A. C. SEN GUPTA, J.

( 1 ) THE State of West Bengal has preferred this revisional application against the order of the learned Sessions Judge allowing an application under S. 408 Criminal Procedure Code for transfer made by the accused in a Sessions case sometime after the trial of that case began before an Additional Sessions Judge.

( 2 ) THE view of the petitioner is that in view of the provision of Sub-Sec. (2) of S. 409 of the Code of Criminal Procedure, the Sessions Judge can send such a case from one Court of the Additional District Judge to another Additional Court of District Judge before the trial case began in that Court. S. 409 of the Code of Criminal Procedure runs thus : (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 ) THE learned Advocate for the opposite parties on the either hand argued that view of the provision of S. 408 of the Code of Criminal Procedure the Sessions Judge can transfer any case from one criminal Court to another criminal Court at any time irrespective of the fact as to whether the trial of that case has begun or not. The provision of Sub-Sec. (1) of S. 408 runs thus : (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.

( 4 ) THERE appears to be some apparent contradiction between Sub-Sec. (2) of S. 408 and Sub-Sec. (2) of S. 409; but in fact, there is none. It is possible to make a harmonious construction of these two Sections :

( 5 ) THE criminal Court referred to in S. 408 covers only chose Courts where cases can be filed. The criminal cases are usually filed in the Court of either the Chief Judicial Magistrate or the Sub-Divisional Judicial Magistrate. S. 408 refers to those cases and has nothing to do with the cases that might be transferred to the Chief Judicial Magistrate or to the Assistant and Additional Sessions Judges and S. 409, to the cases which have been transferred to the Additional Sessions Judges or Assistant Sessions Judges or Chief Magistrate S. 408 relate to those transferred cases and S. 408 relates to the cases originally filed m the criminal Courts. That is why, we noted that there is no apparent incongruity between the provisions of these two Sections.

( 6 ) NOW, the Sessions Judge has exercised his power under S. 408 in respect of the case transferred from the Court of Sessions Judge to the Court if the Additional Sessions Judge who already began the trial thereof. In view of the provision of Sub-Sec. (2) of S. 409 which has already been quoted by us, he has no such power when the trial already commenced.

( 7 ) BEFORE disposing of this case, we should observe that the accused opposite parties should be given the copy of the F. S. L. before they are asked to cross-examine the particular prosecution witnesses deposing on matters concerned by the F. S. L. report.

( 8 ) IN the circumstances, noted above, the revisional application is allowed. The order of the learned Sessions Judge is set aside and the Rule is made absolute.

( 9 ) J. N. HORE, J. :- I agree. Revision allowed.

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