Supreme Court Upholds High Court's Power to Transfer Case from Magistrate to Court of Session Under Section 526(1)(ii) CrPC. Majority Holds That Section 193 CrPC Does Not Bar Such Transfer as Cognizance Refers to Initiation of Proceedings, Not Subsequent Trial.

Case Note & Summary

The appeals before the Supreme Court arose from an order of the Punjab High Court (Circuit Bench) at Delhi dated March 13, 1964, passed in Criminal Revision No. 30-D of 1964 and Criminal Misc. No. 63-D of 1964, by which a case pending in the court of a Magistrate was transferred to the court of the Additional Session Judge. The appellant, P. C. Gulati, who had originally moved for transfer of the case, challenged the High Court's order before the Supreme Court, contending that the High Court lacked the power under Section 526(1)(ii) of the Code of Criminal Procedure, 1898 to transfer a case from a Magistrate's court to a Court of Session. The respondents, Lajya Ram Kapur and others, contended that the High Court possessed such power. The sole question before the Supreme Court was whether the High Court could transfer a case pending in a Magistrate's court to the Court of Session. The appellant argued that Section 193 of the Code prohibited the Court of Session from taking cognizance of any offence as a court of original jurisdiction unless the accused had been committed by a Magistrate, and that no express provision in the Code empowered the Session Court to take cognizance of a transferred case. Additionally, the appellant contended that the Code did not provide a specific procedure for the trial of such transferred cases, particularly because Section 271 required the Session Court to read a charge that was normally framed by a committing Magistrate. The respondents contended that the language of Section 526(1)(ii) was wide enough to cover transfer to a superior criminal court, and that the Court of Session was both subordinate to the High Court and superior in jurisdiction to a Magistrate. They argued that Section 193 did not bar such transfer because the transfer did not involve taking cognizance as a court of original jurisdiction. The majority, comprising Justices Sarkar and Dayal, held that the High Court was competent under Section 526(1)(ii) to transfer a case from a Magistrate's court to a Court of Session. They reasoned that the expression 'cognizance of any offence as a court of original jurisdiction' in Section 193 meant the initiation of proceedings for the first time, not subsequent inquiry or trial. When a case was transferred under Section 526, the Session Court was not taking cognizance as a court of original jurisdiction; therefore, Section 193 did not bar the trial. The majority further held that the absence of a specific procedure in the Code for trial of transferred cases did not invalidate the transfer, because the Session Court could follow the general procedure laid down in Chapter XXIII of the Code, which deals with trials before High Courts and Courts of Session. Special provisions for particular types of cases would override the general provisions. The Sessions Judge could frame or amend the charge as necessary. Justice Ramaswami dissented, holding that the High Court lacked power to transfer a case from a Magistrate's court to the Court of Session without a proper commitment. He reasoned that Section 526 did not expressly provide for the procedure to be followed by a Sessions Judge in a transferred case, and that the language of Section 526(1)(ii) could not be read in isolation from the mandatory provisions of Section 193. Consequently, he concluded that the transfer was invalid. The majority judgment upheld the High Court's power to transfer the case, thereby resolving the sole question in favor of the respondents.

Headnote

Issue of Consideration

Final Decision

The Supreme Court, by majority (Dayal and Sarkar JJ.), held that the High Court is competent under Section 526(1)(ii) CrPC to transfer a case from a Magistrate's court to a Court of Session. Section 193 CrPC does not bar such transfer because cognizance as court of original jurisdiction refers to initiation of proceedings, not subsequent trial after transfer. The Court of Session must follow procedure in Chapter XXIII; absence of specific procedure does not invalidate transfer. Ramaswami J. dissented, holding High Court lacks power. The majority judgment upheld the High Court's order transferring the case; the appeals were disposed of accordingly.

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