. Sompura, the learned Govt. Pleader, that the case was transferred to the Sessions Court at Rajkot and it says nowhere that it should be tried personally by the Sessions Judge himself and that again at Rajkot. It was, besides, pointed out that while passing the order in the transfer application, the High Court had seen no objection on any ground to have the trial of the petitioners at Gondal. The case was not transferred on the ground of inconvenience to the parties at Rajkot. The transfer was occasioned on account of some grievance against the learned Additional Sessions Judge and once that Judge was no longer at Gondal, the other Judge who succeeded him would be the proper Court to whom the Sessions Judge in exercise of his powers under Section 193 of the Criminal Procedure Code can administratively transfer the case.
3. Now it was under Section 526 (1)(e) that this Court had passed an order of transferring the case from the Court at Gondal to that of the Sessions Court at Rajkot. The relevant provision of Section 526 runs thus:
526. (1) Whenever it is made to appear to the High Court-
xx xx xx xx(e) that such an order is expedient for the ends of justice or is required by any provision of this Code; it may order-
(i) xx xx xx xx(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;
We are concerned with the final operative order passed by the Court and it makes it in the first place clear that the case was transferred to Sessions Court at Rajkot. At that time there was no other Sessions Court such as Additional Sessions Judge's or Assistant Sessions Judge's Court at Rajkot, that any specific order was at all required. If it was intended otherwise, some directions in the order would have been given. Since Mr. D. K. Shah was already at Gondal then place of trial at Gondal was out of consideration and the order, therefore, appears to have been intended to have the trial of the case at Rajkot and that too by the Sessions Court.
4. Apart from that, Section 526(1)(e)(ii) contemplates that such a case can be transferred from a Criminal Court subordinate to its authority to any other such Criminal Court of equal or superior jurisdiction. In other words, the High Court by passing an order of transfer under Section 526(1) of the Criminal P.C. could transfer the case from a Criminal Court subordinate to its authority to any other such Criminal Court of equal or superior jurisdiction. In other words, the Court to which the case could be transferred must be the Court having equal or superior jurisdiction to that of the Court from which it came to be transferred. Now Mr. D.K. Shah was having the powers of an Additional Sessions Judge whereas Mr. Patel who succeeded him at Gondal later on, possesses only the powers of an Assistant Sessions Judge and not that of an Additional Sessions Judge. Mr. Patel's Court cannot, therefore, be said to be a Court of equal or superior jurisdiction to that of the Court of Mr. Shah at Gondal. The difference in two Courts is clear in the sense that the latter Court can try cases of any kind under the Indian Penal Code even though punishable with death or imprisonment for life, whereas the former Court of Assistant Sessions Judge has limited powers and that way can try such cases only which are punishable with not more than seven years' imprisonment. While the appeal against the decision of Asst. Sessions Judge would go to the Sessions Judge of the division, that against the order passed by the Additional Sessions Judge would have to be preferred only to the High Court direct. It, therefore, follows that the High Court by itself could not have transferred the case to any other Court of an Assistant Sessions Judge having lesser powers than that of an Additional Sessions Judge from whom that case was transferred, and when that is so, even if for a moment it was conceded that the Sessions Judge has powers under Section 193 of the Criminal Procedure Code to transfer any such case by passing an administrative order to a subordinate Court, he could not have done so, for in doing so, he would be doing a thing which the High Court could not have done which passing orders on the transfer application. The orders under Section 193 of the Criminal Procedure Code have to be passed subject to the provision.1 of the Code, i.e., subject to the orders passed by the High Court in its jurisdiction under Section 526 (1) of the Code.
5. Section 193 of the Criminal Procedure Code was referred to by Mr. Sompura in support of the argument that once the case was sent to the Sessions Court at Rajkot, he was seized of the matter and he could by any general or special order contemplated under Section 193(2) of the Code, make over such a ease to the Assistant Judge at Gondal for trial. He also urged that there were no limitations put in exercise of such powers by the Sessions Judge. Now Section 193 provides as under:
193. (1) Except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Session shall take cognizance 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.
(2) Additional Sessions Judges and Assistant Sessions Judges shall try such cases only as the State Government in consultation with the High Court 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.
It was in this connection urged by reference to a decision in the case of Lakshman Chavil Nerangikar v. Emperor AIR 1931 Bombay 313, where it has been held that the Assistant Sessions Judge, the Additional Sessions Judge and the Sessions Judge, exercise co-ordinate or equal jurisdiction of a Sessions Court within the limits of the authority conferred on them by the Code, but are nevertheless different Courts each subordinate to the High Court. In the first place, the power to pass over any case for trial to the Additional Sessions judge or Assistant Sessions Judge in the Sessions division by the Sessions Judge would be in respect of cases committed to it by a Magistrate duly empowered in that behalf. The Sessions Judge at Rajkot was not seized of the case as one being committed to his Court at the relevant time when he happened to transfer the case to the Court of Assistant Sessions Judge at Gondal. He was seized of the case not by reason of the case being committed to his Court, but by reason of an order of transfer passed by the High Court itself under Section 526(1) of the Criminal Procedure Code. His duty was, therefore, to comply with the order passed by the High Court, and to exercise any such powers under Section 193 would be tantamount to overriding the orders passed by the High Court or, at any rate, passing such orders which would be inconsistent with the orders that were and can be passed by the High Court in any such manner. Besides, he can pass orders subject to the provisions of the Code which include any orders passed by a superior Court under Section 526(1) of the Code. His powers were, therefore, limited to that extent, while passing orders under Section 193 of the Criminal Procedure Code. While it may no doubt be so that the Assistant Sessions Judge and Additional Sessions Judge may exercise coordinate or equal jurisdiction of a Sessions Court, but that is subject to the limits of the authority conferred on them by the Code. What is material is the limits of authority conferred on them that makes the difference in the circumstances of this case. While an Assistant Sessions Judge can try a Sessions case, but that case could only be tried provided it comes within the limits of the authority conferred on him by the provisions of the Code. In our view, therefore, the order appears to be clear enough to convey that it' was the Court of the Sessions Judge at Rajkot that was directed to try the ease, The learned Sessions Judge cannot, therefore, exercise powers under Section 193 for the transfer of the case to the Assistant Sessions Judge at Gondal, and no such administrative order can override or set at naught the order passed by the High Court. That order is, therefore, liable to be set aside.
6. We, therefore, set aside the order passed by the learned Assistant Sessions Judge, We also hold that the order of transfer of the case passed by the Sessions Judge at Rajkot is beyond his authority and competence and is, therefore, illegal and inoperative. The case shall, therefore, go back to the Court of Sessions Judge at Rajkot who shall himself try the same. No order as to costs.
7. No order on Criminal Appln. No. 272 of 1967.