ORDER
R.V. Raveendran, C.J.
1. The District & Sessions Judge, Raisen has forwarded a list of part-heard cases pending on the file of the Fast Track Court, Raisen, with a request to transfer them to some other Court, as the Presiding Officer of that Court has resigned from the post and no other Judicial Officer has been appointed in his place.
2. We find that there are divergent views of learned Single Judges in regard to the power of the Sessions Judge to recall and make over the cases to some other Additional Sessions Judge in such a situation. One view is that a part-heard Sessions Trial pending in the Court of an Additional Sessions judge can be transferred to another Additional Sessions Judge in the same Sessions Division only by the High Court in exercise of powers under Section 407(1) of the Code of Criminal Procedure, 1973 (for short 'the Code') and not by the Sessions Judge in exercise of powers of transfer under Section 408 of the Code (vide order dated 5-3-2002 in M.Cr.C. No. 1242/2002, in Ref. by District and Sessions Judge, Jabalpur). Another view is that where the Court of Additional Sessions Judge becomes vacant, the Sessions Judge may transfer the part-heard cases to another Additional Sessions Judge in exercise of power under Section 409(2) of the Code (vide order dated 2940-2002 in M.Cr.C No. 3417 of 2002 in Ref. by District and Sessions Judge, Guna). In view of the conflicting views, the following two points arise for our consideration :
(i) Whether the power under Sub-section (1) of Section 408 can be exercised by the Sessions Judge to transfer a case from one Additional Sessions Judge to another Additional Sessions Judge in his Sessions Division, even if the trial has commenced ?
(ii) Whether Sub-section (2) of Section 409 bars a Sessions Judge from recalling any case which he had made over to an Additional Sessions Judge, where the trial has commenced, even in the event of transfer, retirement or death of such Additional Sessions Judge ?
3. We may refer to the relevant provisions of the Code, before considering the two questions.
3.1. Chapter XXXI of the Code, containing Sections 406 to 412, deals with Transfer of Criminal Cases. Section 407 of the Code deals with power of High Court to transfer cases and appeals. Sub-section (1) (ii) of Section 407 provides that whenever it is made to appear to the High Court that an order under the section will tend to the general convenience of the parties or witnesses or is expedient for the ends of justice, it may order 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. Sub-section (2) of Section 407 provides that the High Court may act [in exercising the power under sub- section (1) of Section 407] either on the report of the Lower Court, or on the application of a party interested, or on its own initiative. The Proviso to Sub-section (2) however provides that no application shall lie to the High Court for transferring a 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.
3.2. Section 408 of the Code deals with the powers of Sessions Judge to transfer cases and appeals. Sub-section (1) of Section 408 provides that whenever it is made to appear to a Sessions Judge that an order under that sub section is expedient for the ends of justice, he may order that any particular case be transferred from one Criminal Court to another Criminal Court is his Sessions Division. Sub-section (2) provides that the Sessions Judge may act either on the report of the Lower Court, or on the application of a party interested, or on his own initiative.
3.3. Section 194 of the Code provides that an Additional Sessions Judge or Assistant Sessions Judge shall try such cases as the Sessions Judge of the division may, by general or special order, make over to him for trial, or as the High Court may, by special order direct him to try.
3.4. Section 409 of the Code deals with withdrawal of cases and appeals by Sessions Judges. Sub-section (1) provides that a Sessions Judge may withdraw any case or appeal from, or recall any case or appeal which has been made over to, any Assistant Sessions Judge or Chief Judicial Magistrate sub-or-dinate to him. Sub-section (2) provides that 'at any time before the trial of the case or the hearing of the appeal has commenced before the Additional Sessions Judge, a Sessions Judge may recall any case or appeal which he has made over to any Additional Sessions Judge'. Sub-section (3) of Section 409 provides that where the Sessions Judge withdraws or recalls a case or appeal under subsection (1) or Sub-section (2), 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 the Code to another Court for trial or hearing, as the case may be.
