1. The applicants are aggrieved by the order dated 10.10.1996 passed by the Sessions Judge, Dhar in Cr. Misc. Case No. 200/96 transferring Sessions Trial No. 394/95 from 1st Additional Sessions Judge, Dhar to the Special Judge, Dhar.

2. The accused applicants are facing trial in the Sessions Court, Dhar on the charges under section 306 and 498A of Indian Penal Code. The case was registered at S.T. No. 394/95 and made over for trial to the 1st Addl. Sessions Judge. However, at the fag end of the trial, when 9 prosecution witnesses were already examined, one Suresh Chandra, the father of the deceased on whose report the First Information Report in the case was registered, moved Transfer Application under section 408 CrPC before the Sessions Judge. Some personal allegations were made against the 1st Addl. Sessions Judge (Smt. Jaishree Verma, who now stands transferred to some other Sessions Division). The learned Session Judge by his order impugned, although held that the allegations made against the Presiding Officer were unfounded, but allowed the transfer application in following terms:

"It is well settled principle that 'justice should not only be done, but it should be appeared to have done'. In the light of the above principle, when the applicant is apprehending that he will not get justice from the Court of 1st Addl. Sessions Judge Dhar, it is necessary that his apprehension should be removed. Therefore, in the interest of justice, the application filed by the applicant, who is also an aggrieved person, is allowed and the Sessions Trial No. 394/95 (State Police Dhar v. Deepchand sun of Laxminarayan and others) is withdrawn from the Court of 1st Addl. Sessions Judge Dhar and transferred to the Court of special Judge & Addl. Sessions Judge Dhar for disposal according to law. Both the Courts be informed accordingly."

3. I have heard Shri Bhojwani, learned counsel for applicants and Shri G. Desai, Government Advocate for State.

4. The order is impugned on the grounds that it is passed in contravention of the express bar contained under sub-section (2) of section 409 CrPC; that, it is violative of the principles of natural justice as accused applicants were not given any opportunity of hearing before passing of the order and, that, no ground for transfer was made out.

5. Chapter XXXI of the Criminal Procedure Code deals with the transfer of criminal cases. While sections 406 and 407 confer power on the Supreme Court and the High Court respectively to transfer cases, the power of the Sessions Judge to transfer or recall cases are set out under section 408 and 409 of the Code. These two provisions thus read as follows:

408. Power of Sessions Judge to transfer cases and appeals. –

(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.

(2) The Sessions Judge may act either on the report of the lower Court, or on the application of a party interested, or on his own initiative.

(3) ..... ..... ...... .....

409. Withdrawal of cases and appeals by Sessions Judges. –

(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) ....... ...... ....... .....

6. Both these sections are different in their scope. While section 408 relates to transfer of a case from one Criminal Court to another Criminal Court within the same sessions Division, section 409 empowers the Session Judge subject to the limitation contained in sub-section (2), to withdraw any case or appeal which he had m