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TMI Blog2015 (3) TMI 1327X X X X Extracts X X X X X X X X Extracts X X X X ..... t Akula Venkatram. 3. Material on record further discloses that pending M.C. No. 70 of 2013, on the file of the 23rd Metropolitan Magistrate, Saidapet, Chennai-15, M.P. No. 4523 of 2013, has been filed by the respondent/wife, under Section 19(1)(a)(c)(e) of the Protection of Women from Domestic Violence Act, 2005, for the following reliefs, (a) Restraining the respondents 1 to 3, viz., Mr. Ashwant Akula Venkatram and his parents, their men, agents, servants, from in any manner, attempting to disturb the petitioner's possession of the shared household at 3rd Floor, La Terrazo Apartment, No. 11-B, Ranjith Road, Kotturpuram, Chennai 600 085; and (b) Restraining the respondents 1 and 2/petitioners herein, from dealing with, alienating or disposing off or renouncing their rights of the shared household at the 3rd Floor, La Terrazo Apartment, No. 11-B, Ranjith Road, Kotturpuram, Chennai 600 085, except with the leave of the Court, pending disposal of the criminal case. 4. After considering the averments made in M.C. No. 70 of 2013, counter affidavit, evidence and records, vide order, dated 17th March, 2014, in M.P. No. 4523 of 2013, the learned 23rd Metropolitan Magistrate, Sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the same, Mrs. Sunitha Venkatram and Mr. Ashwant Akula Venkatram, revision petitioners have filed Crl.A. Nos. 176 and 177 of 2014, respectively. When the abovesaid four appeals were pending, contending inter alia that the learned 2nd Additional Sessions Judge, Chennai/Presiding Officer, has refused the request of the revision petitioners to raise additional grounds, in the criminal appeals and in a pre-determined manner, proposed to pass judgments, in the above criminal appeals, and if the appeals were to be disposed of, by the said Presiding Officer, the revision petitioners would not get fair justice and on the other grounds, Mr. Ashwant Akula Venkatram (Revision Petitioner in Crl.R.C. Nos. 184 and 186 of 2015), husband of the respondent, has filed Crl.M.P. No. 20169 of 2014 and 818 of 2015 in C.A. Nos. 177 and 144 of 2014, under Section 24 of the Code of Civil Procedure, seeking for transfer of the appeals in C.A. Nos. 177 and 144 of 2014, on the file of the learned IInd Additional Judge, City Civil Court, Chennai. 10. Similarly, Mrs. Sunitha Venkatram (Revision petitioner in Crl.R.C. Nos. 183 and 185 of 2015), W/o. Mr. Venkatram Akula and mother of Mr. Ashawant Akula Venk ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ollowing a Full Bench decision of this Court in R. Rama Subbarayalu Reddiar v. Rangammal reported in : 1962 (II) MLJ 318, on the aspect of binding effect on the Courts, subordinate to the High Court and taking note of the judgment in Devarasu v. State, rep., by the Station House Officer, Kottucherry Police Station, Karaikal reported in: 1998 (2) ALD (Cri.) 212 : 1998 (1) LW (Cri.) 128, held the petitions for transfer are not maintainable. Answering accordingly, all the transfer petitions were dismissed. The Criminal Revision Cases are directed against the orders passed in the transfer petitions. 15. Mr. S. Prabhakaran, learned counsel for the petitioners submitted that the learned Sessions Judge has failed to consider that the Sessions Judge, can himself take cognizance of a case pending in his sessions division morefully described under the statute. The learned Sessions Judge has also failed to know his own powers regarding to transfer under Section 408 Cr.P.C. and had a doubt about his jurisdiction conferred under Section 408 of Cr.P.C. The learned Sessions Judge has passed an order, contrary to the statute and erred in observing that he does not require to follow any othe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ording to him, the decision made in Devarasu's case (cited supra), is per incuriam. 19. Learned counsel for the petitioners further submitted that initially, remarks were called for, by the learned Sessions Judge from the concerned Court for transfer of appeals, pending before the II Addl. Sessions Judge, which act is in conformity with the powers under Section 408 of Cr.P.C., but at a later stage, the learned Principal Sessions Judge, has passed an order, contra to the views initially taken by him. Hence, he submitted that the order passed by the learned Principal Sessions Judge, Chennai, is devoid of merits and contrary to the principles laid down by other High Courts, and the decision of the Sessions Judge is against the statute under Section 408 of Cr.P.C., in and by which, powers conferred on the Principal Sessions Judge. 20. It is the further contention of the learned counsel for the petitioners that the learned Sessions Judge has failed to appreciate the fact that powers conferred under Section 408 Cr.P.C., is not an administrative power and that the power conferred on the Sessions Judge to transfer of criminal case from one criminal court to another criminal court in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court to the several passages in Devarasu's case (cited supra), learned counsel for the respondent submitted that the learned Judge has considered the issue, as to whether, a case can be transferred from one Criminal Court to another, in the same Sessions Division, with reference to Sections 407(2) and 408 Cr.P.C., and after considering a plethora of decisions and various statutory provisions, ultimately, summarised the law on the point, holding that the Sessions Judge has no powers to transfer the case from the file of Additional Sessions Judge, to any of the Court, having equal jurisdiction. It is also her contention that the well considered judgment of the learned Judge, cannot be termed as per incuriam. She also placed reliance on a decision of this Court in Kumar v. Superintendent of Police [Crl.R.C. No. 740 of 2005, dated 12.02.2007] and Appukuttan v. Z. Thomas Zakaria [Crl.O.P.(MD) No. 18201 of 2012, dated 09.12.2014] and prayed for dismissal of the revision cases. 25. Mr. P. Govindarajan, learned Additional Public Prosecutor, submitted that the judgment in Devarasu's case (cited supra), has settled the law, on the powers of the Sessions Judge and it is binding on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Additional or Assistant Sessions Judge, or, if there be no Additional or Assistant Sessions Judge, by a Chief Judicial Magistrate, in the sessions division; and every such Judge or Magistrate shall have jurisdiction to deal with any such application. (6) The Court of Session shall ordinarily hold its sitting at such place or places as the High Court may, by notification, specify; but, if, in any particular case, the Court of Session is of opinion that it will tend to the general convenience of the parties and witnesses to hold its sittings at any other place in the sessions division, it may, with the consent of the prosecution and the accused, sit at that place for the disposal of the case or the examination of any witness or witnesses therein. Explanation. - For the purposes of this Code, "appointment" does not include the first appointment, posting or promotion of a person by the Government to any Service, or post in connection with the affairs of the Union or of a State, where under any law, such appointment, posting or promotion is required to be made by Government. 10. Subordination of Assistant Sessions Judges.- (1) All Assistant Sessions Judges shall be subordinate to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arise, or (c) that an order under this section is required by any provision of this Code, or will tend to the general convenience of the parties or witnesses, or is expedient for the ends of justice. it may order- (i) that any offence be inquired into or tried by any Court not qualified under sections 177 to 185 (both inclusive), but in other respects competent to inquire into or try such offence; (ii) that any particular case or appeal, or class of cases or appeals, be transferred from a Criminal Court subordinate to its authority to any other such Criminal Court of equal or superior jurisdiction; (iii) that any particular case be committed for trial to a Court of Session; or (iv) that any particular case or appeal be transferred to and tried before itself. (2) 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. (3) Every appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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. 409. Withdrawal of cases and appeals by Sessions Judges.- (1) A Sessions Judge may withdraw any case or appeal from, or recall any case or appeal which he has made over to, any Assistant Sessions Judge or Chief Judicial Magistrate subordinate to him. (2) At any time before the trial of the case or the hearing of the appeal has commenced before the Additional Sessions Judge, a Sessions Judge may recall any case or appeal which he has made over to any Additional Sessions Judge. (3) Where a Sessions Judge withdraws or recalls a case or appeal under sub-section (1) or sub-section (2), he may either try the case in his own Court or hear the appeal himself, or make it over in accordance with the prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Reny George's case (cited supra) is that the proviso would apply only to cases where the Sessions Judge has power to transfer, viz., for transferring cases from and to courts subordinate to the court of a Sessions Judge. 31. There cannot be any quarrel over the submission of Mr. S. Prabhakaran, learned counsel for the petitioners that the Sessions Judge of the Division,is the administrative head of the decision, exercising administrative powers, in the matter of distribution of work, to other Judges, dealing with Sessions Cases, which includes an Assistant Sessions Judge. 32. In Surendra Kumar's case, the Hon'ble Division Bench of the Kerala High Court, discussed the issue, as hereunder: "As per Section 194 of the Code, an Additional Sessions Judge is to handle only those cases which are made over to him by the Sessions Judge of the division. Under Section 409 of the Code, the Sessions Judge who made over the cases to the Additional Sessions Judge is empowered to withdraw any case or appeal before the trial of the case or the hearing of the appeal has commenced. Being the Sessions Judge, he has to take over the administration of criminal justice in his sessions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be limited to transfer of cases in the inferior criminal courts only? 'Inferior criminal court' is an expression used only under Section 397 while dealing with the powers of revision. It is pertinent to note that the expression "subordinate" is conspicuously absent under Section 408. The Additional Sessions Judge is not subordinate to the Sessions Judge also. But it has to be noted that the Additional Sessions Judge gets jurisdiction to deal with a case only if such a case or appeal is made over to him by the Sessions Judge. Any time prior to the trial or hearing of the case or appeal as the case may be, the Sessions Judge is also empowered to withdraw such cases. Thus, though the Court of Additional Sessions Judge is not inferior and though the Additional Sessions Judge is not subordinate to the Sessions Judge, as far as administration of criminal justice in the sessions division is concerned, there is an administrative subordination in the sense that the Additional Sessions Judge gets jurisdiction only in respect of the cases made over to him and such cases are liable to be withdrawn also before commencement of the trial or hearing. It appears that the legislature had ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it or proceeding has been transferred or withdrawn under Sub-section (1), the Court which [is thereafter to try or dispose of such suit or proceeding] may, subject to any special directions in the case of an order of transfer, either retry it or proceed from the point at which it was transferred or withdrawn. (3) For the purposes of this section.