The Sessions Judge has the power to transfer cases from subordinate Courts under Section 409 of the Code of Criminal Procedure, but before making such an order, reasons must exist and those reasons should be such as the law regards as satisfactory. The Sessions Judge is also required to issue notice to the accused and record reasons for transferring a case under Section 409 of the Code of Criminal Procedure.

JUDGMENT :

A. Pasayat, J. - Petitioners call in question legality of order dated 21-6-1994 passed by learned sessions Judge, Cuttack in Criminal Misc. Case No, 707 of 1994 in purported exercise of power u/s 409 of the Code of Criminal Procedure, 1973 (in short, the 'Code').

2. According to the petitioners, they were impleaded as opposite parties in the application filed by Tushar Kanra Routray (opp. party No. 2 herein) before learned Sessions Judge seeking transfer of Sessions Trial No. 200 of 1994 pending disposal in the Court of Add). Sessions Judge-, Kendrapara. No notice was issued to them, and solely on the concession of the learned Public Prosecutor, prayer of Tushar Kanta was accepted. Transfer of the aforesaid Case from the Court of Addl. Sessions Judge, Kendrapara to the file of Sessions Judge, Cuttack has been directed. Such a course, according to the petitioners, is illegal because no opportunity was granted to them, who are arraigned as accused and have vital interest in the matter. It is further urged that Section 412 of the Code mandates recording of reasons when action is taken u/s 409, but no reason has been recorded in the case, and merely on the concession of the Public Prosecutor and submission of the learned counsel appearing for Tushar. who was petitioner in the appli- cation, transfer has been directed.

Learned counsel for Tushar on the other hand submitted that the learned Sessions Judge has taken note of all relevant circumstances which were elaborately dealt with in the application filed for transfer, and when the State which is the prosecuting agency has no objection, inconvenience if any of the accused is of no relevance.

3. Sub-section (2) of Section 403 deals with power of Sessions Judge to recall any case or appeal which has been made over to any Addl. Sessions Judge at any time before trial of the case or commencement of hearing of the appeal. Order passed by the learned Sessions Judge is admittedly impugned in this case to have been passed by exercise of power under the said provision It restricts the scope of power of withdrawal and confines it to a stage prior to the commencement of stage of trial. Section 408 deals with power of a Sessions Judge to entertain transfer applications regarding cases pending on the file of one Criminal Court in the sessions division to another Criminal Court in the same division The effect of withdrawal or recall of cases and appeals by the Sessions Judge u/s 409 is identical with that of a transfer u/s 408. Although the section does not provide for giving of a notice to the opposite party, still on general principles of natural justice, notice should be given to the party affected, so as to give him an opportunity of showing cause against an order of transfer. Section 412 of the Code obligates reasons to be recorded by a Sessions Judge making an order Under Sections 408 or u/s 409. The Law Commission in its 41st Report at paras 44.12 at page 348 recommended that the principle of recording reasons for decision being sound should also apply to the orders of the Sessions Judge. Sec, 412 substantially corresponds to Sufe-sec. (SJ of Section 528 of the Code of Criminal Procedure, 1898 (in short, the 'old Code'). The material change in the new Code is that earlier reference was to a Magistrate maKing an order for transfer, but Section 412 of the Code includes within its scope even Sessions Judges. The necessity for recording reasons flows from the fact that though the discretion of Sessions Judge in transfering cases from the subordinate Courts under Sec 403 is unfettered, yet before an order is made, reasons must exist and those reasons should be such as the law regards as satisfactory from the point of view of principle. It is no doubt correct that when there is reason to think that an accused person has a reasonable apprehension that he would not get impartial and fair justice at the hands of any particular Court where his case is pending. the case should be transferred