Point (i) re : Scope of Section 408(1) of the Code :
4. In Deepchand v. State of M.P., [1998 (2) MPLJ 670], a learned Single Judge of this Court explained the difference between exercise of jurisdiction under Section 408 and Section 409 of the Code thus :-
'6. Both these Sections are different in their scope. While Section 408 relates to transfer of a case from one Criminal Court to another Criminal Court within the same Sessions Division, Section 409 empowers the Sessions Judge subject to the limitation contained in Sub-section (2), to withdraw any case or appeal which he had made over to any Additional Sessions Judge, Assistant Sessions Judge or Chief Judicial Magistrate and either to try/hear the case/appeal himself or make it over to another Court for trial/hearing. These provisions are clearly intended to deal with two different situations. Section 409 obviously deals with a case or an appeal which though originally instituted in the Court of Sessions, has been made over by the Sessions Judge to an Additional Sessions Judge or Assistant Sessions Judge or Chief Judicial Magistrate and which in the opinion of the Sessions Judge is, for any reason administrative or judicial, required to be tried or heard either by himself or by some other Court. Transfers of all other cases from one Criminal Court to another Criminal Court in the same Sessions Division are to be regulated by Section 408.
The Additional Sessions Judge or Assistant Sessions Judge does not constitute a separate Court but as provided by Section 9 of the Code, they exercise jurisdiction in the Sessions Court itself which is presided over by a Sessions Judge. They can only try such cases and hear such appeals as may be made over to them by general or a special order, by the Sessions Judge. So transfer of any such case or appeal from their file by the Sessions Judge can be made only under Section 409. Sub-section (2) of Section 409 deals with the withdrawal of cases from an Additional Sessions Judge and places a restriction that any such withdrawal can be made only before the trial of the case or hearing of appeal has commenced. Under the scheme of things, Section 408 has no application when transfer of a case is required to be made by the Sessions Judge from one Additional or Assistant Sessions Judge to another Additional or Assistant Sessions Judge in the same Sessions Division.'
5. In State of Kerala v. Reny George (1981 Criminal Law Journal 1352), the Kerala High Court took a similar view and held that power under Section 408 of the Code can not be invoked for the transfer of a Sessions case from an Additional Sessions Judge to a Court of Sessions as they are Courts of equal jurisdiction.
6. On the other hand, a difference view was taken by Delhi High Court in Avinash Chander v. The Stale (1983 Criminal Law Journal 595). It Was held :-
'I have not been able to quite see how, having once said that the Court of Addl. Sessions Judge is a Criminal Court, does it then cease to be so under Section 408, Cr.PC and limit the power of the Sessions Judge exercisable under that Section It is not possible by any principle of interpretation to have read Sub-section (1A) as a proviso or qualification to the powers available under Sub-section (1C) of Section 528 (of the old Code). The new Code has split Section 528 into Section 408 [old Section 528 (1C)] and Section 409 fold Section 526 (1A)]. That can not be and is not without any significance. Section 408 is the general power to be exercised for the ends of justice while Section 409 provides for a power more of an administrative nature given to the Sessions Judge or withdraw any case or appeal or appeal made over by him to the Addl. Sessions Judge.'
(Emphasis supplied)
7. The decision in Avinash Chanderwas followed by a Full Bench of the Allahabad High Court in Radhey Shyam v. State of U.P. (1984 Allahabad Law Journal 666). It was also held -
'It is necessary to point out that the power conferred on the Sessions Judge under Section 409(1), Cr.PC to withdraw any case or appeal from or recall any case or appeal which he had made over to an Assistant Sessions Judge or the Chief Judicial Magistrate subordinate to him, the power conferred on the Chief Judicial Magistrate under Section 410(1), Cr.PC to withdraw any case from or recall any case which he has made over to any Magistrate subordinate to him and to inquire into or try such case himself, or refer it for inquiry or trial to any other such Magistrate competent to inquire into or try the same, the power conferred on the Judicial Magistrate under Section 410(2), Cr.PC to recall any case made over by him under Sub-section (2) of Section 192, Cr.PC to any other Magistrate and to inquire into or try such case himself and the power conferred on District Magistrate or Sub-Divisional Magistrate under Section 11, Cr.PC to make over, for disposal, any proceeding which has been started before him, to any Magistrate subordinate to him and to withdraw any case from, or recall any case which he has made over to, any Magistrate subordinate to him, and dispose of such proceeding himself or refer it for disposal to any other Magistrate, are all administrative powers in connection with the distribution of business. These powers are distinct from the judicial power of transfer conferred on the High Court and the Sessions Judge to be exercised if expedient for the ends of justice.'
