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 vs. State of U.P.
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

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