-- (a) Courts of Additional and Assistant Judges shall be deemed to be subordinate to the District Court; (b) "proceeding" includes a proceeding for the execution of a decree or order. (4) The Court trying any suit transferred or withdrawn under this section from a Court of Small Causes shall, for the purposes of such suit, be deemed to be a Court of Small Causes. (5) A suit or proceeding may be transferred under this section from a Court which has no jurisdiction to try it." 36. The Hon'ble Division Bench of Kerala High Court has also drawn the analogy on the exercise of jurisdiction by the Sessions Judge, on the civil side, as follows: "The Presiding Officer of a District Court is the District Judge. The District Judge on the civil side is empowered to transfer any case at any stage from one Additional District Court. If ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , "9. It is significant to note that the proviso to Sub-section (2) of Section 407, Criminal Procedure Code only bars an application by a party interested to the High Court for transferring a case from one Criminal Court to another Criminal Court in the same sessions division unless such an application for transfer has been made to the Sessions Judge and rejected by him. It does not impose any bar on the power of the High Court under Section 407(1), Criminal Procedure Code to transfer a case from one Criminal Court to another Criminal Court in the same sessions division, either on the report of the lower court or on its own initiative under Section 407(2), Criminal Procedure Code. At Paragraph 15, the Hon'ble Full Bench has further held that, "15. The power conferred on the Sessions Judge under Section 408(1) Criminal Procedure Code to transfer a case or an appeal pending in the Court of an Additional Sessions Judge to another Additional Sessions Judge in his sessions division whether its hearing has commenced or not, is thus an independent judicial power which is not subject to the bar imposed by Section 409(2) Criminal Procedure Code on the administrative power of the Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (1) GLR 560 : 2007 (1) GLT 148, the Gauhati High Court, took up a suo-motu revision, against an order, passed by the Sessions Judge, Tinsukia, in a transfer petition, wherein, a Sessions case was withdrawn and transferred. Trial was pending, on the file of the Additional Sessions Judge, Fast Track Court No. 2. Certain allegations were made against the trial Judge. Accused persons filed applications for transfer. The learned Sessions Judge transferred the case. Company, party to the lis, filed an application to the High Court, contending that the transfer is against the decision, rendered in Subrata Paul v. Smti Ratna Gope reported in: 2002 (1) GLJ 421. On the exercise of administrative power of withdrawal and transfer of a Sessions case and considering the provision of Section 409(2) of the Code, the Gauhati High Court, held that, "the learned Sessions Judge had no authority or jurisdiction to withdraw the case as the power under Section 409(2) can be exercised at any time, before the trial court of the case or hearing of appeal has commenced. We find that the learned Sessions Judge did not exercise any power under Section 409 Cr.P.C." 41. On the question of exercising the powe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vided 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. 8. The issue whether that the Sessions Judge should report to the High Court of his reasonings, may arise only in a case where the Sessions Judge takes a suo motu action. But, so far rejection is concerned; the court is required to pass a reasoned order, so that the aggrieved party can approach the High Court under Sections 407 Cr.P.C. In the instant case, the transfer was allowed on an application filed by the accused in a judicial proceeding and that too after hearing both the sides. We, therefore, find that there is no requirement of law that the Sessions Judge is to report to the High Court where such an application is allowed. A conjoint reading of Section 408 and 409 Cr.P.C. shows that so far as the provisions of Section 409 are concerned, these are more or less administrative provisions for transfer or distribution of cases amongst various courts, that is to say, a rider has been provided that such distribution or withdraw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sfer the part-heard cases to another Additional Sessions Judge in exercise of power under Section 409(2) of the Code. 44. Decision in Deepchand v. State of M.P., [: 1998 (2) MPLJ 670], considered by the Hon'ble Division Bench of the Madhya Pradesh High Court in Re: District and Sessions Judge's case (cited supra), is reproduced hereunder: "6. Both these Sections are different in their scope. While Section 408 relates to transfer of a case from one Criminal Court to another Criminal Court within the same Sessions Division, Section 409 empowers the Sessions Judge subject to the limitation contained in Sub-section (2), to withdraw any case or appeal which he had made over to any Additional Sessions Judge, Assistant Sessions Judge or Chief Judicial Magistrate and either to try/hear the case/appeal himself or make it over to another Court for trial/hearing. These provisions are clearly intended to deal with two different situations. Section 409 obviously deals with a case or an appeal which though originally instituted in the Court of Sessions, has been made over by the Sessions Judge to an Additional Sessions Judge or Assistant Sessions Judge or Chief Judicial Magistrate and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9, 410 and 411 contemplate exercise of the power of withdrawal/recalling cases in a routine manner in the day to day administration. They do not contemplate any hearing to the parties interested." 46. The Hon'ble Division Bench of Madhya High Court in Re: District and Sessions Judge's case (cited supra), held that, "It is clear from the above that the power to be exercised under Sections 406, 407 and 408 is judicial power to be invoked and exercised in the manner stated therein. On the other hand, the power of withdrawing or recalling of cases under Sections 409, 410 and 411 is an administrative power, complementary to the administrative power of making over cases vested in the Chief Judicial Magistrate/Magistrate and the Sessions Judge under Sections 192 and 194 of the Code. 9. It is also clear that the power conferred in the Sessions Judge under Section 408 is on the same level as the power conferred in the High Court under Section 407 and the power under the two sections is identical (except for two matters which are not relevant for our purposes the first is while the power of the High Court extends over all Criminal Courts sub-ordinate to its authority, the power ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the affirmative." 47. On the scope of Section 409(2) of the Code, the Hon'ble Division Bench of Madhya Pradesh High Court, discussed as follows: "12. We will now consider the scope of the administrative power under Section 409(2) of the Code, which confers the power to recall any case or appeal which he had made over to an Additional Sessions Judge, at any time before the trial of the case or the hearing of the appeal has commenced before such Additional Sessions Judge. By implication, it is clear that a Sessions Judge, in exercise of the administrative power under Section 409(2) recall any case or appeal made over by him to an Additional Sessions Judge, once the trial of the case or hearing of the appeal has commenced. It is well settled that 'trial' of a Sessions case commences with the framing of the charge. But what is the position if the Additional Sessions Judge to whom the case has been made over and before whom the trial of the case or hearing of the appeal has commenced, is transferred to another Sessions Division or has retired from service before the completion of the trial?" 48. As regards Section 409(2) of the Code, the Hon'ble Division Bench has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any case pending before any Criminal Court in his Sessions Division to any other Criminal Court in his Sessions Division. That would mean that he can transfer even those cases where the trial has commenced from one Additional Sessions Judge in his Sessions Division to another Additional Sessions Judge in his Sessions Division. The transfer of a case under Section 408 of the Code being in exercise of a judicial power, it should be preceded by a hearing to the parties interested. Further, the reason or reasons why it is expedient for the ends of justice to transfer the case, has to be recorded. (b) The judicial power under Section 408(1) and the administrative power under Section 409(1) and (2) are distinct and different and Section 408 is not controlled by Section 409(2). A Sessions Judge in exercise of his administrative power under Section 409 may: (i) withdraw any case or appeal from any Assistant Sessions Judge or Chief Judicial Magistrate subordinate to him; (ii) recall any case or appeal which he has made over to any Assistant Sessions Judge or Chief Judicial Magistrate sub-ordinate to him; (iii) recall any case or appeal which he has made over to any Additional Sessio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riminal Courts in the same Sessions Division, but without any original jurisdiction." 51. On the aspect, as to the powers of the Sessions Judge, having administrative power of distribution of work, recalling or withdrawal of cases, made over, the Hon'ble Mr. Justice M. Karpagavinayagam, after considering Sections 10 and 409 Cr.P.C., has held as follows: "(67) Under Section 10(1), Cr.P.C. all the assistant Sessions Judges shall be subordinates to the Sessions Judge. Under section 15, every Chief Judicial Magistrate shall be subordinate to the Sessions Judge. Under Section 19, the Chief Metropolitan magistrate and every Additional Chief metropolitan Magistrate shall be subordinate to the Sessions Judge. Section 409(1) provides that the Sessions Judge may withdraw or recall any case or appeal, which was made over to any Assistant Sessions Judge or Chief Judicial magistrate subordinate to him. But, none of these sections would provide subordination of Additional Sessions Judge to the Sessions judge, whereas various provisions under the Code would show that both Sessions judge and Additional Sessions Judge are equal in the exercise of jurisdiction in the court of Session. (68) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich was made over by the Sessions judge to the Additional Sessions Judge under Section 194 Cr.P.C. In other words "particular case" referred in Section 408 would mean the cases other than the sessions cases which are triable by the sessions Judge. That is the reason, the provision is not made in Section 408(1) like that of Section 409(3) for posting the case before himself for the trial." 54. The learned Judge has held that, a case to be transferred, would not mean a sessions case. As regards the bar, under Section 407(2) Cr.P.C., the learned Judge, at Pragraph 77, held as follows: "It is a normal rule that for the transfer of the case pending in a Court, an application for transfer has to be filed in a Court of superior jurisdiction. In other words, a Court has power only to transfer a case pending in a Court subordinate to it. If the Additional Sessions court and Sessions Court are held to be the courts of equal jurisdiction as indicated earlier, Section 408 cannot be invoked for the transfer of a Sessions case from an Additional sessions Judge to a Sessions Judge. Therefore, the prohibition in the proviso to sub-section (2) of Section 407, in my view will have application onl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iction under Section 409, considering the provision under Section 412 Cr.P.C., the learned Judge said that, "Section 412 provides that the sessions Judge, while making an order of transfer or withdrawal under Sections 408 and 409, shall record his reasons for making it. This would show that the exercise of the power under Section 409 is not merely an administrative function, but the orders passed under Section 409 must be considered to be judicial, as the Sessions Judge has to give reasonings for invoking the said section, which could be reviewed by the superior Court, namely. High Court. The ground of expediency for the ends of justice also could be one among the grounds for consideration of withdrawal of a case by the Sessions Judge while invoking section 409(1) Cr.P.C." 59. The learned Judge has further held that Courts mentioned in Sections 408 and 409 Cr.P.C., are different. To put it precisely, Section 408 deals with only the lower Court. At Paragraphs 90, 91, 92 and 94, this Court held as follows: "(90) Section 412 Cr.P.C. mandates for recording of reasons, while Sessions Judge passing an order of transfer under Section 408 or for the withdrawal of the case under sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sessions Judge of the division may make over to him. This also would make it clear that the appeal could be filed only before the Sessions Judge and not before the Additional Sessions Judge, though he has got jurisdiction to dispose of the appeal, when it is placed before him as per the order of Sessions Judge. (100) In order to make the Sessions Judge as administrative head for the purpose of distribution of the business of making over cases to various additional Sessions Judges, the word 'sessions Judge' has been correctly employed in Section 408 Cr.P.C. Merely because the word 'sessions Judge' is used, the additional Sessions Judges cannot be considered to be inferior nor subordinates to the Sessions Judge, since both of them are exercising the same and equal jurisdiction in the Court of Session. At the most, the Sessions judge could be called to be first among equals or chief among equals. But, there Section 194. 