2015 (3) TMI 1327 - MADRAS HIGH COURT

Application for transfer of appeals on the file of the learned IInd Additional Judge, City Civil Court, Chennai - Jurisdiction - powers and rights of Sessions Judge - power of the Sessions Judge to recall or make over cases to other Additional Judges - Protection of Women from Domestic Violence Act, 2005 - Whether the words, "Criminal Court" referred in Section 408(1) Cr.P.C., means a lower or subordinate Court to a Sessions Judge? - Whether the words "Criminal Court" in Section 408(1) Cr.P.C., includes the Court of Additional Sessions Judge, also?

Held that:- Under the Constitutional Scheme, I am empowered to decide, a question of law, independently of what the other High Courts, have decided and for that matter, the decisions of the other High Courts, may have a persuasive value and they do not a binding precedent. It is true that there must be certain degree of certainty in the law, to be interpreted and applied to all the persons, to which, the Constitution of India, extends, but that principle, does not mean that a High Court is bound by the decision of another High Court, whether it is of the same strength or of a higher composition.

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.

Power is conferred on the Sessions Judge in Sub-Section (1) of Section 408 Cr.P.C., to transfer a case from one Criminal Court to another Criminal Court, in the same Sessions Division and such power can be exercised, only for the reasons, stated in sub-Section (2) of Section 408. If the Sessions Judge, deems it expedient for the ends of Justice, to transfer any particular case, from one Criminal Court to another Criminal Court, in his Sessions Division, either on the report of the lower Court or on the application of the party interested or on his own initiative and if the words, "criminal Court" have to be meant to be inclusive of an Additional 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 - As per Section (2) of Section 409, a Sessions Judge may withdraw, trial of a case or hearing of an appeal, from the file of the Additional Sessions Judge, only before the commencement of the trial of a case or hearing of an appeal. Now it is the case of the petitioners that the Sessions Judge, in exercise of the his powers, under Section 408 Cr.P.C., can transfer a case or an appeal, even after the commencement of trial or hearing of an appeal, on the application of a party interested, if it is expedient for the ends of justice. If the principle, what cannot be done directly by the Sessions Judge, in exercise of his administrative powers, under Section 409(2) Cr.P.C., cannot also be done indirectly by the Sessions Judge, under Section 408 Cr.P.C., is applied, then the Sessions Judge, cannot transfer the trial of a case or hearing of an appeal, from one Additional Sessions Judge, to another, within his Sessions Division.

In Section 408 Cr.P.C., the Legislature has used the words, "any particular case", from one Criminal Court to another Criminal Court, in his Sessions Division and whereas, in Section 409 Cr.P.C., when the Sessions Judge, exercises the administrative power, the words, "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 - The expression "any particular case" used in Section 408(1) Cr.P.C., should be given its natural meaning and effect.

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, i.e., lower Court and in such circumstances, it can comprehend that, that the words, Criminal Court, refers only to a lower Court and not to a Court of equal jurisdiction. Though the words "Criminal Court" at the first blush, may appear to mean all the criminal Courts, within the Sessions Division of a Sessions Judge, but a close scrutiny of sub-Section (2) of Section 408 Cr.P.C., would make it clear that there is no obscurity and vagueness.

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 plain, literal and grammatical meaning and Courts are not empowered to delete or substitute the same, by way of interpretative process. Therefore, it is not open to the petitioners to contend that the opening sentence of sub-Section (2) of Section 408 Cr.P.C., ie., on the report of the lower Court or in particular, the use of the words, "lower Court", is illogical to the context, in which, sub-Section (1) to Section 408 Cr.P.C., is enacted by the Legislature, in the matter of transfer of a case, i.e., from a Criminal Court to another Criminal Court.

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. - 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.

The transfer applications filed by the revision petitioners, to transfer Appeal Nos. 142, 144, 176 and 177 of 2014, on the file of the learned IInd Additional City Civil Court, Chennai, are not maintainable in law - There is no manifest illegality in the impugned orders, warranting intervention.

Revision Cases are dismissed.