BERI, J. - (1.) THE Sessions Judge, Pali by his order dated the 24th June, 1969, in a transfer application under sec. 528 of the Code of Criminal Procedure, rejected the preliminary objection raised by the applicants Bhabutmal and 9 others before me that he had no power to entertain the transfer application in a case pending before the Additional Sessions Judge, Sirohi. It is against that order that the applicants have submitted this application by way of revision.
(2.) ON a report made by Chhogaram to the police and investigated by the Station House Officer, Pali, the police launched a case under sec, 302, 147, etc. I. P. G. before the Munsiff-Magistrate, Pali. After an inquiry under sec. 207-A Cr. P. C. he committed the 10 applicants before me for trial before thee Additional Session Judge, Sirohi. After posted the case for prosecution evidence after recording the plea of the accused, Chhogram the complainant in this case moved an application on 24-10-1969 under sec. 528 of the Code of Criminal Procedure in the court of the Sessions Judge, Pali for the transfer of the case from the court of the Additional Sessions Judge, Sirohi to some other court on several grounds. An objection was raised before the Sessions Judge that he had no jurisdiction to entertain a transfer application regarding a sessions case which the learned Additional Sessions Judge was trying in exercise of the jurisdiction conferred upon him under sec. 9 (3) of the Code of Criminal Procedure and Chhogaram had no locus standi to make the transfer application as the prosecution was launched by the State. The learned Sessions Judge rejected both these contentions and, therefore, the petitioners have come up to this Court. Mr. V. S. Dave appearing for the petitioners referred to sec 6, 9 (3) and 193 of the Code of Criminal Procedure and urged that an Additional Judge fell in the category of a Sessions Court and it is only before a trial of a case and the hearing of an appeal had commenced that under sec. 528 ( 1-A) a Sessions Judge may recall any case or appeal which he has made over to any Additional Sessions Judge. The learned counsel on the basis of the aforesaid provisions argued that as the trial had commenced before the learned Additional Sessions Judge, Sirohi even though Sirohi was in the Sessions Division of the Session Court, Pali, the learned Sessions Judge could not recall or transfer the case against the petitioners from his court and the application for transfer only lay before the High Court. Mr. Dave did not challenge the point that Chhogalal could not apply for the transfer. Mr. B. C. Chatterjee, the learned Additional Advocate General argued that the case was covered by sec. 528 (1-C) which authorises any Sessions Judge to transfer any particular case from one criminal court to another criminal court in the same Sessions Division if it is expedient for the ends of justice. He, therefore, supports the order of the learned Sessions Judge, Pali. This interesting question will have to be decided on an interpretation of the relevant, statutory provisions as no are far decided has been brought to my notice which might be of assistance. Sec. 6 reads as follows - "6. Besides the High Court and the Courts constituted under any law other than this Code for the time being in force, there shall be five classes of Criminal Courts in India, namely: I - Courts of Session: II.- Presidency Magistrates: III.- Magistrates of first class: IV.- Magistrates of the second class: V.- Magistrates of the third class. Sec. 6 creates five classes of criminal courts besides the High Court. The first is the Courts of Session. Sec. 9 lays down that the State Government shall establish a Court of Session for every Sessions Division and appoint a Judge for that Court. Thus in every Sessions Division there shall be a Judge of the Sessions Court. Sub-sec. (3) and (4) of sec. 9 read as follows - "9. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (3) The State Government may also appoint Additional Sessions Judges and Assistant Sessions Judges to exercise jurisdiction in one or more such Courts. (4) A Sessions Judge of one session division may be appointed by the State Government to be also an Additional Sessions Judge of another division, and in such case he may sit for the disposal of cases at such place or places in either division as the State Government may direct. Sub-sec. (3), therefore, authorises the creation of the court of Additional Sessions Judge. Sub-section (1) of sec. 193 Cr. P. C. precludes a Court of Session from taking 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. Sub-sec. (2) reads, "193. (2) 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. " This sub-section provides for the sources from which the work is to reach Additional Sessions Judges and Assistant Sessions Judges. The relevant provisions of sec. 528 Cr. P. C. read as follows - "528 (1) (1-A) At any time before the trial of the case or the hearing of the appeal has commenced before the Additional Sessions Judge, any Sessions Judge may recall any case or appeal which he has made over to any Additional Sessions Judge. (1-B) Where a Sessions Judge withdraws or recalls a case or appeal under sub-Sec. (1) or sub-sec. (1-A), he may either try the case in his own Court or hear the appeal himself, or make it over in accordance with the provisions of this Code to another Court for trial or hearing, as the case may be. (1-C) Any Sessions Judge, on an application made to him in this behalf, may, if he is of opinion that it is expedient for the ends of