381 and 400 would never indicate that the additional Sessions Judges are subordinates to the Sessions Judge. (103) The caption of Section 10 Cr.P.C. is subordination of Assistant Sessions Judges. Under Section 10(1), all the Assistant Sessions judg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Principal Sessions Judge, pointed out section 24 of the Code of Civil Procedure, in which it is referred that the District Court at any stage withdraw any case from any Court subordinate to it and transfer the same to any subordinate Court and for the purpose of the section, the Additional Sessions Judges shall be deemed to be the subordinate Judges to the district Court. Therefore, it is submitted that the Additional Judges who are subordinates to the Sessions Judges as per C.P.C. shall also be deemed to be subordinate Judges to the principal Sessions Judge under Cr.P.C., since the provisions relating to this are analogous. This again has no basis as it can be stated that the provision in Cr.P.C. relating to exercise of jurisdiction by the Sessions Judges and the assistant Sessions Judges as explained above are totally different from Section 24 of C.P.C. 62. Ultimately, at Paragraph 174, the learned Judge, summed up, as follows: "(1) The Court of Additional Sessions Judge is not a subordinate Court or a lower court to the Court of Sessions Judge. Both the Judges are exercising the same and equal jurisdiction in the disposal of cases. (2) Section 408(1) Cr.P.C. would relate to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ead over to him for recording his plea." 63. The duty of the judicature is to act upon the true intention of the Legislature - the mens or sententia legis. Now that the other High Courts have interpreted Section 408 Cr.P.C., differently than the Madras High Court in Devarasu's case, this Court is called upon to choose that interpretation, which represents the true intention of the Legislature, in otherwords, the 'legal meaning' or 'true meaning' of the statutory provision. In Dinesh Chandra Jamanadas Gandhi v. State of Gujarat reported in: 1989 (1) SCC 420 : AIR 1989 SC 1107, the Apex Court held as follows: "The distinction between literal and legal meaning of statutory language lies at the heart of the problem of interpretation of statutes. The court is not entitled to decline to determine the legal meaning of a statute on the principle 'non-liquet'." 64. In the process of interpreting a statute or a provision, it should also be kept in mind that it is the duty of the Court to conceive and perceive the true intention of the Legislature and in the words of Hon'ble Justice G.P. Singh, in his Book, "Interpretation of Statutes", "how far and to what ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers [: (1989) 2 SCC 754], the Constitution Bench, speaking through R. S. Pathak, CJ, has held thus:- "We are of opinion that a pronouncement of law by a Division Bench of this Court is binding on a Division Bench of the same or a smaller number of Judges, and in order that such decision be binding, it is not necessary that it should be a decision rendered by the Full Court or a Constitution Bench of the Court" 22. In Indian Oil Corporation Ltd., v. Municipal Corporation and Another [: AIR 1995 SC 1480], the Division Bench of the High Court had come to the conclusion that the decision in Municipal Corporation, Indore v. Smt. Ratna Prabha & Ors., [: AIR 1977 SC 308], was not a binding precedent in view of the later decisions of the co-equal Bench of this Court in Dewan Daulat Rai Kapoor v. New Delhi Municipal Committee [: AIR 1980 SC 541] and Dr. Balbir Singh v. Municipal Corporation Delhi [: AIR 1985 SC 339]. It is worth noting that the Division Bench of the High Court proceeded that the decision in Ratna Prabha (supra) was no longer good law and binding on it. The matter was referred to the Full Bench which overruled the decision passed by the Division Bench. When the matter tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to an earlier binding precedent may or may not be correct, but cannot be said to be per incuriam. (ii) The literal meaning of the expression "per incuriam" is "through want of care" {Vide: Mozley and Whitely's Law Dictionary. 7th Edition, page 255). In Black's Law Dictionary, 5th Edition, page 1025, it has been defined as "through inadvertence". In Halsbury's Laws of England. Fourth Edition, Volume 26, page 259 - Paragraph 578, it is stated thus: "A decision is given per incuriam when the court has acted in ignorance of a previous decision of its own or of a court of co-ordinate jurisdiction which covered the case before it, in which case it must decide which case to follow; or when it has acted in ignorance of a House of Lords decision, in which case it must follow that decision; or when the decision is given in ignorance of the terms of a statute or rule having statutory force. A decision should not be treated as given per incuriam, however, simply because of a deficiency of parties, or because the court had not the benefit of the best argument, and as a general rule, the only cases in which decisions should be held to be given per incuriam are those given in ignor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1944)2 All E.R. 293 at 300. Also see the observation of Lord Goddard in Moore v. Hewitt (1947)2 All E.R. 270 at 272 and Penny v. Nicholas (1950)2 All E.R. 89, 92A. Per incuriam are those decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the Court concerned, so that in such cases some part of the decision or some step in the reasoning on which it is based, is found, on that account to be demonstrably wrong. See Morelle Ltd. v. Wake-ling (1955)1 All E.R 708. Also see State of Orissa v. Tritaghur Paper Mills Co. Ltd. We are of the opinion that in view of the clear provisions of Section 7(2) of the Criminal Law Amendment Act, 1952 and Arts. 14 and 21 of the Constitution these directions were legally wrong." (vi) In Punjab Land Devt. & Reclamation Corporation Ltd. Chandigarh, etc., and several others v. Presiding Officer, Labour Court, Chandigarh etc., and several others (1990) 2 L.L.J. 70, the Supreme Court considered the meaning of the expression 'per incuriam' and explained thus: "43. We now deal with the question of per incuriam by reason of allegedly not following the Constitution Bench decisions. The L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the facts. The position and experience in this Court could not be much different keeping in view the need for proper development of law and justice." (vii) In State of U.P. and another vs. Synthetics and Chemicals Ltd., and another, reported in: 1991 (4) SCC 139, the Supreme Court held as follows:- "Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignorantiam. English Courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'per ignorantiam of a statute or other binding authority (Young vs. Bristol Aeroplane Co. Ltd., reported in 1944 (1) KB 718 : 1944 (2) All ER 293). Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law." (viii) In Gomthy Vs. State, reported in 1996 (2) KLT 91, it has been held that Judgment rendered ignoring the binding authority or basing on wrong understanding of law or a binding precedent, would be Judgment per incuriam. (ix) In Government of Andhra Pradesh and another vs. B.Satyanarayan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as misinterpreted a previous decision of the House of Lords, the Court of Appeal must follow its previous decision and leave the House of Lords to rectify the mistake." (Williams vs. Glasbrooks Bros. Ltd., reported in 1947 (2) All ER 884 (CA). (xi) In M/s. Nicks (India) Tools vs. Ram Sarat, reported in: AIR 2004 SC 4348 : 2004 (6) Supreme 417, the Supreme Court held that "In the instant case, we have already noticed the basic ground on which the Labour Court reduced the back wages was based on a judgment of the High Court of Punjab and Haryana which as further noticed by us, was overruled by a subsequent judgment of a Division Bench. Therefore, the very foundation of the conclusion of the Labour Court having been destroyed, the appellant could not derive any support from the above cited judgments of that Court." (xii) In Nirmal Jeer Kaur vs. State of M.P. and another, reported in : 2004 (7) SCC 558, on the principles of per incuriam, at paragraph 21, the Apex Court observed as follows:- "Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignorantiam. English Courts have developed this principle in relaxation of the rule of stare de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... expressed by Lord Greene, the Master of Rolls in the Court of Appeal on the principle of per incuriam (see the speech of Lord Viscount Simon in Bristol Aeroplane Co. Ltd. case, reported in 1946 AC 16 (HL), AC at p. 169 of the Report). 30. Those principles have been followed by the Constitution Bench of this Court in Bengal Immunity Co. Ltd. v. State of Bihar reported in: AIR 1955 SC 661 : 1955 (2) SCR 603 (see the discussion in SCR at pp. 622 and 623 of the Report). 31. The same principle has been reiterated by Lord Evershed, Master of Rolls, in Morelle Ld. v. Wakeling, reported in 1955 (4) 2 QB 379(CA), QB at p. 406. The principle has been stated as follows: "...As a general rule the only cases in which decisions should be held to have been given per incuriam are those of decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned; so that in such cases some part of the decision or some step in the reasoning on which it is based is found, on that account, to be demonstrably wrong." 32. In State of U.P. v. Synthetics and Chemicals Ltd. reported in: 1991 (4) SCC 139, this Court held (SCC p. 162, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Procedure, dealing with appointment of Sessions, Additional and Assistant Sessions Judges, powers under Section 10(3) Cr.P.C., powers under Sections 193 and 194 Cr.P.C., to make over a session case, powers conferred under Sections 374 and 381(2) Cr.P.C., in making over an appeal to the Additional Sessions Judges, powers conferred on the Additional Sessions Judge, under Section 400 Cr.P.C., administrative and judicial powers under Sections 407 to 410 Cr.P.C., in the matter of transfer, withdrawal or recalling of a case or an appeal, as the case may be and a catena of decisions, before answering two questions of law, extracted supra. 72. In addition to the above, the learned Judge has extensively considered the dictionary meaning of the words, "subordinate" and "lower" from various reputed dictionaries. The learned Judge has also considered the dictionary meaning of the word, "transfer" in Thesaurus and Law Lexicon. Judgment of various Courts, including Radhey Shyam's case (cited supra), Reny George's case (cited supra) and other decisions, have been considered and the learned Judge has taken the view that a Court of Additional Sessions Judge, is not a subordinate Court or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Court of Session itself. Therefore, the Sessions judge cannot transfer a case from his own Court to his own Court. 77. The judgment of the Hon'ble Mr. Justice M. Karpagavinayagam, in Devarasu's case (cited supra), cannot at any stretch of imagination, be construed and argued, as per incuriam. In the light of the decisions considered, the contention of Mr. S. Prabhakaran, learned counsel for the petitioner that the decision in Devarasu's case (cited supra), is per incuriam, is rejected. I am constrained to refer the observations of the Hon'ble Justice M. Srinivasan, as to how, the expression, "per incuriam" is loosely used. "But during the last three decades, Courts have found it convenient very often to throw away earlier rulings with the label per incuriam. We notice with anguish that at times the meaning of the expression had not been understood properly, which has led to the misuse of the same, if not abuse. One such instance is found in Abdul Malick v. The Collector of Dharmapuri and Ors.: (1968)1 M.L.J. 9, where a single Judge of this Court held that a judgment rendered at the admission stage without notice to the opposite party was per incuriam. That is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s its ratio and not every observation found therein nor what logically follows from the various observations made in it. On this topic, this is what Earl of Halsbury LC said in Quinn v. Leathem, reported in 901 AC 495. 'Now before discussing the case of Allen vs. Flood, reported in 1898 AC 1 and what was decided therein, there are two observations of a general character which I wish to make, and one is to repeat what I have very often said before, that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical code, whereas every lawyer must acknowledge that the law is not always logical at all." It is not profitable task to extract a sentence here and there from a judgment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which alone has the force of law and which, when it is clear what it was, is binding. It is only the principle laid down in the judgment that is binding law under Article 141 of the Constitution. A deliberate judicial decision arrived at after hearing an argument on a question which arises in the case or is put in issue may constitute a precedent, no matter for what reason, and the precedent by long recognition may mature into rule of stare decisis. It is the rule deductible from the application of law to the facts and circumstances of the case which constitutes its ratio decidendi. Therefore, in order to understand and appreciate the binding force of a decision it is always necessary to see what were the facts in the case in which the decision was given and what was the point which had to be decided. No judgment can be read as if it is a statute. A word or a clause or a sentence in the judgment cannot be regarded as a full exposition of law. Law cannot afford to be static and therefore, Judges are to employ an intelligent technique in the use of precedents. (iii) In State of Punjab v. Devans Modern Breweries Ltd., reported in: (2004) 11 SCC 26, the Hon'ble Supreme Court expl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h. (See Pradip Chandra Parija v. Pramod Chandra Patnaik, reported in: 2003 (7) SCC 01, SCC at paras 6 and 7; followed in Union of India v. Hansoli Devi, reported in : 2002 (7) SCC 01, SCC at para 2.) But no decision can be arrived at contrary to or inconsistent with the law laid down by the coordinate Bench. Kalyani Stores, reported in: AIR 1966 SC 1686 and K.K. Narula, reported in: AIR 1967 SC 1368, both have been rendered by the Constitution Benches. The said decisions, therefore, cannot be thrown out for any purpose whatsoever; more so when both of them if applied collectively lead to a contrary decision proposed by the majority. 