Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Writ No.1049 of 2012 ====================================================== Rit Lal Yadav, Son of Ramashish Yadav, Resident of Village- Kothawa, P.S.- Khagaul, District- Patna. .... .... Petitioner Versus 1. The State of Bihar. 2. The District Magistrate, Patna. 3. The Senior Superintendent of Police, Patna. 4. The Superintendent of Police, Patna. 5. The Sub-Divisional Police Officer, Danapur. 6. Asha Sinha, Wife of Late Satya Narain Sinha, Resident of Village- Sarari, P.S.- Sahpur, District- Patna. 7. Patna Civil Court, through the Registrar, Patna. .... .... Respondents ====================================================== Appearance : For the Petitioner : Mr. Jitendra Singh, Sr. Advocate. Mr. Arun, Advocate. For the Respondent No. 7 : Mr. Binodanand Mishra, Advocate. For the State : Mr. Prabhu Narayan Sharma, A.C. to A.G. ====================================================== CORAM: HONOURABLE MR. JUSTICE AKHILESH CHANDRA ORAL ORDER 13 26-07-2013 Heard the learned counsels appearing on behalf of the parties. 2. This is an application seeking quashing of Letter No. 175/Sessions dated 06.09.2012 issued by the learned Sessions Judge-Cum-Appellate Authority, Civil Courts, Patna, transferring bunch of cases against the petitioner pending in the Court under the Sub-Division, Danapur to Patna Sadar without providing any opportunity of hearing to the petitioner. 3. This is undisputed position that good number of cases were pending against the petitioner in different Courts at one of the Sub-Divisions of this District Patna i.e. Danapur (situated at
Legal Reasoning
Patna High Court CR. WJC No.1049 of 2012 (13) dt.26-07-2013 2/7 distance around 12 kilometers) under Sessions Division of Patna and the Additional District and Sessions Judges Court at Danapur has started functioning there from the year 2009. 4. It is evident from the order impugned, copy of which has been filed with supplementary counter affidavit furnished on behalf of the Registrar, Civil Court, Patna (respondent no. 7), that in view of Letter No. 2220 dated 19.04.2012 of the Senior Superintendent of Police, Patna supported with Letter No. 1376 dated 27.04.2012 of the District Magistrate, Patna, the cases pending at Danapur in different Courts including the Courts of Additional Sessions Judges have been recalled and transferred to the Courts at Patna. 5. On going through the contents of aforesaid letters Annexure-A & B indicating some law and order problem etc. there at Danapur during the period such cases are taken up etc., the learned Sessions Judge appears exercising his powers, took own initiative in administrative side. 6. The main grievance against the order impugned is that the petitioner was not provided any opportunity of hearing and he feels difficulty in taking proper steps in each and every case to defend. It is pointed out that one of the cases i.e. Sessions Trial No. 246 of 2006 / 246A of 2006 though has earlier been Patna High Court CR. WJC No.1049 of 2012 (13) dt.26-07-2013 3/7 recalled from Danapur to Patna by a Judicial Order dated 28.06.2012 passed in Cr. Misc. Transfer Case No. 86 of 2012 also finds mentioned in the list. 7. The Sessions Judge, Patna, is the Officer controlling and In-charge of entire Sessions Division, Patna, wherein, Sub-Division, Danapur also lies, consequently, he has every control and right over the cases pending in Sessions Division, Patna in any of the Courts at the Sub-Divisions falling under its Jurisdiction. 8. Section 408 of the Code of Criminal Procedure, which reads as such:- “408. Power of Sessions Judge to transfer cases and appeals. – (1) Whenever it is made to appear to a Sessions Judge that an order under this 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 in his sessions division. (2) 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) The provisions of sub-sections (3), (4), (5), (6), (7) and (9) of section 407 shall apply in relation to an application to the Sessions Judge for an order under sub-section (1) as they apply in relation to an application to the High Court for an order under sub-section (1) of section 407, except that sub-section (7) of that section shall so apply as if for the words "one thousand rupees” occurring therein, the words "two hundred and fifty rupees" were substituted.”, provides power of transfer of cases and appeals to Sessions Judge within its own Jurisdiction. From plain reading of Sub-Section 2 of Section 408 of the Code of Criminal Procedure, Patna High Court CR. WJC No.1049 of 2012 (13) dt.26-07-2013 4/7 it appears that apart from any application on either of the side interested in the case or cases by its own initiative, the Sessions Judge is empowered to transfer the case or cases from one Court to another within the Sessions Division. 