The power of committal under Section 323 Cr.P.C. and the power of transfer under Section 408 Cr.P.C. operate in distinct spheres; the availability of the former does not exclude the jurisdiction of the Sessions Judge to transfer cases in the interest of justice.

JUDGMENT :

GARIMA PRASHAD, J.

1. Heard Sri Dhirpal Singh, learned counsel holding brief of Sri Shailendra Kumar Gupta, learned counsel for the petitioners, Sri Rakesh Prasad Mishra, learned counsel for respondent no.2 and the learned AGA for the State.

2. The present petition under Article 227 of the Constitution of India has been filed challenging the order dated 23.05.2025 passed by the Sessions Judge, Mirzapur in Transfer Application No.158 of 2025 arising out of Sessions Trial No.1309 of 2024 (State vs. Surendra Yadav and others).

3. The case of the petitioners is that respondent no.2 lodged a first information report which was registered as Case Crime No.252 of 2023 under Sections 147, 323, 352, 504 and 506 IPC and Sections 3(2)(Va), 3(1)(da) and 3(1)(dha) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 at Police Station Kotwali Dehat, District Mirzapur. It is further stated that the mother of petitioner no.2 lodged a counter first information report against respondent no.2 and his family members, which was registered as Case Crime No.253 of 2023 under Sections 147, 323, 427, 504 and 506 IPC at the same police station.

4. According to the petitioners, both the aforesaid FIRs arise out of the same incident and constitute cross-cases. Since offences under the SC/ST Act have been alleged in Case Crime No.252 of 2023, the said case is pending before the learned Special Judge, SC/ST Act, Mirzapur, whereas Case Crime No.253 of 2023 is pending before the Court of Chief Judicial Magistrate, Mirzapur.

5. It is submitted that in view of the law laid down by the Hon'ble Supreme Court in Nathi Lal Vs. State of U.P., 1990 Supp SCC 145, both cases ought to be tried by the same Court. Accordingly, the petitioners moved an application before the learned Sessions Judge seeking transfer of Case Crime No.253 of 2023 from the Court of the Magistrate to the Court where the connected case arising out of Case Crime No.252 of 2023 is pending.

6. The learned Sessions Judge, by the impugned order, rejected the said application holding that the petitioners ought to have approached the learned Magistrate under Section 323 Cr.P.C.

7. Assailing the said order, learned counsel for the petitioners submits that once a transfer application had been filed under Section 408 Cr.P.C., it was incumbent upon the learned Sessions Judge to examine whether the two cases were cross-cases and whether transfer was required in the interests of justice. It is submitted that the application could not have been rejected merely on the ground that recourse to Section 323 Cr.P.C. was available before the learned Magistrate.

8. Per contra, learned counsel for respondent no.2 as well as the learned AGA support the impugned order and submit that the petitioners ought to have first approached the learned Magistrate under Section 323 Cr.P.C. and, therefore, no interference is called for.

9. This Court has considered the submissions of the learned counsels for the parties and perused the record.

10. The principal issue which falls for consideration in the present petition is whether the learned Sessions Judge was justified in rejecting the transfer application on the ground that the petitioners ought to have approached the learned Magistrate under Section 323 Cr.P.C., despite the petitioners having invoked the jurisdiction of the Sessions Court under Section 408 Cr.P.C.

11. It is not disputed that two criminal cases have been registered between the parties in relation to the incident in question. According to the petitioners, both cases arise out of the same occurrence and constitute cross-cases. While one of the cases is pending before the learned Special Judge, SC/ST Act, Mirzapur, the other is pending before the Court of the learned Magistrate. On this basis, the petitioners moved an application before the learned Sessions Judge seeking transfer of the case pending before the Magistrate so that both matters could be be tried by the same Court.

12. In Nathi