343. It is also trite that the binding precedents which are authoritative in nature and are meant to be applied should not be ignored on application of the doctrine of sub silentio or per incuriam without assigning specific reasons therefor. I, for one, do not see as to how Kalyani Stores and K.K. Narula read together can be said to have been passed sub silentio or rendered per incuriam. 82. As stated supra, while considering the power of the Court of Sessions, to take cognizance of an offence, exclusively triable by the Court of Sessions and other of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Those words must be expounded in their natural and ordinary sense. When a language is plain and unambiguous and admits of only one meaning no question of construction of statute arises, for the Act speaks for itself. Courts are not concerned with the policy involved or that the results are injurious or otherwise, which may follow from giving effect to the language used. If the words used are capable of one construction only then it would not be open to the Courts to adopt any other hypothetical construction on the ground that such construction is more consistent with the alleged object and policy of the Act. In considering whether there is ambiguity, the Court must look at the statute as a whole and consider the appropriateness of the meaning in a particular context avoiding absurdity and inconsistencies or unreasonableness which may render the statute unconstitutional." 87. In Nathi Devi's case, it is further held that, "It is equally well-settled that in interpreting a statute, effort should be made to give effect to each and every word used by the Legislature. The Courts always presume that the Legislature inserted every part thereof for a purpose and the legislative inten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 408 Cr.P.C., has the power to transfer an appeal from one Criminal Court to another Criminal Court, in his Sessions Division. (2) If so, under Section 408 Cr.P.C., whether he is empowered to transfer a case or an appeal, after the commencement of trial or the appeal, as the case may be. These are some of the issues, which are raised in the present revision cases. 92. What is the binding effect of the judgments of other High Courts, larger in composition, on the issue, on the Subordinate Courts, within the territorial jurisdiction of this Court, is also an issue, called upon to be addressed. 93. Let me consider some more judgments on the interpretation of the statutes, (i) In Justice G.P. Singh's Principles of Statutory Interpretation (11th Edn., 2008), the learned author while referring to judgments of different Courts states (at page 134) that procedural laws regulating proceedings in court are to be construed as to render justice wherever reasonably possible and to avoid injustice from a mistake of court. He further states (at pages 135 and 136) that: "Consideration of hardship, injustice or absurdity as avoiding a particular construction is a rule which must be applied w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ute devoid of any meaning or application." (vii) What is the spirit of law, Hon'ble Mr. Justice S.R. Das in Rananjaya Singh v. Baijnath Singh reported in: AIR 1954 SC 749, said that, "The spirit of the law may well be an elusive and unsafe guide and the supposed spirit can certainly not be given effect to in opposition to the plain language of the Sections of the Act." (viii) In Hari Prasad Shivashanker Shukla v. A.D. Divelkar reported in AIR 1957 SC 121, the Apex Court held that, "It is true that an artificial definition may include a meaning different from or in excess of the ordinary acceptation of the word which is the subject of definition; but there must then be compelling words to show that such a meaning different from or in excess of the ordinary meaning is intended, Where, within the framework of the ordinary acceptation of the word, every single requirement of the definition clause is fulfilled, it would be wrong to take the definition as destroying the essential meaning of the word defined." (ix) In Kanai Lal Sur v. Paramnidhi Sadhukhan reported in: AIR 1957 SC 907, the Supreme Court held that, "it must always be borne in mind that the first and primary rule of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... struction does not justify an extension of the statute's scope beyond the contemplation of the Legislature. The fundamental and elementary rule of construction is that the words and phrases used by the Legislature shall be given their ordinary meaning and shall be constructed according to the rules of grammar. When the language is plain and unambiguous and admits of only one meaning, no question of construction of a statute arises, for the Act speaks for itself. It is a well recognized rule of construction that the meaning must be collected from the expressed intention of the Legislature." (xiii) In Namamal v. Radhey Shyam reported in: AIR 1970 Rajasthan 26, the Court held as follows: "It was observed by Pollock C.B. in Waugh v. Middleton, 1853-8 Ex 352 (356):--"It must, however, be conceded that where the grammatical construction is clear and manifest and without doubt, that construction ought to prevail, unless there be some strong and obvious reason to the contrary. But the rule adverted to is subject to this condition, that however plain the apparent grammatical construction of a sentence may be, if it be properly clear from the contents of the same document that the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... some factual situation and the legal consequences ensuing from it. Whether the general description is wide or narrow, it will have some limits. The question before a court of law in dealing with a statute is whether the factual situation proved before it falls within the general description given in the statute. A real difficulty in determining the right answer can be said to arise from an "ambiguity" in the statute. It is in this sense that the words, "ambiguity" and "ambiguous" are widely used in judgments. (xv) In Commissioner of Sales Tax v. M/s. Mangal Sen Shyamlal reported in: 1975 (4) SCC 35 : AIR 1975 SC 1106, the Apex Court held that, "A statute is supposed to be an authentic repository of the legislative will and the function of a court is to interpret it "according to the intent of them that made it". From that function the court is. not to resile. It has to abide by the maxim, "ut res magis valeat quam pereat", lest the intention of the legislature may go in vain or be left to evaporate into thin air." (xvi) In C.I.T., Madras v. T. Sundram Iyengar (P) Ltd., reported in: 1976 (1) SCC 77, the Supreme Court held that, if the language of the statute is clear and unambiguo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd others reported in: 1993 Supp (3) SCC 716 : AIR 1993 SC 2288, the Apex Court held that, where the words of the statute are plain and clear, there is no room for applying any of the principles of interpretation, which are merely presumption in cases of ambiguity in the statute. The Court would interpret them as they stand. (xxii) In Nasiruddin v. Sita Ram Agarwal reported in : (2003) 2 SCC 577, the Supreme Court held as follows: "35. In a case where the statutory provision is plain and unambiguous, the court shall not interpret the same in a different manner, only because of harsh consequences arising therefrom.... 37. The court's jurisdiction to interpret a statute can be invoked when the same is ambiguous. It is well known that in a given case the court can iron out the fabric but it cannot change the texture of the fabric. It cannot enlarge the scope of legislation or intention when the language of the provision is plain and unambiguous. It cannot add or subtract words to a statute or read something into it which is not there. It cannot rewrite or recast legislation. It is also necessary to determine that there exists a presumption that the legislature has not u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the words or used the language can be approached for clarification, the legislature cannot be approached as the legislature, after enacting a law or Act, becomes functus officio so far as that particular Act is concerned and it cannot itself interpret it. No doubt, the legislature retains the power to amend or repeal the law so made and can also declare its meaning, but that can be done only by making another law or statute after undertaking the whole process of law-making. 14. Statute being an edict of the legislature, it is necessary that it is expressed in clear and unambiguous language..... 15. Where, however, the words were clear, there is no obscurity, there is no ambiguity and the intention of the legislature is clearly conveyed, there is no scope for the court to innovate or take upon itself the task of amending or altering the statutory provisions. In that situation the judges should not proclaim that they are playing the role of a lawmaker merely for an exhibition of judicial velour. They have to remember that there is a line, though thin, which separates adjudication from legislation. That line should not be crossed or erased. This can be vouchsafed by "an alert reco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aning, the Court would attempt to resolve the ambiguity in a manner consistent with the purpose of the provision, having regard to the great consequences of the alternative constructions." (xxvii) In Adamji Lookmanji & Co. v. State of Maharashtra reported in: AIR 2007 Bom. 56, the Bombay High Court held that, when the words of status are clear, plain or unambiguous, and reasonably susceptible to only meaning, Courts are bound to give effect to that meaning irrespective of the consequences. The intention of the legislature is primarily to be gathered from the language used. Attention should be paid to what has been said in the statute, as also to what has not been said. (xxviii) In State of Haryana v. Suresh reported in: 2007 (3) KLT 213, the Supreme Court held that, "One of the basic principles of Interpretation of Statutes is to construe them according to plain, literal and grammatical meaning of the words. If that is contrary, to or inconsistent with any express intention or declared purpose of the Statute, or if it would involve any absurdity, repugnancy or inconsistency, the grammatical sense must then be modified, extended or abridged, so far as to avoid such an inconvenie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... guous, it would not be proper for the courts to add any words thereto and evolve some legislative intent, not found in the statute. Reference in this regard may be made to a recent decision of this Court in Ansal Properties & Industries Ltd. v. State of Haryana [: 2009 (3) SCC 553]. 180. Further, it is a well-established principle of statutory interpretation that the legislature is specially precise and careful in its choice of language. Thus, if a statutory provision is enacted by the legislature, which prescribes a condition at one place but not at some other place in the same provision, the only reasonable interpretation which can be resorted to by the courts is that such was the intention of the legislature and that the provision was consciously enacted in that manner. In such cases, it will be wrong to presume that such omission was inadvertent or that by incorporating the condition at one place in the provision the legislature also intended the condition to be applied at some other place in that provision." (xxxiii) In Satheedevi v. Prasanna reported in: (2010) 5 SCC 622, the Supreme Court held as follows: "12. Before proceeding further, we may notice two well-recognised ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it meaningful and workable so as to achieve the legislative object, when there is vagueness, ambiguity or absurdity. The purpose of interpretation is not to make a provision what the Judge thinks it should be, but to make it what the legislature intended it to be." (xxxv) In Delhi Airtech Services (P) Ltd. v. State of U.P., reported in: (2011) 9 SCC 354, the Supreme Court, while dealing with a provision under Section 17(3-A) of the Act, held that, "Therefore, the provision of Section 17(3-A) cannot be viewed in isolation as it is an intrinsic and mandatory step in exercising special powers in cases of emergency. Sections 17(1) and 17(2) and 17(3-A) must be read together. Sections 17(1) and 17(2) cannot be worked out in isolation. 