The High Court has the power to transfer a case from the Court of a Magistrate to the Court of Additional Sessions Judge under S. 526(1)(ii) of the Code of Criminal Procedure.

Judgment

RAGHUBAR DAYAL, J.: (For himself and A. K. Sarkar J.) The sole question which determines these appeals is whether the High Court can transfer a case pending in the Court of a Magistrate to the Court of Additional Sessions Judge.

2. It is urged for the appellant, who had actually moved for the transfer of the case, that the High Court has no such power. The respondents contend that the High Court has such power.

3. Chapter XLIV of the Code of Criminal Procedure, hereinafter called the Code, deals with transfer of criminal cases. Section 526, in that Chapter, empowers the High Court to pass the following orders whenever it is made to appear to the High Court that the requirements of either of clauses (a) to (e) of sub-s. (1) thereof exists:

"(i) that any offence be inquired into or tried by any Court not empowered under Ss. 177 to 184 (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 or appeal be transferred to and tried before itself; or

(iv) that an accused person be committed for trial to itself or to a Court of Session."

The language of clause (ii) is wide enough to provide for an order transferring a case from the Court of a Magistrate to a Court of Session as both the Courts are subordinate to the High Court and the Court of Session is a Court superior in jurisdiction to that of a Magistrate.

4. Reference may be made to S. 6 which reads :

"Besides the High Courts and the Courts constituted under any law other than this Code for the time being in force, there shall be five classes of Criminal Courts in India, namely:-

I. - Courts of Session;

II. - Presidency Magistrates;

III. - Magistrates of the first class;

IV. - Magistrates of the second class;

V. - Magistrates of the third class;"

It is clear that the Courts are mentioned in the order of their superiority in respect of jurisdiction. It is not urged for the appellant that the language of Cl. (ii) of sub-s. (1) of S. 526 does not give power to the High Court to transfer the case from a Court to transfer the case from a Court of a Magistrate to that of a Sessions Judge. What is urged for the appellant is that the provisions of sub-cl. (ii) should be so construed as to limit its provisions to the transfer of cases from the Court of a Magistrate to another Court of a Magistrate, as otherwise there would be difficulties in the trial of the case by the Sessions Court when it is transferred to it from the Court of a Magistrate.

5. The first difficulty urged is that S. 193 of the Code inter alia provides that except as otherwise expressly provided by the Code or by other law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the accused has been committed to it by a Magistrate duly empowered in that behalf; that there is no express provision in the Code which empowers the Court of Session to take cognizance of the case as a Court of original jurisdiction when it be transferred to it by a High Court and that therefore the Court of Session is incompetent to take cognizance of such a case and try it.

6. Another difficulty suggested is that neither S. 526 nor any other provisions of the Code provides for the procedure to be followed by the Sessions Judge in the trial of the case transferred to it by a High Court and that the procedure laid down for the trial of a case by the Court of Session will not be suitable for the trial of the transferred case as S. 271 of the Code requires the Court of Session to commence the trial by reading the charge, a charge which according to other provisions of the Code is to be framed by the Magistrate who commits the case.

7. We do not consider any of these contemplated difficulties in the trial of the transferred c