The Sessions Judge has the power to transfer a case from one criminal court to another in the same sessions division under section 408 CrPC, even though the trial has begun.

( 1 ) THE petitioner was facing a trial before Mr. T. S. Oberoi, Addl. Sessions Judge, Delhi. The learned Additional Sessions Judge framed charges and adjourned the case for recording of the prosecution evidence. Two more cases were pending against him in the court of Mr. R. C, Jain, Addl. Sessions Judge. The case which was pending before Mr Oberoi was transferred by the learned Sessions Judge by his order dated 4-1-1982 to the court of Mr. R. C. Jain. The petitioner made an application to the learned Sessions Judge that in the face of section 499 the case pending in the court of one Additional Sessions Judge could not be transferred to the court of another Addl. Sessions Judge because the trial had already begun. Relying upon my decision in Suresh Kumar v. State and others, 1981 Cri. L. J. 928, the learned Session Judge rejected the application on 16-11-1982 stating that the transfer was ordered under section 408 and not under section 409 Criminal Procedure Code. This order is under challenge in this petition. It is also requested that this court may direct retransfer under section 407 Criminal Procedure Code. In fact, this is a petition for reconsideration of the decision in Suresh Kumar (supra ). The learned counsel for the petitioner feels that the decision was made because certain authorities of other High Courts were not brought before me. In Suresh Kumar (Supra) I had said:

"no authorities were cited at the bar in support of the rival contentions. But, I have been able to find. two, which appear to be the nearest relevant. In Reg. v. Gulabdas Kuberdas, (1874) 11 Bomb. H. R. C. 98, West J. did observe that in one sense, no doubt, the Sessions Judge, the Joint Judge and the Asst. Judge may be regarded as one court of Sessions but for purposes of section 473 of the 1861 Code (section 345 new), it is a separate court, Now, four aspects deserve to be noticed. One is that, an Addl. Sessions Judge may be treated as a separate court for some purposes, vide Reg. v. Gulabdas Kuberdas, (supra ). The second is that the power to transfer a case has not been given to the court 357 of session but to the Sessions Judge who presides over the entire court of session manned by Assistant and/or Additional Sessions Judges. The third is, that section 407 (1) (ii) while dealing with the powers of the High Court to transfer a case speaks of transfer "from a criminal court subordinate to it. " But, section 408 in case of a Sessions Judge does not use these words. The fourth is, that sec- lions 408 and 409 Cr P. C. deal with two separate types of powers of the Sessions Judge to transfer, and to withdraw or recall cases respectively. The former is to be exercise in the interests of justice and the latter may inter alia cover a simple administration of business. Distinction between these two powers has to be spelt out. In Bhabutmal v. The State, 1970 Raj. L. W. 242, Beri J. (later on Chief Justice), while discussing the corresponding provisions in the old Code ponited out that the intention of the legislature seems to be, as gathered from the plain language of section 528 (1c) old Code (section 408 (1) new Code), that within a sessions divisions for the ends of justice, the Sessions Judge has the power to transfer a case from one criminal court to another regardless of the fact whether the court from which the case is sought to be transferred is subordinate to the Sessions Judge or not. Sub-sections (1a) and (1b) of section 528 (old Code section 409 (1) and (2) new Code), advisedly emply the word recall as distinguished from the word transfer . He held that a case which has been made over by must be a case which has been made over by the Sessions Judge to the Additional Sessions Judge and the trial must not have commenced therein. He further held that the Sessions Judge can transfar a case from one criminal court to another criminal court in the same sessions division and that the court of an Additional Sessions Judge is a crimina