Sec.407,408 and 409 of Cr.P.C. - Transfer Application - from one Addl. Sessions court to another Addl. Sessions court in the same Division - first is to be filed Before Sessions Judge and only after Rejection , it should be filed to High Court whether partly heard or not - allegations that the presiding officer making unwarranted intrusion in Trial and thereby left him with a fear of unfair trial - filed Transfer application directly to High court with out filing the same before Sessions Judge not maintainable even though partly trail was conducted -2015 Telangana & A.P.msklawreports


Presiding Officer making unwarranted intrusion in trial.
Thereby, he felt that fair trial may not be conducted 
and 
he may not be able to establish his defence. 
On this ground, he sought for transfer of the case.

i)     Though PW.1 did not specifically depose the contents of Ex.P.1
and 161 Cr.P.C statement, the Presiding Officer suggested the contents
inspite of the objections raised by learned counsel for accused.
 ii)    During the cross-examination of PW.1, when important points
which are favourable to the defence side are sought to be elicited through
PW.1 by the defence counsel, the Presiding Officer interdicted and told
PW.1 not necessary to answer and did not record the answers.  Similarly,
when the defence counsel sought to elicit the events that took place prior
to the marriage of the deceased and accused and the attitude of the
deceased towards him and her relation with one Nalla Ravinder etc., the
Presiding Officer suggested PW.1 not necessary to answer the questions 
and did not record the answers.
   iii)    When the defence counsel sought to prove the alibi plea through
PW.1, Presiding Officer raised objection in high voice stating as if the
accused was guilty of causing murder of his wife.
Whether no application under sec.407 (2) 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.  ?
the petitioner/accused has filed the transfer application
straightaway before the High Court without filing similar application
before the Sessions Court in compliance with the proviso to sub-
section(2) of Section 407 Cr.P.C.
The said proviso reads thus:
The High Court may act either on the report of the lower Court,
or on the application of a party interested, or on its own
initiative:
Provided 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.

Under Section 407 Cr.P.C, power is conferred on High Court to transfer
cases and appeals from one Court to another Court under the
circumstances mentioned in the said section.
Similar power is conferred
on a Sessions Court by Section 408 Cr.P.C to transfer cases and appeals
from one Court to another Court in the Sessions Division. 
The power to
transfer conferred on High Court and Sessions Court under Sec.407 and
408 Cr.P.C. is the judicial power.  
Then Section 409 Cr.P.C is concerned,
it is a well known fact that under Section 194 Cr.P.C, an Additional
Sessions Judge or Assistant Sessions Judge shall try the cases when they 
are made over by the Sessions Judge.  
They cannot independently take 
cognizance of the offences to try.  
The power to make over is conferred
on the Sessions Judge under Section 194 Cr.P.C. This is the
administrative power. 
It is in this context Section 409 Cr.P.C lays down
that Sessions Judge who has the power to make over the cases can  
withdraw any case or appeal or recall any case or appeal which he has
made over to any Assistant Sessions Judge or Chief Judicial Magistrate
subordinate to him.  
Sub-section (2) of Section 409 Cr.P.C lays down that
when a Sessions Judge made over any case or appeal to any Additional 
Sessions Judge, he can recall such case or appeal at any time before the
trial of the case or the hearing of the appeal is commenced and not
thereafter. 
 Thus the powers under Sections 408 and 409 Cr.P.C are
concerned, there is a distinction.  Section 408 Cr.P.C is not governed by
Section 409(2) Cr.P.C.
Whether a Sessions Judge has no power under Section 408 of  
the new Code of Criminal Procedure to transfer a part heard
case or appeal from the court of an Additional Sessions Judge to
some other competent court within his sessions division and the
limitations imposed under Section 409 Sub-clause (2) of the new
Code are applicable in exercise of the power of transfer
conferred under Section 408 of the new Code?

 Having observed thus, the Full Bench of Allahabad 
in Radhey Shyam and another 
passed the following order:
Para 21:
 For the reasons given above our answer to the
question referred to us is that the Sessions Judge is empowered
under Section 408 Code of Criminal Procedure to transfer a part
heard case or appeal from a court of an Additional Sessions
Judge to another competent Court within his sessions division if
it is expedient in the interest of justice and the limitations
imposed under Section 409(2) Code of Criminal Procedure are 
not applicable in exercise of the power of transfer conferred
under Section 408 Code of Criminal Procedure.
     In the light of above decision, it is clear that Section 408 Cr.P.C
stands apart from Section 409 Cr.P.C. Therefore, the petitioner has to
invariably approach the Sessions Court for transfer of the case before
approaching the High Court as provided in the proviso to Section 407(2)
Cr.P.C.  Since in the instant case, the said procedure is not followed, the
present application is not maintainable. Hence, the petition is liable to be
dismissed. - 2015 Telangana &A.P.msklawreports

Comments

Popular posts from this blog

Article 54 of the Limitation Act, 1963 (36 of 1963) reads as follows: “For Specific performance of a contract: Three years The date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused.”= the apex Court in Ahmmadsahb Abdul Mila vs. Bibijan[1], wherein it was held that the date fixed for the performance of the contract should be a specified date in the calendar, and submitted that since no specified date in the calendar for performance of the contract is mentioned in the agreement of sale, the second limb of Article 54 of the Limitation Act is applicable. ; whether the suit is barred by limitation or not becomes a tribal issue and when there is a tribal issue, the lower Court ought not to have rejected the plaint at the threshold. In view of the same, order, dated 27-01-2012, in CFR.No.90 of 2012, passed by the Additional Senior Civil Judge, Ongole, (FAC) Senior Civil Judge, Darsi, is, hereby, set aside. The Appeal is allowed accordingly.

Or.18, rule 17 and sec.151 C.P.C - petition filed for reopen and examination of the executant of Ex.A1 the sale deed to fill up the lacuna in evidence pointed out at the time of arguments not maintainable = Shaik Gousiya Begum. ..Petitioner Shaik Hussan and others.... Respondents = Published in http://judis.nic.in/judis_andhra/qrydisp.aspx?filename=10515

Order 39 Rules 1 and 2 CPC. plaintiff has to prove his title and possession how he came into possession prima faice , in the absence of the same, not entitled for interim injunction = The questions as to whether the lease deed was properly stamped and whether the stamp paper on which it was typed can be said to have been procured through proper source, need to be dealt with at the stage of trial.; The suit filed by the 1st respondent, is the one for injunction simplicitor in respect of an item of immovable property. He has also filed an application under Order 39 Rules 1 and 2 CPC. Basically, it was for the 1st respondent to establish that he is in possession and enjoyment of the property and that he derived the same through lawful means, particularly when he did not contend that he encroached upon the property.= assumptions of facts against to the contents of crucial third party by misreading the same- it is just un-understandable as to how the trial Court gathered the impression that Anuradha stated that there was a meeting of Board of Directors, where it was decided to lease the property to the appellants. - the trial Court itself was not clear as to whether the appellant is the lessee or a Manager or is working under any other arrangement. - The important findings that have a bearing upon the valuable rights of the parties cannot be based upon such uncertain and unverified facts. One of the cardinal principles in the matter of examining the applications filed under Order 39 Rules 1 and 2 CPC is that a party claiming that relief must come to the Court with clean hands. Prima facie, we find that there are no bona fides, much less consistency on the part of the 1st respondent, in his effort to get the order of temporary injunction. The trial Court has misread the evidence and misinterpreted the facts borne out by the record.