The Single Judge Bench of Justice Anil Kumar Sinha of the Patna High Court held that any order passed under Section 408 of the Code of Criminal Procedure, 1973 is not appealable.
Brief facts
The present application is filed by the accused in order to set aside the order passed by the session judge in which the case was transferred at the instance of the opposite party no. 2.
Contentions of the Petitioner
The learned counsel appearing on behalf of the Petitioner contended that the case was transferred without giving any notice to the Petitioner. It was furthermore contended that the criminal court has no jurisdiction to examine an already-rendered order or judgment, according to Section 362 of the Code of Criminal Procedure, 1973.
The learned counsel appearing on behalf of the Petitioner relied upon the judgments titled Nirmal Singh v. State of Haryana, and State of Punjab v. Divinder Pal Singh Bhullar and Others.
Contentions of the Opposite Party
The learned counsel appearing on behalf of the opposite party contended that the present application is not maintainable as the order passed by the session judge can’t be challenged in the exercise of jurisdiction of this Court under Section 407 of the Code of Criminal Procedure, 1973, which is the power of the High Court to transfer cases or appeals. It was furthermore contended that the only remedy available to the Petitioner is to file the revision application before the High Court or invoke the inherent jurisdiction of the High Court under Section 482 of the Code of Criminal Procedure, 1973.
Observations of the Court
The Hon’ble court observed that in accordance with Section 408 of the Code of Criminal Procedure, 1973, the learned Sessions Judge has the authority to transfer cases and appeals within the Sessions Division if it appears to the Sessions Judge that the transfer is necessary for the interests of justice. There is no right of appeal for any decision made in accordance with Section 408 of the Code of Criminal Procedure, 1973.
It was furthermore observed that Section 407 of the Code of Criminal Procedure, 1973 is the power of the High Court to transfer cases or appeals.
It was noted that the petitioner is just challenging the order passed under Section 408 of the Code of Criminal Procedure, 1973 by the learned session judge and is not seeking a transfer of the trial.
It was also noted that the impugned order cannot be contested under Section 407 of the Code of Criminal Procedure, 1973, and the petitioner has legal recourse in front of the proper court under the pertinent legal procedure outlined in the Code of Criminal Procedure, 1973.
Based on these considerations, the court was of the view that the application under Section 407 of the Code of Criminal Procedure, 1973 is not maintainable.
The decision of the Court
With the above direction, the court dismissed the writ application.
Case Title: Prushotam Yadav @ Chotu Vs The State of Bihar
Coram: Hon’ble Mr. Justice Anil Kumar Sinha
Case No.: CRIMINAL MISCELLANEOUS No.43381 of 2023
Advocates for the Petitioner: Mr. Jitendra Singh, Sr. Adv. Mr.Vikram Singh
Advocate for the State: Mr.Binod Kumar
Advocates for the Opposite Party: Mr. Umesh Prasad Singh, Sr. Adv. Mr. Rajni Kant Singh Mr. Vaibhav Veer Shankar
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