- (1.) A session case against the opposite parties was made over to Shri P. Dutta, Additional Sessions Judge, for trial. After he had examined several witnesses, he cancelled the bail of the opposite parties. They were taken into custody. They applied before the learned Sessions Judge for transfer of the case from the file of Shri P. Dutta, Additional Sessions Judge to some other court. The learned Sessions Judge by his order No. 4 dated 19.8.72 had allowed the prayer and transferred the case "from the 4th Court of Additional Sessions Judge for disposal". The State through its Superintendent and Rememebrancer of Legal Affairs has moved this Court challenging the legality of that order.
(2.) The application on which the learned Sessions Judge has made this order of transfer was filed under section 526(1A) of the Code of Criminal Procedure. Under section 528(1C) of the Code a Sessions Judge, on an application made to him to transfer, may order that any particular case be transferred from "one Criminal Court to another Criminal Court" in the same sessions divisions if he is of opinion that it is expedient for the ends of justice. Sub-section (1A) of section 528 says that at any time before the trial of the case has commenced before the additional Sessions Judge, may recall any case which he has made over to any Additional Sessions Judge under section 193(2) of the Code. In this case, trial commenced and proceeded for some time before Shri P. Dutta, Additional Sessions Judge. The learned Sessions Judge was not, therefore, right in ordering transfer of the case from his file to the file of another Additional Sessions Judge in disregard to the provisions of Sub-section (1A) of Section 528. Sub-section (1C) provides for transfer by a Sessions Judge of a case from one "Criminal Court". In a Sessions division, there is only one Criminal Court in respect of one criminal case at one point of time. As there cannot be more than one Criminal Court in respect of a sessions case in one sessions division, it was not possible for the Sessions Judge to transfer a sessions Judge to transfer a session case from the court of an Additional Sessions Judge to the Court of another Additional Sessions Judge. Reference may conveniently be made to section 9 of the Code of Criminal Procedure. Under sub-section (1) of section 9, the State Government shall establish a Court of Session for every sections division, and appoint a Judge of such Court. Under sub-section (3) of that section, the State Government may also appoint Additional Sessions Judge and Assistant Sessions Judges to 'exercise' jurisdiction in one or more such Courts. Additional Sessions Judge an Assistant Sessions Judge, so appointed, exercise jurisdiction in that Court only when cases are made over to them under section 193(2) and section 438(2) of the Code. It is because of this bar that special provisions have been made in sub-sections (1) and (1A) of section 528 for recall of cases from the file of Additional Sessions Judge or Assistant Sessions Judge for being made over to another and a bar is put under sub-section (1A) to the exercise of such powers. Once a trial commences the Sessions Judge has not the power to recall any case made over to an Additional Sessions Judge under sub-section (1C). In this view of the matter, the order of the Sessions Judge cannot stand.
(3.) If sub-section (1C) is read as empowering the Sessions Judge to transfer a case from the file of an Additional Sessions Judge or Assistant Sessions Judge on the view that they are also separate Criminal Courts in the same Sessions divisions in respect of the same case, then there would not perhaps have been any necessity for making special provisions of sub-section (1) and (1A) of that section. When there are general provisions and special provisions in respect of the same matter, the special provisions will be given effect to or prevail. In any view, the order of the learned Sessions Judge is wrong.;