55. It is well settled as a canon of construction that a statute has to be read as a whole and in its context. In Attorney General v. Prince Ernest Augustus of Hanover [1957 AC 436], Lord Viscount Simonds very elegantly stated the principle that it is the duty of court to examine every word of a statute in its context. The learned Law Lord further said that in understanding the meaning of the provision, the Court must take into consideration "not onl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itional Sessions Court also, then the Section 408, has to be read, as conferring powers on the Sessions Judge, to withdraw any case, even after the commencement of the trial of a case. Notwithstanding the decision in Devarasu's case (cited supra), I have made an attempt to find out the legislative intent, in Section 408 Cr.P.C. Let me consider few decisions, as to how, a Section has to be read and interpreted. (i) In Samrao v. District Magistrate, Thana reported in: AIR 1952 SC 324, the Apex Court held that, "It is the duty of the Courts to give effect to the meaning of an Act, when the meaning can be fairly gathered from the words used, that is to say, if one construction will lead to an absurdity while another will give effect to what common sense would show was obviously intended, the construction which would defeat the ends of the Act, must be rejected even if the same words used in the same section, and even the same sentence, have to be construed differently. Indeed the law goes so far as to require the Courts sometimes even to modify the grammatical and ordinary sense of the words if by doing so absurdity and inconsistency can be avoided." (ii) It is well settled tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. Babubhai Shankerlal Pandya reported in: 1987 (1) SCC 606, the Supreme Court, at Paragraph 4, held as follows: "It is an elementary rule that construction of a section is to be made of all parts together. It is not permissible to omit any part of it. For, the principle that the statute must be read as a whole is equally applicable to different parts of the same section........ It also provides for the manner of the exercise of such power........... Sub-section (1) of Section 36 is made subject to the fulfilment of the conditions prerequisite," (viii) In Balasinor Nagrik Co-operative Bank's case (cited supra), the Apex Court held that precise functions of the two provisos to a Section has to be read together. The Supreme Court held that sub-Section (1) of Section 36 is made subject to defeasance clause engrafted in the first provision. If the guiding principle enunciated in Balasinor Nagrik Co-operative Bank's case (cited supra), is applied to Section 408 Cr.P.C., then it would certainly convey that the Sessions Judge can transfer only a case from a lower Court and not from a Court of equal jurisdiction. (ix) In T.N. State Electricity Board v. Central Electricity Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Paragraph 25 of the judgment in Noida Entrepreneurs Association v. Noida reported in: 2011 (6) SCC 58, the Supreme Court held as follows: "22. It is a settled proposition of law that whatever is prohibited by law to be done, cannot legally be affected by an indirect and circuitous contrivance on the principle of "quando aliquid prohibetur, prohibetur omne per quod devenitur ad illud", which means" "whenever a thing is prohibited, it is prohibited whether done directly or indirectly". (See: Swantraj & Ors. v. State of Maharashtra,: AIR 1974 SC 517; Commissioner of Central Excise, Pondicherry v. ACER India Ltd.,: (2004) 8 SCC 173; and Sant Lal Gupta & Ors. v. Modern Co-operative Group Housing Society Ltd. & Ors.,: JT (2010) 11 SC 273). At Paragraph 26 in Noida Entrepreneurs Association's case (cited supra), the Apex Court, further held that, "23. In Jagir Singh v. Ranbir Singh & Anr.: AIR 1979 SC 381, this Court has observed that an authority cannot be permitted to evade a law by "shift or contrivance." While deciding the said case, the Court placed reliance on the judgment in Fox v. Bishop of Chester, (1824) 2 B &C 635, wherein it has been observed as under:- "To carry ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "any case or appeal", are employed. Thus, there is an inbuilt restraint in Section 409(2) Cr.P.C., in exercise of the power conferred on the Sessions Judge and he cannot recall or withdraw any case or appeal, after the commencement of the trial or hearing of an appeal, pending before the Additional Sessions Judge and that is why, the Legislature is cautious in stating that such power can be exercised, at any time, before the trial of the case or hearing of the appeal. 100. The expression "any particular case" used in Section 408(1) Cr.P.C., should be given its natural meaning and effect. Hon'ble Justice Lahoti, in Harbhan Singh v. Press Council of India reported in: AIR 2002 SC 1351, observed as follows: "Legislature chooses appropriate words to express what it intends, and therefore, must be attributed with such intention as is conveyed by the words employed so long as this does not result in absurdity or anomaly or unless material - intrinsic or external - is available to permit a departure from the rule." 101. The words "criminal Court" in Sub-Section (1) of Section 408 Cr.P.C., must be read in the context in which it is explained in sub-Section (2) of the same Section, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lating to the subject-matter. The rule of "ex visceribus actus" should be resorted to in a situation of this nature." (iv) In State of Gujarat v. Salimbhai Abdulgaffar Shaikh reported in: 2003 (8) SCC 50, the Supreme Court held that, "Broadly speaking, therefore, an appeal is a proceeding taken to rectify an erroneous decision of a Court by submitting the question to a higher Court....... ........It is well settled principle that the intention of the legislature must be found by reading the Statute as a whole. Every clause of Statute should be construed with reference to the context and other clauses of the Act, so as, as far as possible, to make a consistent enactment of the whole Statute. It is also the duty of the Court to find out the true intention of the legislature and to ascertain the purpose of Statute and give full meaning to the same. The different provisions in the Statute should not be interpreted in abstract but should be construed keeping in mind the whole enactment and the dominant purpose that it may express." 102. Context in which the words, 'case' and 'appeal', are employed in Section 409 Cr.P.C., is for withdrawal or recall, which is the ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Sessions Judge can transfer a case from one Court to another Criminal Court, in his Sessions Division. In Shri Ram Saha v. State reported in: AIR 2004 SC 5080, that in applying a purposive construction a word of caution is necessary that the text of the statute is not to be sacrificed and the Court cannot rewrite the statute on the assumption that whatever furthers the purpose of the Act must have been sanctioned. 105. In Re: District and Sessions Judge v. Unknown reported in: 2005 (3) MPHT 411, a Hon'ble Division Bench of the Madhya Pradesh High Court held that Section 408 is not controlled by Section 409(2) Cr.P.C., I am in respectful agreement with Their Lordships' view. But with an exception that the power of transfer from one Criminal Court to another Criminal Court, can be exercised only with reference to, "any particular case", on the file of the lower Court and not any case or appeal from the Court of equal jurisdiction. Sections 408 and 409 of the Code of Criminal Procedure, can certainly be reconciled, only to the limited extent. 106. Keeping the broad principle in interpreting a statute and the Sections, in the backdrop and if the expressions in sub-Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the hierarchical set up, as provided for, in Sections 406 to 408 of the Code, remedy is available to the party, who intends to move the Sessions Judge, if it is a case, in the lower Court and not of equal jurisdiction. Expedient for the ends of justice, is also one of the grounds, engrafted in Section 407 Cr.P.C., when an application is filed for transfer in the High Court. This provision applies to all the Courts, subordinate to High Court and is not restrictive, whereas, as per Section 408, power of the Sessions Judge to transfer a case from one Criminal Court to another, in the same Sessions Division, can be exercised only, if a case is pending in the lower Court. 110. On the aspect, as to whether, the Government or the High Court has the power to transfer a case, from the Court of a Special Judge to another Criminal Court, a Hon'ble Division Bench in Rattilal v. M. Nanavati v. State of Delhi reported in: 1954 Crl.L.J. 1252, at Paragraphs 7 and 8, held as follows: "7. Section 526, Criminal P.C., and Clause 22, Letters Patent, empower the High Court to transfer any criminal case from any Court subordinate to its authority to any other Court of equal or superior jurisdicti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Cr.P.C. 113. Let me consider, as to whether, the Courts can add or delete or substitute any word to a statute or section. (i) In CIT v. Badhraja and Company reported in: 1994 Supp (1) SCC 280, the Apex Court held that an object oriented approach, however, cannot be carried to the extent of doing violence to the plain meaning of the Section used by rewriting the Section or substituting the words in the place of actual words used by the legislature. (ii) In Dadi Jagannadham v. Jammulu Ramulu reported in: (2001) 7 SCC 71, the Supreme Court held that, "13. We have considered the submissions made by the parties. The settled principles of interpretation are that the court must proceed on the assumption that the legislature did not make a mistake and that it did what it intended to do. The court must, as far as possible, adopt a construction which will carry out the obvious intention of the legislature. Undoubtedly if there is a defect or an omission in the words used by the legislature, the court would not go to its aid to correct or make up the deficiency. The court could not add words to a statute or read words into it which are not there, especially when the literal reading pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of any corrigendum to the said declaration has also to be excluded. We will be adding words to the statute if we put such interpretation to Section 11-A, and it is well settled that the court should not add or delete words in a statute. 114. When the word "appeal" is conspicuously absent in Section 408 Cr.P.C., then the circumstances stated in Section 408(2) can be made applicable, only to any particular case and not to an appeal, pending in any Court. In Surendra Kumar v. Vijayan reported in: 2005 (4) KLT 475, the Hon'ble Bench of the Kerala High Court, while interpreting Section 408 Cr.P.C., has observed as follows: "The Presiding Officer of a District Court is the District Judge. The District Judge on the civil side is empowered to transfer any case at any stage from one Additional District Court. If so why should there be a restricted meaning for transfer on the criminal side for the only reason that a provision akin to Section 24(3) regarding subordination is not expressly provided under the Code of Criminal Procedure? Should not that enabling provision be read into under Section 408 since Section 408 appears under Chapter XXXI of the Code dealing with the transfer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be put on a particular provision makes a consistent enactment of the whole statute. This would be more so if literal construction of a particular clause leads to manifestly absurd or anomalous results which could not have been intended by the Legislature. "An intention to produce an unreasonable result", said Danackwerts, L.J. in Artemiou v. Procopiou (1966 1 QB 878), "is not to be imputed to a statute if there is some other construction available". Where to apply words literally would "defeat the obvious intention of the legislature and produce a wholly unreasonable result" we must "do some violence to the words" and so achieve that obvious intention and produce a rational construction. (Per Lord Reid in Luke v. IRC (1963 AC 557) where at p. 577 he also observed: "this is not a new problem, though our standard of drafting is such that it rarely emerges". 22. It is then true that, "when the words of a law extend not to an inconvenience rarely happening, but due to those which often happen, it is good reason not to strain the words further than they reach, by saying it is causus omissus, and that the law intended quae frequentius accidunt." "But," on the other hand, "it is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or "lower" in Section 408(1) Cr.P.C., or there is any defect in not mentioning the words as, "subordinate criminal Court" or the words "lower Court" mentioned in sub-Section (2) of Section 408 would step in aid of interpreting the words "Criminal Court" used in sub-Section (1) of Section 408 Cr.P.C. Even if it is a defective phrasing, as per the decision of the Privy Council in Crawford v. Spooner reported in: (1846) 6 Moore PC 1, "We cannot aid the Legislature's defective phrasing or an Act, we cannot add or mend and, by construction made up deficiencies, which are left there." 120. In the light of the decisions of the Courts, as to how, the words used within different parts of the Section, have to be read and interpreted harmoniously, with the other provisions of the statute, if the latter part of a Section supplements the former, and is also explanatory, then there is no difficulty in coming to a conclusion, that the omission of the word "subordinate" in sub-Section (1) of Section 408 Cr.P.C., is intentional. If both the Sub-Sections are conjointly read, then it would convey the meaning that the words, "Criminal Court" used in sub-Section (1) of Section 408 Cr.P.C., means ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rime, and a warrant of arrest is issued, or (2) when grand jury has returned an indictment." [Union of India v. Madan Lal Yadav,: AIR 1996 SC 1340 at 1346]. 128. Commencement of trial, until and unless the competent authority convenes the GCM and the GCM assembles to consider the charge and examines whether they would proceed with the trial, the trial does not commence. The preliminary investigation conducted in such cases do not amount to commencement of trial, Shiv Prasad Panday v. Director CBI,: AIR 2003 SC 1974 (1980) : (2003) 11 SCC 508, [Border Security Force Act, 1968, ss. 141, 84). 