SESH NARAYAN BAJPAI Vs. STATE OF M P

JUDGEMENT

(1.) This petition raises a question of general importance as to scope of Section 10 (3) of the Criminal Procedure Code, 1973 and the right and jurisdiction of Sessions Judge in a given Sessions Division to transfer applications to another Additional Sessions Judge for disposal. The matter arises thus:

(2.) Mandla is a Sessions Division with headquarters at Mandla. The Sessions Judge sits at Mandla where one more Additional Sessions Judge functions. Recently, an AddI. Sessions Judge has also been posted at Dindori which is a Tahsil place within the jurisdiction of Sessions Division Mandla. By office order dated 7-7-1989, the Sessions Judge, Mandla, in exercise of powers under Section 10(3) of the Criminal Procedure Code, 1973, directed that the bail applications and also applications for grant of interim stay arising out of the cases in Revenue Tahsil Dindori shall be filed before the Additional Sessions Judge, Dindori. After those applications are heard the cases be sent to Mandla for registration. The relevant part of the order reads as under: Dindori Rajaswa Tahsil main utpann atyavashk jamanat aavedan, sthgan aadesh ka prastutikaran is nyayalay ke atirikt satra nyalaya Dindori ke nyalaya main kiya javega jahan per sunvai ki javegi aese prakrano ko panjibadh kerne avam anya karyavahi hetu mandla satra nyayalay ko preshit kiye javaingai. The petitioner, who is an advocate practising at Mandla, questions the propriety and legality of this order and his contention is that Section 10(3) of the Code does not admit of such a course. Section 10(3) of the Criminal Procedure Code may now, therefore, be quoted: T110.Subordination of Assistant Sessions Judges: (3) The Sessions Judge may also make provision for the disposal of any urgent application, in the event of his absence or inability to act by an Additional or Assistant Sessions Judge, or, if there be no Additional or Assistant Sessions Judge, by the Chief Judicial Magistrate, and every such Judge or Magistrate shall be deemed to have jurisdiction to deal with any such application. 2. The petitioner, who addressed the Court himself, contends that in exercise of powers under Section 10(3) of Code, Sessions Judge can make over only urgent applications to an Additional Sessions Judge and that too when the Sessions Judge is either absent from the Sessions division or incapable of working. Since the impugned office order is in general terms and requires all bait applications and applications for staying certain orders of sentence to be filed before the Additional Sessions Judge, Dindori, says the petitioner, that order is beyond the scope of Section 10 (3) of the Code.

(3.) Section 6 of the Code provides that in every State, among others, there shall be Courts of Session. Section 9 then requires the State Government to establish a Court of Sessions for every sessions division. This Court of Session shall be presided by a Judge to be appointed by the High Court. He shall be the Sessions Judge of that sessions divisions. Sessions Judge of one sessions division can also be appointed as AddI. Sessions Judge of another division. In addition, the High Court may also appoint Additional Sessions Judges and Assistant Sessions Judges to exercise jurisdiction in a Court of session. In the event of the office of Sessions Judge being vacant, subsection (5) of Section 9 of the Code permits the High Court to make arrangements for disposal of any urgent application, which is, or may be made or pending before the Courts of Session by an Additional or Assistant Sessions Judge, or if there be no Additional or Assistant Sessions Judge, by a Chief Judicial Magistrate, in the sessions division. Since we are dealing with an order making arrangement for disposal of applications for grant of bail as also stay orders, it will be useful, only at this juncture to refer to the provisions in the Code relating to bail and bonds and stay orders. Chapter XXXIII of the Code which includes Sections 437, 438 and 439 contains provisions as to bail and bonds. Section 437 is attracted when a person accused of, or suspected of, the commission of any non-bailable offence is arrested or detained without warrant by an officer-in-charge of a police station or appears or is brought before a Court other than the High Court or Court of Session. Thus, Section 437 is in-applicable when a person appears or is brought before the Court of Session. Section 438 confers power on the High Court or on the Court of sessions to release any person on bail in the event of his arrest on accusation of having committed a non-bailable offence. Similarly, the High Court or the Court of Session may also direct release of a person accused of an offence and in custody, if the offence is of the nature specified in sub-section (3) of Section 437, i.e., when the person is accused or suspected of the commission of an offence which is punishable with imprisonment extending to seven years or more or of an offence under Chapter VI, Chapter XVI, or Chapter XVII of Indian Penal Code or abetment of, or conspiracy or attempt to commit, any such offence. Significantly, Chapter XXXIII, makes no express provision relating to powers of Additional Sessions Judge or Assistant Sessions Judge for grant or cancellation of bail. Therefore, the expression Court of Sessions appearing in Sections 437, 438 and 439 shall mean the Court of Sessions presided over by Sessions Judge. In this regard, we share the view of Rajasthan High Court, as expressed in Rajesh Choudhary v. State of Rajasthan1. The Additional Sessions Judges and Assistant Sessions Judges will thus be no Court of Sessions but will exercise limited jurisdiction conferred on them by various other provisions. The jurisdiction of the Additional Sessions Judges and Assistant Sessions Judges is thus narrower. They will exercise such jurisdiction over cases which are transferred to them by Sessions Judge. One of such instances may be found under Section 194 which confers jurisdiction upon Additional Sessions Judges and Assistant Sessions Judges to try only those cases which have been transferred to them to be tried by the Court of Sessions. Similarly, under Section 381, the Additional Sessions Judges and Assistant Sessions Judges shall hear only those appeals as are made over to them by the Sessions Judge. Additional Sessions Judges will exercise all powers of Sessions Judge under Chapter XXX in respect of cases which have been transferred to him (Section 400). The cases so made over can even be called back by the Sessions Judge.