1988 Supreme(Raj) 516
RAJASTHAN HIGH COURT AT JAIPUR BENCH
S.C.Agrawal, P.C.Jain, JJ.
Deva and Anr. - Appellant
Versus
The High Court of Judicature for Rajasthan & Ors. - Respondents
D.B. Civil Writ Petition No. 217 of 1988.
Decided On : 25-04-1988
Advocates:
For the Petitioner: None present.
For the State:Mr. M.I. Khan, Addl. Advocate General.
For the Respondent:Mr. J.P. Sharma, Advocate.
The powers to transfer cases from one subordinate court to another, vested in the High Court under Section 27 of the Rajasthan High Court Ordinance, Section 407 of the Code of Criminal Procedure, 1973, and Article 227 of the Constitution of India, are judicial powers and must be exercised within prescribed parameters and limits. Even if the transfer order is considered an administrative action, the principles of natural justice require that a notice be served and the other party likely to be affected by the order be given an opportunity to be heard.
Headnote:
CRIMINAL PROCEDURE CODE - SECTION 407 - TRANSFER OF CASES - ADMINISTRATIVE ORDER - JUDICIAL ORDER - NATURAL JUSTICE - ARTICLE 14 AND 21 OF THE CONSTITUTION OF INDIA - HIGH COURT POWERS - RAJASTHAN HIGH COURT ORDINANCE, 1949 - SECTION 27 - ARTICLE 227 OF THE CONSTITUTION OF INDIA - PRINCIPLES OF NATURAL JUSTICE - TRANSFER OF CASES FROM ONE SESSIONS DIVISION TO ANOTHER SESSIONS DIVISION - NOTICE TO THE PARTIES AFFECTED - JUDICIAL POWERS OF THE HIGH COURT - ADMINISTRATIVE POWERS OF THE HIGH COURT - DISTINCTION BETWEEN ADMINISTRATIVE AND JUDICIAL ACTION - POWERS OF SESSIONS JUDGE TO TRANSFER CASES - SECTION 194, CR. P. C. - SECTION 408, CR. P. C. - SECTION 8, CR. P. C. - SECTION 4, CR. P. C. - SECTION 197, CR. P. C. - SECTION 268, CR. P. C. - SECTION 269, CR. P. C. - TERRORISTS AND DISRUPTIVE ACTIVITIES (PREVENTION) ACT, 1987.
Fact of the Case:
The petitioners, accused in two criminal cases pending before the Additional Sessions Judge, Bundi, Rajasthan, challenged the order of the High Court transferring the cases to the Designated Court at Ajmer. The petitioners contended that the transfer order was passed without any notice to them, violating the principles of natural justice and their rights under Articles 14 and 21 of the Constitution. The respondents, the State of Rajasthan and the Rajasthan High Court, justified the transfer order as an administrative decision taken for security reasons and in exercise of powers under Section 27 of the Rajasthan High Court Ordinance, 1949, read with Article 227 of the Constitution.
Finding of the Court:
The Court held that the powers to transfer cases from one subordinate court to another, vested in the High Court under Section 27 of the Rajasthan High Court Ordinance, Section 407 of the Code of Criminal Procedure, 1973, and Article 227 of the Constitution of India, are judicial powers and must be exercised within prescribed parameters and limits. The Court further held that even if the transfer order was considered an administrative action, the principles of natural justice required that a notice be served and the other party likely to be affected by the order be given an opportunity to be heard.
Issues: 1. Whether the powers to transfer cases from one subordinate court to another, vested in the High Court under Section 27 of the Rajasthan High Court Ordinance, Section 407 of the Code of Criminal Procedure, 1973, and Article 227 of the Constitution of India, are judicial or administrative powers? 2. Whether an order transferring cases from one sessions division to another sessions division without assigning any reason, without giving an opportunity of being heard to the petitioners, and without complying with the provisions of Section 407, Cr. P. C., can be sustained?
