Himachal Pradesh High Court

Beverley Singh vs Tejinder Singh on 22 September, 2023

Bench: Virender Singh

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr.MMO No.784 of 2023

                                                       Reserved on : 01.08.2023





                                                        Decided on : 22.09.2023

    Beverley Singh                                                           ...Petitioner





                                              Versus

    Tejinder Singh                                                         ...Respondent





    Coram

The Hon'ble Mr. Justice Virender Singh, Judge.

Yes Whether approved for reporting?1

For the petitioner : Mr. Neeraj Gupta, Senior Advocate

with Mr. Vedhant Ranta & Mr. Ajeet Pal Singh Jaswal, Advocates.

For the respondent : Mr. R.L. Sood, Senior Advocate with Mr. Arjun Lall, Advocate.

Virender Singh, Judge (oral).

PetitionerBeverley Singh has filed the present

petition, under Section 482 of the Code of Criminal

Procedure (hereinafter referred to as 'CrPC'), for quashing

of order dated 4.7.2023, passed by the Court of learned

Sessions Judge, Shimla (hereinafter referred to as the 'trial

Court') in Cr.MP No.426S/4 of 2023.

2. By way of order dated 4.7.2023, learned trial

Court has allowed the application filed by the respondent

Whether Reporters of local papers may be allowed to see the judgment? Yes.

and Criminal Appeal No.92 of 2023, has been transferred

from the Court of learned Additional Sessions JudgeI,

Shimla to the learned trial Court.

3. Petition has been filed on the ground that the

petitioner has moved to the Court of learned Additional

Chief Judicial Magistrate, Shimla, by way of filing the

petition under Section 12 of the Protection of Women from

Domestic Violence Act, 2005 (hereinafter referred to as the

'DV Act').

4. In the said petition, the petitioner has also

moved an application under Section 23(2) of the DV Act,

has also been filed. The said application was partly

allowed by the Court of learned Additional Chief Judicial

Magistrate, Shimla, vide order dated 25.5.2023.

5. Aggrieved from the said order, petitioner has

preferred the appeal before the Court of Sessions. The said

appeal has been assigned to the Court of learned

Additional Sessions JudgeI, Shimla and the said appeal

has been registered, as Criminal Appeal No.92 of 2023.

6. It is the further case of the petitioner that

during the pendency of the appeal, before the learned

Additional Sessions JudgeI, Shimla, the respondent has

moved an application under Section 408(2) read with

Section 409(2) Cr.PC, with a prayer to recall the Criminal

Appeal No.92 of 2023, from the Court of learned Additional

Sessions JudgeI, Shimla to the learned trial Court. The

said application has been allowed by learned trial Court,

vide order dated 4.7.2023.

7. Aggrieved from the said order, the present

petition has been filed before this Court, challenging the

order, on the ground, that learned trial Court has

recalled/transferred the case from the Court of learned

Additional Sessions JudgeI, Shimla, without any ground,

as the learned trial Court, on the one hand, has rejected

the apprehension of the respondent and on the other hand,

the order, with regard to the transfer of the case, has been

passed.

8. The reasons, which have been assigned in the

impugned order, are also stated to be not sustainable in

the eyes of law. The application, moved by the respondent,

seeking the transfer of the appeal, lacks any reason nor

any reason has been assigned by the learned trial Court, to

justify the transfer/recalling the appeal.

9. Apart from this, much has been stated about

the effect of the transfer on the Presiding Officer of the

Court, from which, the case has been ordered to be

transferred.

10. Along with the petition, copy of the order dated

25.5.2023, passed by learned Additional Chief Judicial

Magistrate, Shimla, in an appeal, under Section 23(2) of

the D.V. Act, copy of the application moved by the

respondent under Section 408(2) read with Section 409(2)

Cr.PC and reply filed by the petitioner to the said

application, have been annexed.

11. Parties to the present petition have chequered

history of litigation. In the application, history of the

cases/proceedings, which have been initiated by the

parties to the present petition, has been given, which is

reproduced as under:

"By the Petitioner:

(a) Complaint under Section 12 of Protection of Women from Domestic Violence Act, 2005. It has been registered as Complaint No. 20 of 2023, in the Court of Additional Chief Judicial Magistrate,

Shimla. In such proceedings, an application under Section 23(2) of Protection of Women from Domestic Violence Act 2005 came to be filed (Cr. M.A.. No. 12942 of 2023). An Order was passed

on 25.05.2023 partly allowing the application.

Against the said Order, an appeal has been preferred by petitioner in the Court of Learned Additional Sessions Judge (1) Shimla being Cr.

Appeal No.92 of 2023, which appeal has now been recalled by the learned Sessions Judge, Shimla to itself for adjudication, on account of passing of impugned Order. The said appeal is fixed for 2.8.2023.