justice, order that particular case be transferred from one Criminal Court to another Criminal Court in the same Sessions division. " It will be profitable to remember that sec. (1-A) and (1-B) to sec. 528 Cr. P. C. were added by Act III of 1946 and sec. (1-C) was inserted by Act XXVI of 1955. The contention of Mr. Dave is that the only authority which has been conferred by sec. 528 (1-A) is to recall any case or appeal which a Sessions Judge had himself made over to any Additional Sessions Judge and that too before the trial of the case or the hearing of the appeal has commenced. In other words his contention is that before a Sessions Judge can recall a case from the court of the Additional Sessions Judge it must in the first instance be a case which the Sessions Judge has himself made it over to the Additional Sessions Judge and secondly, it is before the stage of commencement of the hearing of the case or the appeal that he could recall it. Beyond this the Sessions Judge has no power to recall cases which reach an Addl. Sessions Judge. The emphasis laid by the learned Addl. Advocate General is on the powers contemplated by sub-sec. (1-C) of sec. 528, which is not circumscribed either by the stage of the case or influenced by the consideration of the source from which the case has reached the court of the Addl. Sessions Judge for hearing. In my opinion the plain language of S. 528 (1-C) authorises a Sessions Judge on an application made to him in this behalf to transfer from one criminal court to another criminal court in the same Sessions Division a particular case if he is of the opinion that it is expedient for the ends of justice to do so, The exercise of this power is dependent on the conditions, firstly, that the case must be in his Sessions Division, secondly, that it must be expedient for the ends of justice to transfer such case and an application has been made for such purpose. On fulfilment of these conditions a Sessions Judge can transfer any particular case to another criminal court in his own Sessions Division. It has not been disputed, and it cannot be disputed, that the Court of an Additional Sessions Judge is a criminal court. The Additional Sessions Judge, Sirohi is a criminal court within the Sessions Division of Pali and an application for transfer had been made to the Sessions Judge, Pali for transfer of the case on the ground that it is expedient for the ends of justice to do so. All the conditions contemplated by sec. 528 (1-C) thus stand fulfilled. The argument against this construction is that a Sessions Judge and an Additional Sessions Judge in a given case may be exercising concurrent jurisdiction one being not subordinate to another, and therefore such a transfer would create an anomaly. It would be noticed that the power vested by sub-sec. (1-C) of sec. 528 does not provide that it shall be exercised by a Sessions Judge only in regard to cases pending in Criminal Courts subordinate to a Sessions Judge but to all criminal courts in his division. The intention of the legislature seems to be as gathered from the plain language of sec. 528 (1 -C) that within a Sessions Division for the ends of justice the Sessions Judge has the power to transfer a case from one criminal court to another regardless of the fact whether the court from which the case is sought to be transferred is sub-ordinate to the Sessions Judge or not. Sub-secs. (1-A) and (1-B) of sec. 528 advisedly employ the word "recall" as distinguished from the word "transfer" used in sec. 528 (1-C ). A case can be recalled under sec. 528 (1-A) but that must be a case or an appeal which has been made over by the Sessions Judge to the Additional Sessions Judge. The word "recall" is indicative of the sense of calling back. Its grammatical meaning is "to call back ; to bid return". (See Websters New 20th Century Dictionary, p. 1503 ). The word "transfer" indicates a different power which sec. 528 (1-C) confers on a Sessions Judge. The plain grammatical meaning of the word "transfer" is "to convey, carry, remove or send from one place, person or position to another". See Websters New 20th Century Dictionary, p. 1938 ). When sec. 528,1-C) is read in light of sec. 526 (1-A) which provides that notwithstanding anything contained in sub-sec. (1), no application shall lie to the High Court for the exercise of its powers under the said sub-section for transferring any criminal case from one Criminal Court to another Criminal Court in the same sessions division, unless an application for such transfer has been made to the Sessions Judge and rejected by him, it reinforces my interpretation that a Sessions Judge must be moved in the first instance if the case is sought to be transferred from one criminal court to another criminal court in the same Sessions Division. Both sec. 526 (1-A) and 528 (1-C) were inserted by the amending Act No. XXVI of 1955 and they are in harmony with one another. Therefore in 1955 when the Criminal Procedure Code was amended the object sought to be achieved by inserting these two amendments in secs. 526 and 528 was that when a transfer of a criminal case from one criminal court to another criminal court in the same Sessions Division was sought on the ground that it was expedient for the ends of justice to do so then such an application must in the first instance be made before the Sessions Judge and not directly to the High Court. The learned Sessions Judge, Pali was right in rejecting the preliminary objection raised by the petitioners before him. This revision application fails and is dismissed. . ;