Order Of Sessions Judge To Transfer Case Not Appealable U/S 407 CrPC: Patna High Court
The Patna High Court while providing clarification regarding the appealability of an order issued by Sessions Judges under Section 408 CrPC for the transfer of a case, has affirmed that such orders are not appealable under Section 407 CrPC.Section 408 empowers Sessions Judge to transfer cases and appeals from one Criminal Court to another Criminal Court in his sessions division. Section...
The Patna High Court while providing clarification regarding the appealability of an order issued by Sessions Judges under Section 408 CrPC for the transfer of a case, has affirmed that such orders are not appealable under Section 407 CrPC.
Section 408 empowers Sessions Judge to transfer cases and appeals from one Criminal Court to another Criminal Court in his sessions division. Section 407 pertains to power of High Court to transfer cases and appeals. Sub-section (2) thereof 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.
Justice Anil Kumar Sinha while delivering the judgment, held, “It is clear that the petitioner is not invoking the power under Section 407 of the Code of Criminal Procedure, 1973, for transfer of the case from one sessions division to another sessions division and/or for transfer of the case in the same sessions division after rejection of his prayer for transfer before the Sessions Judge; on the contrary, the petitioner has challenged the order of transfer of Sessions Trial No. 82 of 2020, passed on the prayer of the informant/Opposite Party No. 2, by which the learned Sessions Judge, Bhagalpur, has transferred the Sessions Trial No. 82 of 2020 from 2nd Additional Sessions Judge, Naugachia Sub-Division, Bhagalpur, to 1st Additional Sessions Judge, Bhagalpur, by order, dated 10.05.2022.
“Accordingly, in my opinion, the impugned order cannot be challenged under Section 407 of the Code of Criminal Procedure, 1973, and the petitioner has remedy before the appropriate forum under the relevant provision of law prescribed under the Code of Criminal Procedure, 1973,” Justice Sinha added.
The case in question involved the petitioner, who was an accused, had filed an application under Section 407 CrPC for setting aside the order transferring records of the Sessions Trial from 2nd Additional Sessions Judge to 1st Additional Sessions Judge, Bhagalpur, at the instance of the informant.
The court highlighted Section 408 of the CrPC, emphasizing that it deals with the power of the Sessions Judge to transfer cases and appeals within its sessions division when it is deemed expedient for the ends of justice. Importantly, it was also highlighted that orders passed under Section 408 of the CrPC are not subject to appeal.
The Court then elucidated that Section 407 of the CrPC grants the High Court the authority to transfer cases or appeals. According to the statutory provision, the Sessions Judge is empowered to transfer cases or appeals within the same sessions division, while the High Court has jurisdiction to transfer them from one sessions division to another.
Furthermore, the court drew attention to the proviso to Section 407(2) of the CrPC, which specifies that an application for transferring a case from one Criminal Court to another within the same sessions division can only be made to the High Court if it has been previously submitted to the Sessions Judge and rejected by the latter.
Crucially, the court noted that the petitioner was not seeking the transfer of the trial but rather challenging the order issued under Section 408 of the CrPC by the Sessions Judge in Bhagalpur. This order had led to the transfer of Sessions Trial No. 82 of 2020 within the same sessions division, from Naugachia to Bhagalpur.
In light of this judgment, the application filed under Section 407 of the CrPC was deemed not maintainable, resulting in the dismissal of the writ application. The petitioner has been granted the liberty to approach the relevant forum to challenge the order pertaining to the transfer of Sessions Trial No. 82 of 2020.
Counsel/s For the Petitioner/s: Mr. Jitendra Singh, Sr. Adv. Mr.Vikram Singh
Counsel/s For the State: Mr.Binod Kumar
Counsel/s For the O. P. No. 2: Mr. Umesh Prasad Singh, Sr. Adv. Mr. Rajni Kant Singh Mr. Vaibhav Veer Shankar
LL Citation: 2023 LiveLaw (Pat) 114
Case Title: Prushotam Yadav @ Chotu Vs. The State Of Bihar And Anr
Case No: Criminal Miscellaneous No.43381 Of 2023