Additional Sessions Judge Have No Power To Transfer Cases Under S.408CrPC-Mumbai Court Dismissed Kangana Ranaut's Application To Transfer Defamation Suit Filed By Javed Akhtar

In an order passed on December 31, Additional Sessions Judge S U Baghele rejected Ranaut's application on three technical grounds – that he is an Additional Sessions Judge and not a "Sessions Judge"; that entertaining a revision from an order arising out of an order passed under section 410 of the CrPC would virtually amount to taking a total departure from the provisions relating to transfer of criminal cases, as embodied under sections 406, 407 and 408 of the Cr.P.C; and that section 397 for revision can be invoked only when the order under challenge is "passed as a 'court' and not as 'judge'."

In-charge CMM ST Dande, on October 21, 2021, had rejected Ranaut's application seeking to transfer the defamation case filed by noted lyricist Javed Akhtar from court of Andheri Metropolitan Magistrate RR Khan's court. The actor alleged "bias" on the part of Magistrate Khan to seek the transfer, which was rejected.

In-charge CMM ST Dande had observed that merely because a judge proceeded with a case by following the law, doesn't mean he was biased against the accused. This order was challenged in the current application which has now been rejected.

Advocate Rizwan Siddiquee, appearing for Ranaut before Judge Baghele, cited two judgments each from the Madras and Calcutta High Courts, and also said that even otherwise, the case can be transferred under section 408 of the CrPC.

Judge Baghele observed that the four authorities cited by Siddiquee were the revision applications preferred before the respective High Courts, or the orders passed by Sessions Courts in revision were challenged before the respective High Courts.

On the point of provisions under the CrPC, the judge noted that sections 406, 407 and 408 of the CrPC dealt with powers to transfer cases, while sections 409 and 410 dealt with the power of withdrawal as well as recall of cases.

The court then noted that section 408 of the CrPC empowered a Sessions Judge to transfer cases, whereas sections 407 and 406 empower the High Courts and the Supreme Court to transfer cases.

"Thus, the power under sections 406 and 407 rest with "Courts", viz. Hon'ble Apex Court and Hon'ble High Courts, respectively, whereas the power under section 408 of the Cr.P.C. rests with "Judge" viz. the Sessions Judge. Thus, the Judge, with whom the power under section 408 rests, is the Sessions Judge, and not the Judges presiding over Sessions Courts, like, Additional Sessions Judges or Assistant Sessions Judges," he then observed and said that since he was an Additional Sessions Judge, he could not transfer a case under section 408 of the CrPC.

The next observation was with respect to entertaining a revision application arising out of an order passed under section 410 of CrPC. Judge Baghele observed, "If the impugned order is allowed to be challenged in revision, and thereafter, to be taken under a writ petition and thereafter, by way of a special leave petition, it would virtually amount to taking a total departure from the provisions, relating to transfer of criminal cases, as embodied under sections 406, 407 and 408 of the Cr.P.C., respectively."

Ranaut's revision application mentioned section 397 of CrPC. Judge Baghele noted that the section enables any Sessions Judge to exercise the powers of revision, in relation to the finding, sentence or order recorded or passed by "inferior court".

However, he observed that he could entertain the application even under that section as the judge who had passed the order under challenge, had done so as a "judge" and not as a "court."

Judge Baghele observed, "Thus, to enable the party to challenge any order, the same must have been passed by "court". Thus, an order passed by a "Judge" cannot be the subject matter of a revision, as the passing of the said order by a "court" is sine-qua-non, for preferring a revision. While passing the order, on the application for the transfer of case, the Chief Judicial Magistrate cannot be said to have acted as a court, sensu-stricto, but appears to have acted as a Judge, notwithstanding whether the transfer of case was sought for, on administrative grounds or on judicial grounds. Owing to the same, a revision would not lie, as against the said order."

Ranaut had filed the Revision Application on December 17, stating that despite bringing to the knowledge of the in-charge CMM ST Dande "the acts of bias of the Magistrate", the in-charge CMM ST Dande passed an order dated 21 October, 2021 therein rejecting her application to transfer the case to any other competent Magistrate.

The revision application argued that despite the fact that Akhtar's complaint was a "summons triable case" and that the Magistrate had never issued any summons demanding her personal appearance, yet since the very beginning the said Magistrate without assigning any reasons in order, was verbally threatening to issue warrants against her without passing a sound reasoned order, therein recording his reasons for doing so.

It also alleged that the Magistrate was acting with a bias and prejudiced mind and ought to be fully aware that the absence of the Applicant was not hampering the progress of the trial, that the discretion given to the Magistrate was not an arbitrary power and had to be exercised cautiously and judiciously. Ranaut further alleged that the concerned Magistrate was "in the habit of issuing callous statements" against her by threatening to issue warrants to secure her presence before him for a "bailable" and "non-cognisable" offence in the presence of media personnel.

On November 3 Javed Akhtar filed the complaint before the Magistrate alleging that Ranaut defamed and damaged his "immaculate reputation" by dragging his name in actor Sushant Singh Rajput's death in her interview with Republic TV Anchor Arnab Goswami, on July 19, 2020.

Akhtar's verification statement was completed in the following month and subsequently directed the Juhu police to investigate under section 202 of the CrPC. After a police report, the Metropolitan Magistrate issued process against Ranaut.

The court noted that despite receipt of summons, Ranaut remained absent without applying for exemption, the court issued a bailable warrant and cancelled it after she appeared.

The court said that Metropolitan Magistrate, 10th Court, Andheri, Mumbai, had given Kangana a fair opportunity after she remained absent.