V. BHASKARA RAO, J.

( 1 ) THIS is petition filed under S. 407, Cr. P. C. , for transfer of C. C. No. 165 of 83 on the file of the Judicial First Class Magistrate, Giddalur, to the file of the Asst. Sessions Judge, Markapur.

( 2 ) THE facts of the case in brief as averred in the affidavit are : On 19-3-82 at about 2. 00 p. m. there was a mutual fight between to parties in the main Bazar of Giddalur resulting in Crime Nos. 52 and 53 of 82 being registered by the Giddalur Police since some of the individuals in each of the parties happened to receive injuries. After investigation police filed a charge sheet in Crime No. 53/82 before the Judicial First Class Magistrate, Giddalur, and it was registered as C. C. No. 165/83. The petitioner in this transfer petition is cited as P. W. 1 in C. C. No. 165/83. The other crime, Cr. No. 52/82, in which the present petitioner is the accused has been committed to the Court of Session and registered under S. 307, I. P. C. as S. C. No. 88/83 on the file of the Assistant Sessions Judge, Markapur. It is submitted that the two cases arise out of the same transaction and they are case and counter and therefore need to be tried by one and the same Court and the judgments be delivered at the same time to avoid conflict of decisions.

( 3 ) BEFORE entering into the merits for transfer, it is to be noted that the very maintainability of this transfer application under S. 407, Cr. P. C. is challenged by the Addl. Public Prosecutor and Shri E. V. Bhagiratha Rao, learned counsel for the respondents. It is submitted that the proviso to sub-section (2) of S. 407, Cr. P. C. debars the present application since both the Courts being in the same Sessions Division of Prakasam, no application similar to the present one was made before the Sessions Judge and rejected by him. The proviso relied upon is as under :"provided that no application shall lie to the High Court for transferring a case from one Criminal Court to another Criminal Court in the same Sessions Division, unless an application for such transfer has been made to the Sessions Judge and rejected by him. "

( 4 ) IT is interesting to notice the brief legislative history behind this proviso. S. 407, Cr. P. C. of the present Code corresponds to S. 526 of the Old Code of 1898. S. 526 as it stood originally was not bridled by any prohibitory clause like the proviso extracted so as to debar maintenance of an application under that provision before the High Court direct without first moving the Sessions Judge. However, High Courts were consistently insisting upon moving the Sessions Court first before making an application under S. 526, Cr. P. C. This tendency obviously seems to have called for an insertion of a prohibitory clause in the lines of the present proviso resulting in the enactment of the Amendment Act 26 of 1955. It is by way of this Amendment Act a prohibitory clause similar to the present proviso was inserted to S. 526. The prohibitory clause is sub-section (1a) of S. 526, which is as under :" (1a) Notwithstanding anything contained in sub-section (1), no application shall lie to the High Court for the exercise of its powers under the said sub-section for transferring any case from one Criminal Court to another Criminal Court in the same Sessions Division, unless an application for such transfer has been made to the Sessions Judge and rejected by him. "i was also taken through Sections 6 and 9 of the Cr. P. C. to show that both the Courts viz. the Court of the Assistant Judge and the Court of the Judicial First Class Magistrate - involved herein are Criminal Courts. It is an admitted fact that both these Courts are in the same Sessions Division. On the other hand, Mr. Bali Reddy, the learned counsel for the petitioner submitted that even if both the Courts are Criminal Courts, still they are not of equal jurisdiction, the Assistant Sessions Judges Court being one of superior jurisdiction than that of the Judicial First Class Magistrate. He contend

Click Here to Read the rest of this document