(b) Civil Suit No. 29 of 2023 titled Beverley Singh versus Tejinder Singh and another in the Hon'ble High Court of H.P. at Shimla, The same is

pending adjudication.

By the Respondent

The said suit is pending adjudication in the court of District Judge (Family Court), Shimla H.P. In the said suit, an application under Order 39

Rules 1 and 2 of the Code of Civil Procedure was filed (CMP No. 77S/6 of 2023) and an ex parte

ad interim injunction was granted in favour of respondent herein on 01.05.2023. The said Order thereafter upon hearing of arguments was vacated on 19.05.2023. The application filed by

respondent has been dismissed. The said Order has been challenged before this Hon'ble Court by the respondent in F.A.0. (FC) No. 12 of 2023 which appeal is pending adjudication before this Hon'ble Court and is now fixed for 1.8.2023.

12. Recalling of Criminal Appeal No.92 of 2023, has

been sought on the ground that the Principal Judge of the

Family Court, is in the rank of District and Sessions Judge

and Presiding Officer is senior in service to the Presiding

Officer of the Court of learned Additional Sessions JudgeI,

Shimla and on this ground, an apprehension has been

expressed that the Presiding Officer, of the Court of learned

Additional Sessions JudgeI, Shimla, is likely to be

influenced by the order passed by the Principal Judge,

Family Court. r

13. The said application has been contested by the

present petitioner by filing the reply, that the application is

not maintainable; application lacks material particulars,

being mala fide; and application is abuse of process of law.

14. On merit, the history of litigation has not been

disputed, but, the prayer has been opposed by asserting

that the apprehension of the petitioner Tejinder Singh is

unfounded.

15. Perusal of the impugned order shows that the

relief, as sought in the application, has been prayed, under

the provisions of Section 409 (2) Cr.PC.

16. Learned trial Court, while deciding the

application, for transfer has also recorded the submissions

of the learned counsel appearing for the parties, regarding

having full faith in the Court, where, the matter is

presently pending and other Court of concurrent

jurisdiction. Operative para 5 of the order reads as under:

"5. The learned counsel for the parties during the course of arguments fairly conceded of having full faith in the Court, where the matter is

presently pending and other courts of concurrent jurisdiction. There is no apprehension on the part of the applicant that the justice will not be

done in the Court where the matter is pending."

17. The reasons, which have been assigned by the

trial Court, are based upon the fact that the applicant has

some apprehension that the Presiding Officer of the Court

of learned Additional Sessions JudgeI, Shimla may get

influenced by the orders, having been passed by the

superior Court, and according to the learned trial Court, in

order to instill confidence in the parties, the powers under

Section 409(2) Cr.PC, have been exercised and Criminal

Appeal No.92 of 2023, has been ordered to be recalled.

18. The first and foremost question, which arises

for consideration of this Court, is with regard to the nature

of the order passed under Section 409(2) Cr.PC, as, it has

vehemently been argued by learned counsel for the

petitioner that the order passed by the learned trial Court

is an administrative order and as such, the same cannot

be assailed, before this Court, under Section 482 Cr.PC.

The provisions of Section 409 Cr.PC, are reproduced as

under:

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 subsection (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 provisions of this Code to another Court for trial or hearing, as the case may be.

19. In this regard, the provisions of Sections 9 and

10 of the Cr.PC, assume significance. Those provisions are

reproduced as under:

9. Court of Session.

(1) The State Government shall establish a Court of Session for every sessions division. (2) Every Court of Session shall be presided over by

a Judge, to be appointed by the High Court. (3) The High Court may also appoint Additional Sessions Judges and Assistant Sessions Judges

to exercise jurisdiction in a Court of Session.

(4) The Sessions Judge of one sessions division may be appointed by the High Court to be also an Additional Sessions Judge of another division

and in such case he may sit for the disposal of cases at such place or places in the other division as the High Court may direct.

(5) Where the office of the Sessions Judge is vacant,

the High Court may make arrangements for the disposal of any urgent application which is, or

may be, made or pending before such Court of Session by an 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 the Sessions Judge in whose Court they exercise jurisdiction. (2) The Sessions Judge may, from time to time, make rules consistent with this Code, as to the distribution of business among such Assistant Sessions Judges.

(3) The Sessions Judge may also make provision for the disposal of any urgent application, in the event of his absence or inability to act, by an

Additional or Assistant Sessions Judge, or, if there be no Additional or Assistant Sessions Judge, by the Chief Judicial Magistrate, and

every such Judge or Magistrate shall be deemed to have jurisdiction to deal with any such application.

20.