Ratio Decidendi: 1. The powers to transfer cases from one subordinate court to another, vested in the High Court under Section 27 of the Rajasthan High Court Ordinance, Section 407 of the Code of Criminal Procedure, 1973, and Article 227 of the Constitution of India, are judicial powers and must be exercised within prescribed parameters and limits. 2. An order transferring cases from one sessions division to another sessions division without assigning any reason, without giving an opportunity of being heard to the petitioners, and without complying with the provisions of Section 407, Cr. P. C., cannot be sustained.
Final Decision: The Court allowed the writ petition and set aside the order passed by the High Court transferring the cases from the Court of Additional Sessions Judge, Bundi to the Court of Additional Sessions Judge, Ajmer. However, the Court clarified that this would not prevent the State from filing an application for transfer of the cases in accordance with the law.
JUDGMENT
1. 1. By this writ petition under Articles 226 and 227 of the Constitution of India, the petitioner has prayed for issuance of a writ, order or direction quashing the directions issued by Hon'ble the Chief Justice of this Court, as communicated by the Registrar vide his letter No. 5607 dated 21st December, 1987, whereby a direction was given to the Additional Sessions Judge. Bundi to transfer sessions Cases No. 26 of 1987 and 79/87, to the designated court at Ajmer.
2. Briefly stated the facts of the case are that on 2nd August, 1980, one Sua Rebari, resident of Rebarpura was killed and an offence under Sections 147, 148, 149 and 302, Indian Penal Code was registered against several persons. including the petitioners. The petitioners were not arrested by the police and the trial of the case proceeded against the other accused persons. In Sessions Case No. 92/80, on 10th March. 1983, all accused persons other than the petitioners were convicted for the aforesaid offences, but the High Court in an appeal filed by the convicted persons, acquitted them of the charges. It was thereafter that the petitioners were arrested on different dates. Chargesheets were filed against them, but they were consolidated and the trial proceeded before the Additional Sessions Judge, Bundi. in Sessions Case No. 79/1986, State Vs Laxmi Narain and others , in which aparat from the petitioners Laxmi Narain and Hari Kishan Singh are also accused. The said trial is pending. On 29th December, 1986, an incident is alleged to have taken place in the city of Bondi, in which one Sher Ali was beaten and the offence under Sections 147, 148, 149, 326 and 307. Indian Penal Code along with Sections 3/25 and 4/25 of the Arms Act was registered against several persons including the petitioners, and the case is pending before the Additional Sessions Judge, Bundi, being Sessions Case No. 26 of 1987. During the pendency of the aforesaid cases before the Additional Sessions Judge, Pundi on 21st July, 1917, the State Government in exercise of its powers conferred under Section 268 of the Code of Criminal Procedure, 1973, passed an order directing that the petitioner, Deva and Shankar, shall not be removed from the District Jail, Bundi where they were lodged. After the passing of the aforesaid order, petitioner Shankar filed a bail application before this Court under Section 439. Cr P.C and vide order dated 23rd August, 1987, petitioner Shankar was ordered to be released on bail. In pursuance of the said order, the petitioner was released on 13th (sic, August, 1987. On 12th January, 1988 Additional Sessions Judge. Bundi informed the learned counsel for the petitioners that the cases had been orderer to be transferred as per the directions of Hon'ble the Chief Justice of this Court, as communicated by the Registrar vide letter No. 5607 dated 21st December, 1987, from the Court of Additional Sessions Judge to the designated Court at Ajmer. It was further directed that the accused persons would present themselves before the Designated Court, Ajmer on 6th February, ]988. The grievance of the petitioners is that then they made a request to the Sessions Judge to show that order of the High Court, the Additional Sessions Judge, Bundi refused to do so and advised them that the copy of the order could not be given to them but they could obtain a copy from the High Court. When they applied to the High Court for copy of the said order, the Registry refused to provide a copy to the petitioners. However the petitioner could obtain a certified copy of the order dated 12th January, 1988, by which the learned Sessions Judge Bundi had transferred the case to the Designated Court at Ajmer. A perusal of the order dated 12th January, 1988, would reveal that the aforesaid cases were ordered to be transferred in pursuance of the order of Hon'ble the Chief Justice as communicated by the Registrar vide letter No 5607 dated 21st December, 1987. The petitioners have further submitted that
Click Here to Read the rest of this document
Back