(Emphasis supplied)
8. Sections 406, 407 and 408 respectively relate to the power of Supreme Court, High Court and Sessions Judge to transfer cases and appeals. On the other hand, Sections 409, 410 (1) and (2) and 411 relate to withdrawal of cases or recalling of cases which had been made over by the Sessions Judge, Chief Judicial Magistrate, Judicial Magistrate and the Executive Magistrate, for being thereafter tried either by himself or being made over to another Court for trial. The clear contrast in the language employed by the Legislature in the two sets of section is indicative of the difference in the nature of the power conferred thereunder. We note below the differences :-
(i) Sections 406, 407 and 408 use the words 'whenever it is made to appear' while referring to the power of the Supreme Court, High Court or the Sessions Judge to transfer cases. Sections 409, 410 and 411 significantly do not use these words.
(ii) The captions of Sections 406, 407 and 408 speak of exercise of 'power' to transfer, whereas Sections 409, 410 and 411 do not speak of 'power' but merely refer to 'withdrawal' or 'recalling'.
(iii) Sections 406, 407 and 408 contemplate the 'power to transfer' being exercised on an application by a 'party interested' (Sections 407 and 408 also contemplate the 'power to transfer' being used on a report of the Lower Court or suo motu; and Section 406 contemplate the power of transfer being used on an application by the Attorney General). These Sections clearly imply a need for hearing before transfer. On the other hand, Sections 409, 410 and 411 contemplate exercise of the power of withdrawal/recalling cases in a routine manner in the day to day administration. They do not contemplate any hearing to the parties interested.
It is clear from the above that the power to be exercised under Sections 406, 407 and 408 is judicial power to be invoked and exercised in the manner stated therein. On the other hand, the power of withdrawing or recalling of cases under Sections 409, 410 and 411 is an administrative power, complementary to the administrative power of making over cases vested in the Chief Judicial Magistrate/Magistrate and the Sessions Judge under Sections 192 and 194 of the Code.
9. It is also clear that the power conferred in the Sessions Judge under Section 408 is on the same level as the power conferred in the High Court under Section 407 and the power under the two sections is identical (except for two matters which are not relevant for our purposes- the first is while the power of the High Court extends over all Criminal Courts sub-ordinate to its authority, the power of Sessions Judge is confined to Courts within its own Sessions Division; and the second is in regard to the limit of compensation awardable for frivolous applications). Therefore, if High Court has the power to transfer 'part-heard' cases under Section 407, the Sessions Court also will have the power to transfer 'part-heard cases', as the wording of the two sections are the same. In fact, Sub-section (2) of Section 407 places an embargo on an application for transfer being filed before the High Court unless an application for such transfer has been made to the Sessions Judge under Section 408 and rejected by him.
10. The view taken in Deepchand is that Section 409 deals with withdrawal/recalling of those matters originally instituted in the Court of Session and made over by the Sessions Judge to Additional Sessions Judge, Assistant Sessions Judge or Chief Judicial Magistrate, whereas Section 408 deals with transfer of other cases (which were not instituted in the Court of Sessions) from one Criminal Court to another. This would have the effect of restricting the term 'Criminal Court' used in Section 408 to only Criminal Courts other than Additional Sessions Judges and Assistant Sessions Judges. Such an interpretation is unwarranted. Section 6 of the Code classifies Criminal Courts as Courts of Sessions, Judicial Magistrates of the First Class/Metropolitan Magistrates, Judicial Magistrates of the Second Class and Executive Magistrates. When Section 408 states that a Sessions Judge may transfer a case from one Criminal Court to another Criminal Court in his Sessions Division, it would certainly include the Additional Sessions Judges and Assistant Sessions Judges also, as they fall under 'Courts of Sessions'. Therefore, there is no impediment for a Sessions Judge to transfer any case from the Court of any Additional Sessions Judge in his Sessions Division to any other Additional Sessions Judge in his Sessions Division. For exercise of power under Section 408, the question whether the trial has commenced in the case or not is irrelevant.
11. We arc, therefore, in respectful agreement with the view expressed by the Delhi High Court in Avinash Chander and the Allahabad High Court in Radhey Shyam and consequently over-rule the decision of the learned Single Judge of this Court in Deepchand. The first point is therefore answered in the affirmative.
Point (ii) re : Scope of Section 409(2) of the Code :
12. We will now consider the scope of the administrative power under Section 409(2) of the Code, which confers the power to recall any case or appeal which he had made over to an Additional Sessions Judge, at any time before the trial of the case or the hearing of the appeal has commenced before such Additional Sessions Judge. By implication, it is clear that a Sessions Judge, in exercise of the administrative power under Section 409(2) recall any case or appeal made over by him to an Additional Sessions Judge, once the trial of the case or hearing of the appeal has commenced. It is well settled that 'trial' of a Sessions case commences with the framing of the charge. But what is the position if the Additional Sessions Judge to whom the case has been made over and before whom the trial of the case or hearing of the appeal has commenced, is transferred to another Sessions Division or has retired from service before the completion of the trial ?
