The Allahabad High Court has held that where a Sessions Judge allows an application to transfer a criminal case under Section 408 CrPC, the person aggrieved by that order cannot challenge it by filing a fresh transfer application under Section 407 CrPC.

It held that order allowing transfer can only be challenged before the High Court under Section 482 CrPC.

For context, Section 408 CrPC empowers Sessions Judge to transfer criminal trial/ appeals within his jurisdiction.

Section 407 empowers High Courts to transfer criminal trial/ appeals pending before subordinate courts within their State.

The proviso to Section 407(2) allows an application to the High Court only where a transfer application made to the Sessions Judge has been rejected.

Section 482 CrPC provides for inherent powers of the High Court.

Justice Subhash Vidyarthi held,

“When an applicant files an application before the Sessions Judge for transfer of a case under Section 408 CrPC and that application is rejected, the applicant can approach the High Court by filing a transfer application under Section 407 CrPC, as is specifically mentioned in the proviso appended to Sub-section (2) of Section 407. However, when a transfer application filed under Section 408 CrPC is allowed by the Sessions Judge, the person aggrieved by the transfer order cannot challenge the same by filing another application under section 407 CrPC. The validity of a transfer order can only be challenged by invoking the inherent powers of the High Court, as acknowledged by Section 482 CrPC...”

Transfer-Applicant, complainant in the case, was aggrieved by an order of the Sessions Judge, Lucknow, allowing a transfer application filed by opposite party No.2. The trial had begun before the Additional Sessions Judge/Special Judge, ATS, Lucknow, then presided over by Shri Abhinay Kumar Mishra, who recorded the testimony of the first nine prosecution witnesses. After he was transferred to another court within the same sessions division, his successor took over and recorded the tenth witness.

Opposite party No.2 sought to have the trial shifted to the court now presided over by Shri Abhinay Kumar Mishra, on grounds that continuation before the officer who had heard the substantial part of the matter would advance fair trial, judicial continuity, proper appreciation of evidence and judicial economy. The Sessions Judge allowed the application, and the complainant challenged that order before the High Court under Section 407 CrPC.

The applicant relied on the Supreme Court's decisions in Ranbir Yadav v. State of Bihar and Bhaskar alias Prabhaskar v. State and on a decision of the Allahabad High Court in Anil Kumar Agarwal v. State of U.P. to argue that Section 326 CrPC, which lets a successor judge continue a part-heard trial on the evidence already recorded, does not require such a trial to be moved to follow the judge who recorded that evidence.

The Court held these authorities had no relevance, since the transfer had neither been sought nor granted on the ground that the transferee court lacked jurisdiction.

Although the applicant ought to have moved under Section 482 rather than Section 407, the Court declined to dismiss the petition on that technical ground after both sides had argued the merits, and examined the transfer order in exercise of its inherent power.

It held that both the court where the trial had been proceeding and the court to which it was sent had jurisdiction to decide it, leaving the Sessions Judge with the discretion to allocate the trial to either.

“An order passed by the Session Judge in exercise of the jurisdiction conferred upon him by Section 407 (1) Cr.P.C. after giving an opportunity of hearing to the parties and after dealing with their submissions, cannot be said to be an order obtained by or resulting in an abuse of the process of law.”

Holding that the Sessions Judge had committed no error in sending the trial to the officer who had watched all the witnesses of fact depose, the Court observed, “the Presiding Officer of that Court had the advantage of watching the demeanor of nine prosecution witnesses, which include all the witnesses of fact”

Accordingly, the transfer application was dismissed.

Case Title: Satyendra Nath Shukla v. State of U.P. Thru. Addl. Chief Secy. Home U.P. Lko. and another

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