129. Trial, the hearing of a cause, civil or criminal, before a judge who has jurisdiction over it, according to the laws of the land. 'Trial' is to find out by due examination the truth of the point in issue or question between the parties, whereupon judgment may be given' (Co.Litt.124 b). 130. Trial, is used in the sense of reference to a stage after the inquiry, State of Bihar v. Ram Naresh Pandey,: AIR 1957 SC 589 : 1957 SCC 282 : 1957 SCR 279 : 1957 SCJ 386 : 1957 SCA 350 : 1957 ILR 36 Pat 513. 131. Trial, is the examination by a competent court of the facts or laws in disput ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nation and determination of issues between parties to action, whether they be issues of law or of fact, before a court that has jurisdiction... A judicial examination, in accordance with law of the land, of a cause, either civil or Criminal, of the issues between the parties, whether of law or facts, before a court that has proper jurisdiction". In Webster's Comprehensive Dictionary International Edition, at page 1339, the word 'trial' is defined thus: "....The examination, before a tribunal having assigned jurisdiction, of the facts or law involved in all issue in order to determine that issue. A former method of determining guilt or innocence by subjecting the accused to physical tests of endurance, as by ordeal or by combat with his accuser... In the process of being tried or tested... Made or performed in the course of trying or testing...." The word 'commence' is defined in Collins English Dictionary to mean "to start or begin; come or cause to come into being, operation etc." In Black's Law Dictionary it is defined to mean: "to initiate by performing the first act or step. To begin, institute or start Civil action in most jurisdictions is commenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y and inquiry must always be a forerunner to the trial, Moly v. State of Kerala: (2004) 4 SCC 584 (587) [Criminal PC, 1973, S. 2(g)]. 138. In Jaspal Singh v. Municipal Corporation of Delhi reported in: AIR 1972 Delhi 230, the Court held that, "The hearing of the suit would be on a date to which it may have been adjourned to be taken up by the Court for applying its mind to it. Where the suit stands adjourned for merely acquiring the knowledge as to what has happened in a pending transfer application moved before the District Judge, then it cannot bs held that the adjourned date would be for hearing of the suit. No authority has been cited before me which may persuade me to any other view." 139. In Sham Lal v. Rajinder Kumar Modi reported in 1990 (2) SCC 187, the Supreme Court held as follows: "7. Word "Hearing" can admit of a very wide and liberal interpretation. It may include recording of evidence, consideration of arguments on some aspects of suit, examination of various question relating to suit and so on. The essential prerequisite is whether the Judge is applying his mind to some aspect of the case. If he is conducting some routine work or passing interlocutory orders, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y other Court of competent jurisdiction. 143. At stated supra, the Sessions Judge is not empowered to withdraw or recall any case, after the commencement of the trial, exercising his administrative powers. High Courts of Gauhati, Kerala and Madhya Pradesh have taken a different view. In the latter paragraphs of this Judgment, I have also considered a case, where a learned single Judge of this Court, has rejected a prayer for transfer of a case, after the trial has commenced. 144. I am of the humble opinion that the higher Courts, have to consider, what is the logic and reason of the Legislature in engrafting the words, in Section 408(2) Cr.P.C., i.e., on the report of the lower Court", followed by the later portion of the sentence, "or on the application of a party interested, or on his own initiative." 145. In the light of the law declared by the Apex Court, on the interpretation of statutes or the Section, this Court is of the humble opinion that a Section or any part in the section, has to be read, as a whole and each word, as a whole, used in Section has to be given its meaning to the context, in which, it is used. Each word employed in the legislation has to be given the pl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ular case or appeal or class of appeals, from a Criminal Court, subordinate to High Court's authority, to any other such criminal Court of equal or superior jurisdiction. 148. Sub-Sections (1) and (2) of Section 407 Cr.P.C., state that on the application of a party interested, he can seek for an order to be passed by the High Court that any particular case or appeal, or class of cases or appeals, be transferred from a Criminal Court subordinate to its authority to any other such Criminal Court of equal or superior jurisdiction; that any particular case be committed for trial to a Court of Session; or that any particular case or appeal be transferred to and tried before itself, for anyone of the reasons, in sub-Clauses (a), (b) or (c), which reads as follows: (a) that a fair and impartial inquiry or trial cannot be had in any Criminal Court subordinate thereto, or (b) that some question of law of unusual difficulty is likely to arise, or (c) that an order under this section is required by any provision of this Code, or will tend to the general convenience of the parties or witnesses, or is expedient for the ends of justice. 149. Thus, the power of the High Court to order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ises demised; enables him to resume aft." Even in the Oxford Dictionary "any has been taken to mean "all." " (ii) The word 'any' may have one of the several meanings according to the circumstances, it may mean 'all', 'each', 'every', 'some', or 'one' or more out of several, whether the expression 'any' used in the statute is indicative of singular or the plural will depend upon the context of each case. [Pashupati Nath Singh v. State 1978 Pat. LJR 578 (581); 1978 BLJ 593]. (iii) In Wharton's Law Lexicon, the word 'any' means "some; one of many; and indefinite number. One indiscriminately or whatever kind or quantity. Word 'any' has a diversity of meaning and may be employed to indicate 'all' or 'every' as well as 'some' or 'one' and its meaning in a given statute depends upon the context and the subject-matter of the statute. It is often synonymous with 'either', 'every' or 'all'. Its generality may be restricted by the context;' [Black's Law Dictonary, 5th Edn.,]. [Ref. Shri Balaganesna Metals v. M.N. Shanmugham Chetty,: (1987) 2 SCC 707 (71 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trial, while the latter is a Common Law process which involves matter of law only for re-examination; it is added, however, that the term "appeal" is used in a comprehensive sense so as to include both what is described technically as an appeal and also the common law writ of error; as put by Lord Westbury in Attorney-General v. Sillem, 10 HLC 704, the right of appeal is the right of entering a superior Court and invoking its aid and interposition to redress the error of the Court below. As Mr. Justice Subramania Ayyar observed in Chappan v. Moidin, 22 Mad 68 at.p.80 the two things which are required to constitute appellate jurisdiction are the existence of the relation of superior and inferior Court and the power, on the part of the former, to review decisions of the latter. (vii) In the Commentary on American jurisprudence by Andrews, Volume II, Page 1510, it is pointed out that appellate procedure embraces two distinct modes of its exercise, namely, first, the record of the inferior tribunal may be brought to the superior tribunal and the decision reviewed, affirmed, reversed or modified; or, secondly, the superior tribunal may check the exercise or usurpation of power in infer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubordinate to a superior tribunal or forum in order to test and scrutinise the correctness of the impugned decision. It amounts in essence and pith to a complaint to a higher forum that the decision of the subordinate tribunal is erroneous and therefore liable to be rectified or set right." (xiv) An appeal, in substance, is in the nature of a judicial examination of a decision by a higher Court of a decision of an inferior Court, to rectify any possible error in the order under appeal. V.C. Shukla, State Through C.B.I: AIR 1980 SC 962, 995. (xv) Contrasted with "review": "Appeal", in the context of an ouster clause means re-examination by a superior judicial authority of both findings of fact and conclusions of law as to the legal consequences of those facts made by an inferior tribunal in the exercise of a jurisdiction conferred upon it by statute to decide questions affecting the legal rights of others, and the substitution of the superior judicial authority's own findings of fact and conclusions of law for those of the inferior tribunal. In 'review' the function of the superior judicial authority is limited to re-examining the inferior tribunal's conclusions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ile appeal. Thus, making of an application for leave to appeal cannot be regarded as "appeal" itself......... .....Secretary of State v. British India Steam Navigation Co.,: (1911) 9 Ind Cas 183 (Cal).... In this connection, the learned Judges observed, "Now the term 'Appeal' is defined in the Oxford Dictionary, Volume 1, page 398, as the transference of a case from an inferior to a higher Court or tribunal in the hope of reversing or modifying the decision of the former.' Reference was also made to the definition of the term "appeal" contained in the Law Dictionary by Sweet where it was defined "as a proceeding taken to rectify an erroneous decision of a Court by submitting the question to a higher Court, or Court of appeal." This case also cannot be of any assistance to us in deciding the point argued before us." (xviii) In Wharton's Law Lexicon, the word, "case" includes a suit or any proceeding, before a court. [Legal Services Authorities Act, 1987 (39 of 1987) s. 2(1)(a)] It also means - (1) A trial, (2) A trial involving some point of law so important as to be published in Law Reports for future use a s a precedent, and (3) A statement of facts and documents ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngs but in the context of the sub-section it must mean a proceeding which at the end results either in discharge, conviction, or acquittal of an accused person. (xxiii) In Baldevdas Shivlal v. Filmistan Distributors (India) Pvt. Ltd., reported in: AIR 1970 SC 406, the Supreme Court held that, "The expression "case" is not limited in its import to the entirety of the matter in dispute in an action. This Court observed in Major S.S. Khanna v. Brig. F.J. Dillon [ (1964) 4 SCR 409 : AIR 1964 SC 497] that the expression "case" is a word of comprehensive import : it includes a civil proceeding and is not restricted by anything contained in s. 115 of the Code to the entirety of the proceeding in a civil court. To interpret the expression "case" as an entire proceeding only and not a part of the proceeding imposes an unwarranted restriction on the exercise of powers of superintendence and may result in certain cases in denying relief to the aggrieved litigant where it is most needed and may result in the perpetration of gross injustice. But it was not decided in Major S.S. Khanna's case that every order of the Court in the course of a suit amounts to a case decided. A case may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... different context, than in Section 409(2) Cr.P.C. It is also to understand that the word "case" used in Section 408(1) Cr.P.C., should not be interpreted to mean, appeal, as included in Section 408(1) Cr.P.C. 153. There is a conspicuous omission of the word, "appeal" in the proviso to Section 407(2) Cr.P.C. If the legislature had intended to include that an appeal pending on the file of one Criminal Court, can be transferred to another Criminal Court, in the same Sessions Division, by the Sessions Judge, on the application made by an interested person, then the word, "appeal" would have been included in the proviso also. The power to transfer an appeal from one Criminal Court to another, has been given only to the High Court and not to the Sessions Judge. That is why, while engrafting Section 408 Cr.P.C., the Legislature has framed Section 408(1), in the following manner that, "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". 154. Proviso to Section 407 and Section 408(1) Cr.P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which the High Court may award under sub-section (7). (5) Every accused person making such application shall give to the Public Prosecutor notice in writing of the application, together with a copy of the grounds on which it is made; and no order shall be made on the merits of the application unless at least twenty-four hours have elapsed between the giving of such notice and the hearing of the application. (6) Where the application is for the transfer of a case or appeal from any subordinate Court, the High Court may, if it is satisfied that it is necessary so to do in the interests of justice, order that, pending the disposal of the application, the proceedings in the subordinate Court shall be stayed, on such terms as the High Court may think fit to impose: Provided that such stay shall not affect the subordinate Court's power of remand under section 309. (7) Where an application for an order under sub-section (1) is dismissed, the High Court may, if it is of opinion that the application was frivolous or vexatious, order the applicant to pay by way of compensation to any person who has opposed the application such sum not exceeding one thousand rupees as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , this Court is of the view that no appeal can be transferred by the Sessions Judge, from one Criminal Court to another Criminal Court of equal jurisdiction, under Section 408 Cr.P.C., and it can be recalled or withdrawn, before the commencement of hearing. 