9. It may not be out of place to mention here in Section 24 of the Code of Civil Procedure that the District Judge has same power. In Section 408 of the Code of Criminal Procedure and Section 24 of the Code Civil Procedure read with Section 8 of Bengal, Agra, Assam, Oudh Civil Courts Act (12 of 1887), it is crystal clear that as a Sessions Judge exercising powers under the Code of Criminal Procedure, the Officer concerned has the powers not in any way less than a District Judge and if any order of transfer of the cases passed in administrative side, there is no requirement of any notice to either of the side interested with the cases. 10. This Court while dealing with the power of District and Sessions Judge in criminal matter of its decision in Paragraph-4 in case between “M/S. Kailash Chand and Co., Bakerganj and District Magistrate, Patna and Others” reported in “1980 (28) B.L.J.R.” has held:- “4. …………….. There can, therefore, be no difficulty in taking the view that in terms of Civil Courts’ Act the District and Sessions Judge had the to to jurisdiction Judge. Additional District …………….” transfer and Sessions the appeal Patna High Court CR. WJC No.1049 of 2012 (13) dt.26-07-2013 5/7
Legal Reasoning
And in case of “Sri Vishnu Kant Jha v. Sri Dinesh Jha and Others” reported in “AIR 1993 PATNA 135” in Paragraph-14 it is said that:- “14. So far as the case of suo motu transfer is concerned, the language of statute is very explicit that power can be exercised without issuing notice to the parties. It is well settled that as a general rule the principle of audi alteram partem is applicable in each and every action wherever the same is proposed to be taken against a party. It is also well settled that application of the aforesaid principle can be excluded either expressly or by necessary implication. In the case of such transfer, application of the principle of audi alteram partem has been expressly excluded by the legislature. Therefore, before exercising power of suo motu transfer by District Judge or this Court, no notice is necessary to be served upon any of the parties. Reference in this connection may be made to a Division Bench decision of this Court in Baijnath Prasad Singh v. Dasrath Prasad Singh, AIR 1958 Patna 9, Full Bench decision of Madras High Court in Annamalai Chettiar v. Ramanathan Chettiar, AIR 1936 Mad 55, and Division Bench decisions of Rajasthan High Court, Allahabad High Court and Oudh Court in Devichand v. Rikhab Chand, AIR 1957 Raj 255, Ram Das v. Habibullah, AIR 1933 All 178 and A.S. De Mello v. New Victoria Mills Co. Ltd., AIR 1926 All 17, besides two decisions by two single Judges of Allahabad High Court in Fatem Begem v. Imdad Ali, AIR 1920 All 249 and Umesh Chandra Bharadwaj v. Mahesh Chandra Sharma, AIR 1983 All 290 and one decision by a single Bench of Nagpur Court in the case of Firm B. Sitaram v. B. Ladhuram, AIR 1916 Nag 123. In the aforesaid cases, directly against the order of transfer, higher Court was moved and in none of them a party after passing of the order of transfer challenged the final order passed by tranferee court on the ground that the order of transfer was passed without notice to him.” 11. The learned counsel appearing on behalf of the petitioner has placed reliance upon a decision of Hon’ble Apex Patna High Court CR. WJC No.1049 of 2012 (13) dt.26-07-2013 6/7 Court in cases of “Naib Singh v. State of Haryana” reported in “AIR 1996 SUPREME COURT 2759” and “Abdul Nazar Madani Versus State of T.N. and Another” reported in “(2000) 6 SUPREME COURT CASES 204”. But, the decisions cited above and relied upon are not at all applicable in the instant case since they have dealt with the powers of High Court for transfer of the cases from one State to another or from one Sessions Division to another Sessions Division and as prescribed under Section 407 of the Code of Criminal Procedure, but apart from others, there appears a bar in suitable cases on the exercise of such power by the Court as prescribed under Section 407, Sub-Section 2 of the Code of Criminal Procedure unless any application for such purpose is decided by the Sessions Judge, no application for transfer of such case can be entertained or order passed therein, that means, any order of the High Court for such transfer can be exercised in judicial side and law is very much clear on the point that if any Court intends to exercise its judicial power, it needs to provide opportunity of hearing to the persons affected or likely to be affected. 12. Having regard to the facts and circumstances and position of law discussed above, this Court does not find any merit in this application. Accordingly, this writ application is hereby Patna High Court CR. WJC No.1049 of 2012 (13) dt.26-07-2013 7/7 dismissed. However, it is further made clear that this order will not affect the right of the petitioner to seek his remedies before competent authority i.e. Sessions Judge, Patna in judicial side in the event any such prayer is made it may be decided in accordance with law by taking into consideration the merit of each and every case taking care of the facts and circumstances placed therein. Praveen-II/- (Akhilesh Chandra, J)