In the present case, learned trial Court has

recalled Criminal Appeal No.92 of 2023, along with entire

record from the Court of Additional Sessions Judge(1),

Shimla and ordered to put up the same before the Court of

Sessions Judge, Shimla.

21. Admittedly, the order, impugned herein, has

been passed under the provisions of Section 409 (2) Cr.PC,

there is a marked difference between the provisions of

Sections 408 and 409 of the Cr.P.C. Sections 406 to 412 of

the Cr.PC, deals with the transfer of the criminal cases.

Section 408 of the Cr.P.C. contains the powers of the

Sessions Judge to transfer the cases and appeals.

22. As per Section 408(1) Cr.PC, whenever, it is

made to appear to Sessions Judge that an order under this

subsection 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.

23. This power can be exercised by the Sessions

Judge, either on the report of the lower Court, or on the

application of a party interested or on his own initiative.

Provisions of Section 408 Cr.P.C., is reproduced, as under:

408. Power of Sessions Judge to transfer cases and appeals.

(1) Whenever it is made to appear to a Sessions Judge that an order under this sub section is expedient for the ends of justice, he may order

that any particular case be transferred from one Criminal Court to another Criminal Court in his sessions division.

(2) The Sessions Judge may act either on the report of the lower Court, or on the application

of a party interested, or on his own initiative.

(3) The provisions of sub sections (3), (4), (5), (6), (7) and (9) of section 407 shall apply in

relation to an application to the Sessions Judge for an order under sub section (1) as they apply in relation to an application to the High Court for an order under subsection (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."

24. No doubt, legislature, in its wisdom, has

empowered the learned Sessions Judge with the powers,

under Sections 408 and 409 Cr.PC, but, the scope of these

powers is entirely different.

25. Under Section 408 Cr.PC, the learned Sessions

Judge, may transfer a case from one criminal Court to

another criminal Court, within the same Sessions Division,

whereas, according to the provisions of Section 409 Cr.PC,

Sessions Judge, may withdraw any case or appeal, which

he has made over to any Additional Sessions Judge,

Assistant Sessions Judge or Chief Judicial Magistrate. He

may either try it in his own Court or hear the appeal

himself, or make it over to another Court for trial or

hearing.

26. No doubt, the powers under Section 409 Cr.PC,

are subject to the conditions, as inferred under subsection

(2) of Section 409 Cr.PC.

27. In such situation, the material question, which

arises for determination before this Court is as to whether

the powers, which have admittedly, been exercised by

learned Sessions Judge, in this case, under Section 409(2)

Cr.PC, are judicial powers or administrative powers.

28. This question assumes significance, as, in case,

it would be held by this Court, that the powers under

Section 409(2) Cr.PC, are judicial powers, then, the present

petition is perfectly maintainable, whereas, in case, it

would be held that the powers under Section 409(2) Cr.PC,

are administrative in nature, then, the same can only be

interfered with, in case, there are allegations of colourable

exercise of powers by the learned Sessions Judge.

29. Admittedly, nothing is there in the petition to

suggest that the impugned order has been passed while

colourable exercise of powers.

30. Section 409 Cr.PC, contains the powers of

learned Sessions Judge to withdraw/recall, those matters

originally instituted, in the Court of Sessions, and made

over by the learned Sessions Judge to Additional Sessions

Judge, Assistant Sessions Judge or Chief Judicial

Magistrate, whereas, the powers of transfer of cases has

been provided under Section 408 Cr.PC.

31. As per the provisions of Section 408 Cr.PC,

learned Sessions Judge, may order the transfer of the

cases, which, even were not instituted, in the Court of

Sessions, from one criminal Court to another.

32. In this regard, it is apt to reproduce the

relevant paragraph of the decision of Hon'ble Full Bench of

Allahbad High Court in Radhey Shyam versus State of

U.P. 1984 (2) Allahabad Law Journal, 666, wherein, it

has been held as under:

" It is necessary to point out that the power conferred on the Sessions Judge under Section 409(1), Criminal Procedure Code to withdraw any case or appeal from or recall, any case or

appeal which he had made over to any Assistant Sessions Judge or the Chief Judicial Magistrate subordinate to him, the power

conferred on the Chief Judicial Magistrate under Section 410(1), Criminal Procedure Code to

withdraw any case from or recall any case which he has made over to any Magistrate subordinate to him and to inquire into or try

such case himself, or refer it for enquiry or trial to any other such Magistrate competent to inquire into or try the same, the power conferred on the Judicial Magistrate under Section 410(2), Criminal Procedure Code to recall any case made over by him under subsection (2) of Section 192, Criminal Procedure Code to any other Magistrate and to inquire into or try such case himself and the power conferred on District Magistrate or SubDivisional Magistrate under Section 411, Criminal Procedure Code to make over, for disposal, any proceeding which has been started before him, to any Magistrate

subordinate to him and to withdraw any case from, or recall any case which he has made over to, any Magistrate subordinate to him, and dispose of such proceeding himself or refer it for

disposal to any other Magistrate, are all

administrative powers in connection with the distribution of business. These powers are distinct from the judicial power of transfer

conferred on the High Court and the Sessions Judge to be exercised if expedient for the ends of justice."