162. By legal fiction, the Sessions Court can, at best, (1) transfer any particular case from a Criminal Court, subordinate to its authority, to an equal, subordinate Court or (2) if such case, is pending on the lower Court, to any superior Court, and (3) not a case pending in the Court, exercising equal jurisdiction. 163. Powers conferred on the High Court, under Section 407 Cr.P.C., cannot be imported to Section 408 Cr.P.C., not conferred on the Sessions Judge, by High Court. By legislative process, the Sessions Court can only stay the proceedings in the subordinate Court. 164. Proviso to Section 407 Cr.P.C., which according to the petitioners, enables them to prefer an application for transfer of an appeal from criminal Court to another. Section 407(c)(ii), confers power on the High Court, to transfer particular a case or appeal, or class of cases or appeals, from a Criminal Court subordinate to the High Court's author ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cribed as the enacting part, must be construed without reference to the proviso. No doubt, there may be cases in which first part is so clear or unambiguous as not to admit in regard to the matters which are there clear any reference to any other part of the Section. The proviso may simply be an exception of what is clearly defined in the first part, or it may be some qualification not inconsistent with what is expressed in the first part." 169. Reading of Section 407 Cr.P.C., in its entirety, indicates the intention of the Legislature is to exclude appeals, from the purview of the proviso to Section 407(2) Cr.P.C., a part from the main Section and but for such exclusion, it would continue to be a part of the proviso also. Reference can also made to, what Lord Thankerdon observed in Province Of Bombay vs Hormusji Manekji reported in: AIR 1947 PC 200, as follows: "It is a familiar principle of statutory construction that where you find in the same section express exceptions from the operative part of the section, it may be assumed, unless it otherwise appears from the language employed, that these exceptions were necessary, as otherwise the subject-matter of the exceptions would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rief having its own limitations. In case of conflict between the plain language of the provision and the meaning of the Heading or Title, the Heading or Title would not control the meaning which is clearly and plainly discernible from the language of the provision thereunder." 173. In Mahesh Housing Co-operative Society Ltd. v. State of West Bengal reported in: 2004 (1) CHN 10, the Court held that, "That the headings constitute an important part of the Act and may be read not only as explaining the sections, which immediately follow them, but the headings may be read as preamble to a statute and may be looked for that purpose to explain the enactment. The same can be considered as key to the construction of section, which follow them." 174. In the light of the decisions, stated supra, when there is a clear omission of the word, "appeal" in Section 408(1) of the Code, an appeal cannot be transferred by the Sessions Judge, in exercise his powers under Section 408 Cr.P.C., from the Court of an Additional Sessions Judge, after the commencement of the hearing. 175. The next contention raised by the learned counsel for the petitioners is that when the Hon'ble Division Bench decisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or example to follow the other decision which only impliedly or indirectly or by way of a mere observation gave expression to a contrary view. It follows that the learned District Judge in the present case was not justified in refusing to follow the decision referred in Francis v. Varghese, for his preference a decision which impliedly decided the point as against the one that directly did so is neither consistent with established rules relating to precedents nor conducive to orderly administration of justice." 177. The Madras High Court in Devarasu's case, has held that under Section 408 Cr.P.C., a Sessions Judge cannot transfer a case from one Additional Sessions Judge Court to another, which is not subordinate or lower. Whereas, the High Court of Kerala in Surendra's case (cited supra) and Madhya Pradesh High Court in Re: District and Sessions Judge's case (cited supra), held that a case can be transferred from the Court of equal jurisdiction. 178. In Jamuna Devi v. District and Sessions Judge reported in: 2007 (1) GLR 560 : 2007 (1) GLT 148, a Hon'ble Division Bench of the Gauhati High Court, has held that, "the learned Sessions Judge had no authority or jur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ersuasive precedent is one which the Judges are under no obligation to follow, but which they will take into consideration and to which they will attach such weight as they consider proper. A persuasive precedent depends for its influence upon its own merits.... A decision of a High Court Judge of a State is regarded as binding on all the subordinate courts in that State. A decision of a Division Bench of a High Court is regarded as binding on Judges of the same High Court sitting singly in the High Court. A decision of a Full Bench, i.e. a Bench of at least 3 Judges of a High Court is considered binding on all Division Benches of the same High Court.... A decision of a High Court Judge sitting singly is not legally binding on another Judge of the same High Court sitting singly. So also a decision of a Division Bench of a High Court is not legally binding on another Division Bench of the same High Court. A decision of a Full Bench is not legally binding on another Full Bench of the same Court. One Judge of a High Court has however, no right to overrule the decision of another Judge of the same High Court nor has one Division Bench of a High Court the legal right to overrule another ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AIR 1991 SC 1893, the law is stated thus: "17. It would be difficult for us to appreciate the judgment of the High Court. One must remember the pursuit of the law, however glamorous it is, has its own limitation on the Bench. In a multi-Judge Court, the Judges are bound by precedents and procedure. They could use their discretion only when there is no declared principle to be found, no rule and no authority. The judicial decorum and legal propriety demand that where a learned single Judge or a Division Bench does not agree with the decision of a Bench of co-ordinate jurisdiction, the matter shall be referred to a larger Bench. It is subversion of judicial process not to follow this procedure." (x) In Philip Jeyasingh v. The Jt. Regr. of Co-op. Societies reported in: 1992 (2) MLJ 309, a Full Bench of this Court, held as follows: "49. The ratio decidendi of a decision may be narrowed or widened by the judges before whom it is cited as a precedent. In the process the ratio decidendi which the judges who decided the case would themselves have chosen may be even different from the one which has been approved by subsequent judges. This is because Judges, while deciding a case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isions of courts of co-ordinate jurisdiction, the later decision is to be preferred if reached after full consideration of the earlier decisions. (d) The decision of one High Court is neither binding precedent for another High Court nor for courts or Tribunals outside its own territorial jurisdiction. It is well settled that the decision of a High Court will have the force of binding precedent only in the State or territories on which the court has jurisdiction. In other States or outside the territorial jurisdiction of that High Court it may, at best, have only persuasive effect." (xii) In Government of W.B vs. Tarun Roy and others, reported in : 2004 (1) SCC 347, as regards binding precedent of a judgment, the Supreme Court at paragraph 26, has observed as follows:- "26..........If rule of law is to be followed, judicial discipline demands that the court follows its earlier binding precedent. The Calcutta High Court itself has rejected such a plea. The matter is pending in appeal. An order passed to the contrary by another learned Single Judge in ignorance of the earlier binding precedent by itself would not constitute a binding precedent and may be held to have been rendere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the record. Explanation. - All Magistrates whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this sub- section and of section 398. (2) The powers of revision conferred by sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding. (3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them. 401. High Court's Powers of revisions. (1) In the case of any proceeding the record of which has been called for by itself or Which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by sections 386, 389, 390 and 391 or on a Court of Session by section 307 and, when the Judges composing the Court of revision are equally divided in opinion, the case shall be disposed of in the manner provided by section 392. (2) No order under this section shall be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Courts are concerned, they would be only of persuasive value, on the Courts, functioning under different territorial jurisdiction. 185. In State of West Bengal v. Gangadhar Dawn and others reported in: 1989 Crl.L.J. 563, a Hon'ble Division Bench of Calcutta High Court considered a revision application, against the order of the learned Sessions Judge, allowing an application, filed by an accused, under Section 408 Cr.P.C., filed for transferring a case from the file of an Additional Sessions Judge, after the trial of the case had begun. At Paragraphs 4, 5 and 6 of the judgment, the Division Bench held as follows: "4. There appears to be some apparent contradiction between Sub-section (1) of Section 408 and Sub-section (2) of Section 409; but in fact, there is none. It is possible to make a harmonious construction of these two sections. 5. The criminal Court referred to in Section 408 covers only those Courts where cases can be filed. The criminal cases are usually filed in the Court of either the Chief Judicial Magistrate or the Sub-Divisional Judicial Magistrate, Section 408 refers to those cases and has nothing to do with the cases that might be transferred to the Chief ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , one from pretrial which is termed as 'case' and very often one comes across with the expression 'till the trial commences before the Sessions Judge' shows that sessions case and sessions trial is not the same. Once the trial commenced, the Sessions Judge has not the power to withdraw and transfer the trial to some other court of another Sessions Judge or Additional Sessions Judge. But before that stage of the trial, the Sessions Judge has every power to withdraw the Sessions Case either upon an application or suo motu and can transfer it to another court of session. In that there is no military between Section 408(1) and Section 409(2) of the Cr.P.C. The Legislature in its wisdom has used two terminology in Section 408(1) and 409(2) namely, the pre-trial stage of Sessions Case and trial stage. There is no doubt that the learned Sessions Judge has power to withdraw the Sessions case to another Court in pretrial stage, but once the trial commences he has no power to transfer the case to another court of Sessions Judge." 187. In the light of the decision of the Calcutta High Court in Gangadhar Dawn's case (cited supra) and Re: Smt. Tarulata Kala's case (cite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llowed, by the subordinate Courts to the Madras High Court, established under Article 215 of the Constitution of India, considering the exercise the power of superintendence over, all Courts and Tribunals, within the territorial jurisdiction of the Madras High Court, under Article 227 of the Constitution of India, the answer is a clear "No". A High Court may consider the decisions of other High Courts, decided on a point of law, but under the Constitutional scheme, each High Court has an independent power and jurisdiction to decide such question of law. 190. As regards the submission of Mr. S. Prabhakaran, learned counsel for the petitioner that the decision of the Madras High Court in Devarasu's case, decided by a learned single Judge of this Court, is not binding on the subordinate Courts, within the territorial jurisdiction of this Court, but the subordinate Courts should follow only the judgments of other High Courts, decided by a larger Bench of any other High Court, the answer lies in the decision of the Apex Court in East India Commercial v. Collector of Customs reported in: AIR 1962 SC 1893 and other decisions, stated supra. 