13. In Reference by District & Sessions Judge, Jabalpur (M.Cr.C. No. 1242 of 2002), a Single Judge (Narain Singh Azad, J.) while purporting to follow the decision in Deepchand, held that when a part-heard Sessions trial has to be transferred from the Court of one Additional Court of Sessions to the Court of another Additional Sessions Judge or Assistant Sessions Judge of the same division, Section 408 of the Code will have no application in view of the restriction placed by Sub-section (2) of Section 409 and, therefore, such cases can be transferred only by the High Court in exercise of powers under Section 407(1) of the Code. Another Single Judge has taken a similar view in the State of M.P. v. Raja [1994 (II) MPWN 18], by holding that even where the Presiding Officer is absent, the Sessions Judge will not have jurisdiction to recall a case where the trial has commenced, having regard to the bar under Section 409(2).
14. A different view was taken by R.B. Dixit, J., In Ref. by District & Sessions Judge, Guna (M.Cr.C. No. 3417 of 2002, decided on 29-10-2002). It was held :-
'It is true that the cases mentioned in the list of transferred cases, by learned Sessions Judge Guna, are made over cases and in view of the provisions contained in Sub-section (2) of Section 409 of Cr.PC said cases can not be transferred, if trial or hearing of the case has begun. However, the reasons assigned by learned Sessions Judge, are that such cases were transferred in view of the Court concerned remaining vacant due to transfer of the Presiding Officer. It is held in the case of Abdul Hamid v. State of U.P. (reported in 1982 A.Cr.C. 336 : 1982 Allahabad Law Journal 1448) and Virendra Singh v. Awadhesh Kumar, reported in 1983 (U.P.) Cr.L.R. 415 : 1984 Allahabad Law Journal 283) that part heard sessions cases can be transferred, where, the Court is vacant due to transfer of Presiding Officer or where the Presiding Officer is dead. In my opinion, in view of the said reason, assigned by learned Sessions Judge, that the part heard cases were transferred in view of the Court concerned remaining vacant in the absence of Presiding Officer, is sufficient reason to transfer such cases....'
15. In Abdul Hamid v. State of U.P. (1982 Allahabad Law Journal 1448), the scope and purpose of Section 409(2) was considered. It was held :-
'The intention of the Legislature seems to be that if a trial has been commenced by a particular Sessions Judge and is continuing before him, the case which is part heard by him may not be transferred by the Sessions Judge.
It is not a mere commencement of a trial but the commencement of it before a particular Sessions Judge which attracts the provisions of Sub-section (2) of Section 409. The provision does not merely say 'at any time before the trial of the case or the hearing of the appeal has commenced'; but states further that it is before the Additional Sessions Judge. This clearly contemplates the presence of the Addl. Sessions Judge to continue the case. If the particular Addl. Sessions Judge before whom the case had commenced has either been transferred outside the Sessions Division or has died, the restriction imposed by Sub-section (2) of Section 409 would not come into play.
Sub-section (2), Section 409 which deals with the power of the Sessions Judge to recall a case from the Court of an Additional Sessions Judge, by its first part, places a restriction on that power which otherwise is absolute. The second part of Sub-section (2) of Section 409 gives the power of recall to the Sessions Judge and states 'a Sessions Judge may recall a case at any time' which is hedged in by the restriction contained in the first part which states 'before the trial of the case or the hearing of the appeal has commenced before the Additional Sessions Judge'. The Sessions Judge thus can recall a case at any time before an Additional Sessions Judge has commenced the proceedings and is available to continue it. It is not only the commencement of the proceedings but the seizing of it by the Additional Sessions Judge which attracts the restriction contained in Sub-section (2). In the instant case, the Judge who commenced the proceedings died. His successor did not commence any proceeding. The Sessions Judge was thus fully competent to transfer the case to another Court.'