(Self Emphasis supplied)

33.

This view has also been followed by a Division

Bench of Kerala High Court, in T.S. Surendra Kumar

Versus K. Vijayan & Another, 2005 SCC OnLine Ker

476. Relevant paras 21 and 22 of the judgment are

reproduced, as under:

"21. In Reny George's case (supra), a

learned Single Judge of this Court took the view that transfer is always a power to be

exercised by a court of superior jurisdiction and therefore, the power of transfer of a Sessions Judge is limited to the cases

pending before the courts of Assistant Sessions Judges or Magistrates. With great respect we are unable to agree. As we have already seen, the Additional Sessions Judge gets jurisdiction to deal with only those cases/appeals which are made over to him and the Sessions Judge is free to withdraw or recall such cases at any time before the trial or hearing as the case may be commences. Thus there is a statutory, but administrative subordination in the matter

of making over, recalling, withdrawing and transfer of cases, as far as Additional Sessions Judge is concerned to the Sessions

Judge. Power of transfer need not always

depend on the superior jurisdiction. It can be a power conferred also, as we see from Section 24 of the Civil Procedure Code Thus,

in view of the Scheme provided under the Criminal Procedure Code conferring power on the Sessions Judge to transfer a case/a appeal pending before the Additional Sessions Judge, the decision in State of

Kerala v. Reny George (supra) requires to be overruled and we do so.

22. To sum up,

(1) An interested litigant is entitled to invoke

Section 409 of the Code before the Sessions Judge for the purpose of withdrawing or recalling cases including revisions and appeals already made over to an Additional

Sessions Judge provided the trial or hearing of the cases or revisions or appeals as the case may be, has not commenced, it is an

administrative exercise of power by the Sessions Judge.

(2) An interested litigant is entitled to move the Sessions Judge for transferring cases

including revisions and appeals at any stage from the court of an Additional Sessions Judge, if such transfer is expedient for the ends of justice.

(3) Unless the litigant thus first moves the Sessions Judge, an application for transfer under S. 407 before the High Court is not maintainable.

(4) The Additional Sessions Judge concerned is entitled to make a report to the Sessions Judge for transferring any cases including

revisions and appeals pending before him

irrespective of the stage of such matters."

(Self Emphasis supplied)

34. Similar view has also been expressed by a

Division Bench of Madhya Pradesh High Court in 2005 (4)

Criminal Court Cases 493 (M.P.). Relevant paragraph 19

is reproduced as under:

"19. In view of the above discussion, the

position may be summarized thus:

(a) A Sessions Judge in exercise of judicial power under Section 408 of the Code may transfer 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, if 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) Cr.PC. and the administrative power under Sections 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,

(n) recall any case or appeal which he has made over to any Assistant Sessions Judge or Chief Judicial Magistrate subordinate to him;

(ii) recall any case or appeal which he has made over to any Additional Sessions Judge, before trial of such case or hearing of such appeal has

commenced before such Judge, and try

the case or hear the appeal himself or make it over to another Court for trial or hearing in accordance with the provisions of Cr PC. No hearing need be

granted to any one before exercising such power. But the reason therefor shall have to be recorded having regard to

Section 412.

(c) A Sessions Judge in exercise of his administrative power under Section 409, may also recall any case where trial of the

case or hearing of an appeal has commenced before an Additional Sessions Judge (for the purpose of trying/hearing it himself or for being made over to another Additional Sessions Judge), if such Judge before whom it became partheard has retired, resigned, died or is transferred outside the Sessions Division. No hearing need be given for such recalling though the reason should be recorded. It is not necessary to refer such matters to the High

Court for transferring them by exercise of power under Section 407 of the Code."

35. Considering the scheme of Cr.PC, this Court

has no hesitation to hold that the powers exercised by the

learned Sessions Judge, under Section 409(2) Cr.PC, are

administrative in nature and the order passed, cannot be

interfered with by this Court, that too, under Section 482

Cr.PC, unless or until the challenge is to be made against

the order, being soiled with arbitrariness, unreasonableness

or on account of colourable exercise of powers.

36. There is nothing in the present case that the

order passed by the learned trial Court, impugned herein,

has been challenged, on the above three accounts.

37 The main attack of the petitioner, in this case,