191. Under the Constitutional Scheme, each ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court, whether it is of the same strength or of a higher composition. 195. No doubt, Judicial Precedents, across the country should maintain uniformity, and that there should be harmony in deciding a point of law, to be followed, but that does not mean that a High Court cannot decide a question of law, on its own, but have to simply follow the decision, decided by another High Court. In a given case, when a Central law is interpreted, every High Court is empowered to independently consider, the question of law, dehors the decisions of other High Court. 196. If the argument of Mr. S. Prabhakaran, learned counsel for the petitioners is accepted, then, if even a law, is decided erroneously by another High Court, all the High Courts, including the Subordinate Courts, throughout the Country, have to follow the same, and that argument is not only against the Constitutional Scheme, but would be against the principles of binding precedent, followed by the Courts, across the Country, in the light of the Article 227 of the Constitution of India and with reference to Sections 397, 398 and 401 and in particular, to the case on hand, Sections 406 to 412 of the Code of Criminal Procedure. 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 201. Provisions of the Code of Criminal Procedure, indicate that an Additional Sessions Judge, exercises equal judicial jurisdiction, on any matter, made over to him, whether it is a case or an appeal, as the case may be. If the party interested, makes an allegation against the Additional Sessions Judge, in the conduct of the proceedings, whether it be a case or an appeal, whether the Sessions Judge, is administratively superior to look into the allegations? In my humble view, he cannot do so. While that be so, can it be said that an Additional Sessions Judge is subordinate to the Sessions Judge, or the Additional Sessions Court is a lower Court? My answer would be "No". 202. Looking at any angle, I am unable to persuade myself that the Court of an Additional Sessions Judge is a Court, subordinate or lower, to the Sessions Judge. Now look at from the view of the High Court. As per Article 227 of the Constitution of India, all the Courts, within its territorial jurisdiction, are subordinate to its authority. The High Court can exercise its administrative powers, in case of any exigency or the judicial power, under Section 407 of the Code, in the matter of transfer. 203. Consideri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll be consistent with the smooth working of the system which the statute purports to be regulating; and that alternative is to be rejected which will introduce uncertainty, friction or confusion into the working of the system." 207. In Maharashtra State Board of Secondary and Higher Secondary Education v. Paritosh Bhupeshkumar Sheth reported in : 1984 (4) SCC 27, the Supreme Court held that, "It is equally important that the Court should also, as far as possible, avoid any decision or interpretation of a statutory provision, rule or bye-law which would bring about the result of rendering the system unworkable in practice." 208. In Suresh Khullar v. Vijay Khullar reported in: AIR 2008 Del. 1, the Court held that, "Where alternative constructions are possible the Court must give effect to that which will be responsible for the smooth working of the system for which the statute has been enacted rather than the one which would put hindrances in its way. If the choice is between two interpretations, the narrower of which would fail to achieve the manifest purpose of the legislation the Court should avoid a construction which would reduce the legislation to futility and should rather a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... another of equal jurisdiction i.e., from one Additional Sessions Judge to another Additional Sessions Judge and from one Assistant Sessions Judge to another Assistant Sessions Judge, and if the legislature wanted to confer a similar power on the criminal side also, i.e., in Section 408 of the Code of Criminal Procedure, the Legislature could have been amended Section 408 Cr.P.C., on the same lines as contained in Section 24 CPC also. 214. But a close reading of sub-section (1) of 408, shows that there is a clear omission of the word appeal' in Section 408. Therefore, the Sessions Judge cannot transfer an appeal from one criminal court to another criminal court in his Sessions division. 215. This Court in the foregoing paragraphs has already considered the meaning of the two words i.e., (1) any; and (2) particular, in the context in which, the two words occur in sub-section (1) of Section 408 CPC. As already discussed, in the light of the decisions of the Apex Court as to how a Section or a statute has to be read, a conjoined reading of Sub-Sections (1) & (2) with a specific inclusion of the word 'lower Court' in Sub-Section (2) of Section 408 Cr.P.C., in the humble o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no conflict in the decision of Radhey Shyam (supra). The conflict regarding them is interpretation of the same. Section 408(1) reads as follows:- "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." Sub-section (2) of Section 409 reads as under:- "At any time before the trial of the case or the hearing of the appeal has commenced before the Additional Sessions Judge, a Sessions Judge may recall any case or appeal which he has made over to any Additional Sessions Judge." (sic). (The underscoring is by me). So, both the sections speak of two stages, one up to the stage of case and another where the case steps into the stage of trial, that is, with the framing of the charge. The case under reference of the Allahabad High Court only speaks of transfer of the sessions case and not regarding trial. No doubt, the two sections are separate and independent and one is not controlled 7 or regulated by the other. But sub-section (2) of Section 409 specifically points out two stages in a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e an attempt to distinguish the above unreported judgment, as it is applicable only to a case and not an appeal. Whether Section 408(1) Cr.P.C., itself, can be made applicable, to an appeal, has already been discussed at length in the foregoing paragraphs. Though the learned counsel has argued that Appukuttan's case (cited supra), cannot be made applicable to the facts of the present revision petitions and contended that what is sought for by the revision petitioners is only transfer of appeals, pending on the file of the learned IInd Additional City Civil Court, Chennai, to any other Court of Session of equal jurisdiction and that the judgment in Appukuttan's case, pertains only to a case, quite contrary to the above submissions made, in the attempt to distinguish Appukuttan's case (cited supra), has relied on a Hon'ble Division Bench judgment of the Madhya Pradesh High Court in Re: District and Sessions Judge v. Unknown reported in : 2005 (3) MPHT 411, wherein, the question posed before Their Lordships, was with reference to the powers of the Sessions Judge, to transfer part-heard cases, as the Presiding Officer, had resigned from the post and no other Judicial Of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ision Bench of Madhya Pradesh High Court in Re: District and Sessions Judge v. Unknown reported in: 2005 (3) MPHT 411, has not considered the question, as to whether, an appeal can be transferred from one Criminal Court to another Criminal Court, in the same Sessions Division under Section 408 Cr.P.C., when the Judge, hearing a case or the appeal, has not retired or resigned. To make it clear, it was not a case for transfer of an appeal. 220. The question considered in Surendra Kumar v. Vijayan reported in: 2005 (4) KLT 475, by a Hon'ble Division Bench, is whether a Sessions Judge has power under Section 408 of the Code of Criminal Procedure, 1973, to transfer a case, after commencement of trial or a part heard appeal from the court of Additional Sessions Judge to another competent court within the sessions division. In the foregoing paragraphs, this Court has already extracted the reasons, assigned by the Hon'ble bench. That apart, a Full Bench decision of the Allahabad High Court in Radhey Shyam and another Vs. State of U.P. (ALL.) : 1984 (2) Crimes 50, has been considered. To sum, the Hon'ble Division Bench of Kerala High Court at Paragraph 12, held that, "(1) An ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Justice S. Nagamuthu in Ganesan's case (cited supra), deals with the committal of cases and the passing remark, that Section 408 Cr.P.C., empowers a Sessions Judge only to transfer any particular case from one Criminal Court to another Criminal Court in his Sessions Division, in my humble opinion, cannot be said to be precedent, as the issue of transfer was not subject matter considered. On this aspect, this Court takes support from the decisions stated supra, as to when a judgment can be treated as precedent. 223. As rightly contended by Mr. P. Govindarajan, learned Additional Public Prosecutor, the Sessions Judge, in exercise of the powers, under Section 408 of the Code of Criminal Procedure, cannot be said to have been conferred with a power to transfer "any particular case" from one Additional Sessions Judge to another, in the Sessions Division. 224. In Kumar v. State, represented by Superintendent of Police [Crl.R.C. No. 740 of 2005, dated 12.02.2007], relied on by the learned counsel for the respondents, an order has been passed in C.M.P. No. 7 of 2005 in S.C. No. 56 of 2004, on the file of the learned First Additional Sessions Judge, Salem, filed under Section 409(2) C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applied to the present revision cases, where, after the appeals were posted for judgment, transfer petitions have been filed. 226. Insofar as the Additional Sessions Court is concerned, there cannot be any difference of opinion expressed in Surendra Kumar's case that Court of Additional Sessions Judge is also a Criminal Court, as per Chapter XXXI of the Code. With due respect to the Hon'ble Bench of the Kerala High Court, there cannot also be a dispute that the words, "if it is in the expedient for the ends of justice", used in Section 408 Cr.P.C., should be given its importance, which the legislature, has intended to confer power on the Sessions Judge, to transfer a case from one Criminal Court to another Criminal Court in his Sessions Division. But as regards the words, "Criminal Court", used in Section 408(1) Cr.P.C., this Court is of the view that the words, "Criminal Court" should be a Court, lower than the Sessions Judge. 227. The Hon'ble Division Bench of the Kerala High Court in Surendra Kumar's case (cited supra), has interpreted the words, "lower Court" used in Section 408 Cr.P.C., does not mean a subordinate Court or inferior, to ensure that the power ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 408 Cr.P.C., to transfer any case or appeal, after the commencement of trial or appeal, as the case may be. In such a view of the matter, the expression "expedient for the ends of justice." occurring in sub-Section (1) of Section 408, if conjointly read with the words, "lower Court", occurring in sub-Section (2) of the said Section, should be read to mean that power is conferred on the Sessions Judge only, to transfer a case in the lower Court only. 230. The other reason assigned by the Hon'ble Division Bench of Kerala High Court is that if the Sessions judge is empowered to transfer a case from one Criminal Court to another of equal jurisdiction, then it would reduce the burden of the High Court. With due respect, this Court is unable to accept the said reason, having regard to various decisions, extracted supra, as to how, a statute and Sections have to be interpreted, to maintain harmony in the construction of the structure of the whole statute. 231. As per Section 28 of the Protection of Women from Domestic Violence Act, save as otherwise provided in this Act, all proceedings under sections 12, 18, 19, 20, 21, 22 and 23 and offences under section 31 shall be governed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... different way, leads to the conclusion that the independence of each High Court, is respected. 234. At this juncture, reverting to the case on hand, first of all, the matter sought to be transferred from the file of the learned Additional Sessions Judge, is not a case, but an appeal, arising out of the Protection of Women from Domestic Violence Act, 2005, filed under Section 29 of the Act. There cannot be any ambiguity in Section 408 Cr.P.C., it has only mentioned about a case and not an appeal. The word "case" cannot be stretched to mean an appeal also, when there is no ambiguity or uncertainty in the provision. 235. Hon'ble Mr. Justice Subbarao in M.V. Joshi v. M.U. Shimpi reported in: AIR 1961 SC 1494, said that, "when the words are clear and plain, the Court is bound to accept the expressed intention of the Legislature." I am extracting the words of the Hon'ble Judge, to the context of Section 408 Cr.P.C., in which, it is enacted for the reason that Section 408 Cr.P.C., speaks only about a 'case' and not an 'appeal'. In the present criminal revision cases, Appeal Nos. 142 and 144 of 2014, pending on the file of the learned IInd Additional City Civil C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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