(Emphasis supplied)
16. The same view was reiterated in Virendra Singh v. Awdhesh Kumar (1984 Allahabad Law Journal 283) thus :-
'Since the beginning of June, 1983 the Sessions Trial is lying without further progress because the Presiding Officer of the Court of II Additional Sessions Judge has been transferred and his successor has not taken over. It appears that the Presiding Officer has been transferred to some other Sessions Division. In such eventuality the learned Sessions Judge could transfer the Sessions Trial, though a part heard one, to another Additional Sessions Judge for disposal according to law. This principle has been laid down in the decision in Abdul Hamid v. Slate (1982 All LJ 1448). Where the Presiding Officer has been shifted to another Court of Additional Sessions Judge in the same Sessions Division and is exercising Sessions power, he continues to have seisin of his part-heard Sessions Trial and he should continue the trial of such a case. This view finds support from the decision in Punjab Singh v. Stale of U.P, (1983) Cr.LJ 205) (All)....'
17. Legislative intent behind Section 409(2) is that where the trial of the case has commenced or hearing of an appeal has commenced (for convenience 'becomes part-heard'), the case or the appeal should be continued to be tried or heard by the same Judge before whom the trial of the case or hearing of the appeal has commenced and there should be no interference with the progress of the case or appeal and, therefore, the administrative power of recalling should not be exercised. This salutary principle is to ensure speedy trial and hearing. But when the Additional Sessions Judge trying the case retires or resigns or dies or is transferred out of the Sessions Division and the Court becomes vacant, the case or appeal ceases to be a part-heard case. A case or appeal can be said to be part-heard only when the trial of the case or hearing of the appeal is capable of being continued by the Judge before whom the trial or hearing has commenced. Where the Judge before whom the matter is part-heard, ceases to be a Judge or the Court falls vacant, the matter ceases to be part-heard matter before that Judge and the bar relating to recalling of part-heard matters, ceases to apply. It is clear from the context in which Sub-section (2) has been enacted, that it applies only to cases where trial of the case or hearing of the appeal has commenced before a particular Additional Sessions Judge and such Judge continues to preside over the same Court or continues in the same Sessions Division. If the Additional Sessions Judge is transferred to some other Sessions Division or ceases to be a Judge on account of resignation, retirement or death resulting in the Court becoming vacant, the restriction placed on the power under Sub-section (2) of Section 409 will cease to apply and as a consequence the Sessions Judge can recall the case or appeal under Section 409(2). But where the Additional Sessions Judge is transferred within the Sessions Division or is on leave or under suspension, the restriction over the administrative power under Section 409(2) may continue to exist.
18. We are, therefore, of the view that the decision rendered by Dixit, J. in M.Cr.C. No. 3417 of 2002, dated on 29-10-2002 states the correct position of law. Consequently, we over-rule the decision of Narain Singh Azad, J. rendered in M.Cr.C. No. 1242 of 2002 and the decision in Raja (1994 II MPWN 18).
19. In view of the above discussion, the position may be summarized thus :-
(a) A Sessions Judge in exercise of judicial power under Section 408 of the Code may transfer any case pending before any Criminal Court in his Sessions Division to any other Criminal Court in his Sessions Division. That would mean that he can transfer even those cases where the trial has commenced from one Additional Sessions Judge in his Sessions Division to another Additional Sessions Judge in his Sessions Division. The transfer of a case under Section 408 of the Code being in exercise of a judicial power, it should be preceded by a hearing to the parties interested. Further, the reason or reasons why it is expedient for the ends of justice to transfer the case, has to be recorded.
(b) The judicial power under Section 408(1) and the administrative power under Section 409 (1) and (2) are distinct and different and Section 408 is not controlled by Section 409(2). A Sessions Judge in exercise of his administrative power under Section 409 may :
(i) withdraw any case or appeal from any Assistant Sessions Judge or Chief Judicial Magistrate sub-or-dinate to him;
(ii) recall any case or appeal which he has made over to any Assistant Sessions Judge or Chief Judicial Magistrate sub-ordinate to him;
(iii) recall any case or appeal which he has made over to any Additional Sessions Judge, before trial of such case or hearing of such appeal has commenced before such Judge.
and try the case or hear the appeal himself or make it over to another Court for trial or hearing in accordance with the provisions of the Code. No hearing need be granted to any one before exercising such power. But the reason therefor shall have to be recorded having regard to Section 412.
(c) A Sessions Judge in exercise of his administrative power under Section 409, may also recall any case where trial of the case or hearing of an appeal has commenced before an Additional Sessions Judge (for the purpose of trying/hearing it himself or for being made over to another Additional Sessions Judge), if such Judge before whom it became part-heard has retired, resigned, died or is transferred outside the Sessions Division. No hearing need be given for such recalling though the reason should be recorded. It is not necessary to refer such matters to the High Court for transferring them by exercise of power under Section 407 of the Code.
The reference is disposed of accordingly.