- (1.) The petitioner has filed this petition to seek transfer of the case which was pending before Sh.Manjinder Singh, Addl. Sessions Judge, Hoshiarpur, to any other Court in the interest of justice. Earlier, the petitioner had filed an application before Sessions Judge, Hoshiarpur for transfer of this case to any other Court at Hoshiarpur. Accepting the prayer, the Sessions Judge, had transferred the Case to the Court of Sh.J.S.Bhinder, Addl. Sessions Judge, Hoshiarpur for trial and disposal in accordance with law. Parties were directed to appear before the Court of Sh.J.S.Bhinder, on 21.02.2012.
(2.) The case was then listed before Sh.J.S.Bhinder, Addl. Sessions Judge, Hoshiarpur, who vide order dated 26.03.2012 sent the case back to Sessions Judge, Hoshiarpur, stating that the same appears to have been transferred inadvertently. Apparently, the Court was of the view that after commencement of the trial the case could not have been transferred and this could only be done by High Court. Sessions Judge, Hoshiarpur thereafter observed that the case was transferred inadvertently to the Court of Sh.J.S.Bhinder, Addl. Sessions Judge, Hoshiarpur and has given liberty to the petitioner to move before the appropriate forum for transfer of this case. It is in this background that the petitioner has now filed this petition for transfer of this case.
(3.) Sessions Judge, Hoshiarpur as well as Addl. Sessions Judge, apparently have not properly considered the legal position as would emerge from Sections 408 and 409 Cr.P.C. The orders have been passed by both the officers by just observing that the order of transfer was inadvertently passed. Apparently, both the Courts are of the view that case cannot be transferred by a Sessions Judge after commencement of the trial. This issue recently arose before this Court and has been dealt with in detail while deciding Criminal Misc.No.M-2621 of 2012 (Kamaldeen versus State of Punjab) on 03.04.2012. After making reference to various judgments, it is viewed in Kamaldeen's case that Sessions exercise judicial power under Section 408 Cr.P.C. and can transfer cases in the same session division even after commencement of the trial. The relevant observations are as under:- "In view of the detailed discussion above, the view expressed by Full Bench of Allahabad High Court, which has subsequently been followed by a Division Bench of Madhya Pradesh High Court and also by Division Bench of Kerala High Court and a Single Judge of Delhi High Court clearly is reflecting a correct view of law. If the power of the Sessions Judge is curtailed to transfer cases after the commencement of the case or appeal as given under Section 409, then the provisions of Section 408 would become redundant. There was no purpose then to legislate this section. The reason for which the case can be transferred under Section 408 Cr.P.C. is the exigency for the ends of justice or on the report of the lower court or on an application of interested party or on his own initiative. No such requirement would arise while invoking the jurisdiction and power under Section 409 Cr.P.C., which is an administrative power of transfer of a case or appeal. Such powers apparently were necessary when viewed in the background that it is the Sessions Judge who is to make over the cases to Additional and Assistant Sessions Judges and they can try only those cases which are made over to them by the Sessions Judge in this manner. Obviously, if he had the power to assign cases or the appeals to Additional and Assistant Sessions Judges, he obviously would have power to withdraw those cases and this is reiterated in Section 409 Cr.P.C. which is for better administration of criminal justice. In addition, a provision has also been made entitling the Sessions Judge to exercise judicial power to transfer case or appeal at any stage if the requirement of Section 408 Cr.P.C. is satisfied. Section 409, therefore, apparently does not control Section 408 in any manner. The reasons and the purpose and the requirement for exercise of powers being clearly different and defined, it would not, therefore, be fair to read the restrictions contained in Section 409 Cr.P.C. into the provisions of Section 408 Cr.P.C. which are clearly independent of each other. In the passing, it may also need to be observed that a party perhaps would be in a position and entitled to move application for transfer of a case only under Section 408 Cr.P.C., whereas may not have much say while the Sessions Judge in exercise of his administrative power may transfer or withdraw any case from any particular court of Additional or Assistant Sessions Judge. Since this court has not found any viable reasons to transfer this case on the basis of allegations made, no useful purpose would be served by sending the case back to the Sessions Court for fresh decision, but the view expressed by the Sessions Judge that the application was not maintainable cannot be accepted as a correct view of law. The same cannot be accepted as sustainable in laws.";