Analysis of Section 408 Cr.P.C.

The Power of the Sessions Judge to Transfer Criminal Cases and Appeals: A Critical Analysis of Section 408 of the Code of Criminal Procedure, 1973

Introduction

Section 408 of the Code of Criminal Procedure, 1973 (Cr.P.C.) vests the Sessions Judge with the crucial power to transfer cases and appeals within their sessions division. This provision is a cornerstone for ensuring the administration of justice is fair, impartial, and convenient, thereby upholding public confidence in the judicial process. The exercise of this power is predicated on the broad and significant standard of being "expedient for the ends of justice." This article seeks to provide a comprehensive analysis of Section 408 Cr.P.C., delving into its statutory framework, judicial interpretations of its scope and ambit, its relationship with other transfer provisions, procedural requirements, and the grounds upon which such transfers are typically ordered, drawing heavily upon the provided reference materials and established legal principles in India.

Statutory Framework of Section 408 Cr.P.C.

Section 408 of the Cr.P.C. outlines the power of the Sessions Judge to transfer cases and appeals. The section reads as follows:

"(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) The provisions of sub-sections (3), (4), (5), (6), (7) and (9) of section 407 shall apply in relation to an application to the Sessions Judge for an order under sub-section (1) as they apply in relation to an application to the High Court for an order under sub-section (1) of section 407, except that sub-section (7) of that section shall so apply as if for the words 'one thousand rupees' occurring therein, the words 'two hundred and fifty rupees' were substituted."[11]

The core elements of this provision are:

  • The guiding principle for transfer is "expedient for the ends of justice."
  • The power extends to "any particular case" and involves transfer between Criminal Courts within the same sessions division.
  • The Sessions Judge can initiate transfer based on a lower court's report, an application from an interested party, or suo motu.
  • Certain procedural aspects applicable to High Court transfers under Section 407 Cr.P.C. are also applicable to transfers by the Sessions Judge under Section 408.

Judicial Interpretation of "Expedient for the Ends of Justice"

The phrase "expedient for the ends of justice" is of wide import and serves as the fundamental criterion for exercising power under Section 408. While Section 408 itself does not enumerate specific grounds, the interpretation of this phrase draws significantly from the principles laid down by the Supreme Court in the context of transfer provisions like Section 406 Cr.P.C. The paramount consideration is the assurance of a fair trial. In Mrs Maneka Sanjay Gandhi And Another v. Miss Rani Jethmalani, the Supreme Court emphasized that "assurance of a fair trial is the first imperative of the dispensation of justice."[1] This principle, though articulated in the context of Section 406, is equally applicable to transfers under Section 408.

A reasonable apprehension that justice will not be done is a critical factor. As established in Gurcharan Dass Chadha v. State Of Rajasthan (cited in K. Anbazhagan v. Superintendent Of Police And Others), a transfer is warranted if such reasonable apprehension exists.[2] This apprehension must be based on substantial grounds, not mere allegations or hypersensitivity.[1] The Court in Abdul Nazar Madani v. State Of T.N And Another, while dealing with transfer due to alleged communal tensions under Sections 406/407, reiterated that mere surcharged atmospheres without concrete evidence of impediment to fair trial do not justify transfer.[5] However, if the atmosphere is genuinely vitiated to an extent that a "calm detached atmosphere" essential for justice is absent, transfer may be warranted to ensure justice is not only done but "seen to be done."[1]

The conduct of judicial officers, if it gives rise to a justifiable apprehension of bias, could also be a ground. While K.P Tiwari v. State Of M.P concerned expunging remarks,[3] the underlying principle is that judicial proceedings must be, and appear to be, impartial. Public confidence in the fairness of a trial is crucial for criminal justice.[2, 4]

Scope and Ambit of Power under Section 408 Cr.P.C.

Distinction between Section 408 and Section 409 Cr.P.C.

A significant body of case law distinguishes the power of the Sessions Judge under Section 408 from that under Section 409 Cr.P.C. Section 409 deals with the withdrawal of cases and appeals by Sessions Judges, primarily an administrative power. In contrast, Section 408 confers a judicial power.[13, 15] The Delhi High Court in Avinash Chander v. The State noted that Section 408 confers a general power to be exercised for the ends of justice, while Section 409 provides for a power more of an administrative nature.[13]

Crucially, the limitation imposed by Section 409(2) Cr.P.C. – that a Sessions Judge may recall a case made over to an Additional Sessions Judge only "before the trial of the case or the hearing of the appeal has commenced" – does not apply to the judicial power of transfer under Section 408(1). This was affirmed by the Full Bench of the Allahabad High Court in Radhey Shyam And Another v. State Of U.P, which held that the Sessions Judge is empowered under Section 408 to transfer a part-heard case from an Additional Sessions Judge if it is expedient for the ends of justice, and the limitations under Section 409(2) are not applicable.[20] This view has been followed by other High Courts, including the Chhattisgarh High Court in Avinash Singh And Anr. v. State Of Chhattisgarh And Anr.[21] and the Allahabad High Court in Jitendra Singh And Others v. State Of U.P. And Others.[22] The Telangana High Court in Guntuku Vijay v. State Of Telangana also clarified that Section 408 Cr.P.C. stands apart from Section 409 Cr.P.C.[12] The Gauhati High Court in Jamuna Devi v. District And Sessions Judge highlighted the bar under Section 409(2) for withdrawal of a part-heard case by the Sessions Judge, implicitly underscoring its distinct nature from Section 408.[16] Similarly, the Calcutta High Court in Tarulata Kala v. State, relying on Radhey Shyam, held that Section 408 is not governed by Section 409, allowing transfer even after charge framing.[23]

Transfer of Part-Heard Cases

Consistent with the distinction from Section 409(2), it is well-established that a Sessions Judge can transfer a part-heard case under Section 408 Cr.P.C. if it is expedient for the ends of justice. The Madhya Pradesh High Court in Veerendra Singh Patel v. The State Of Madhya Pradesh explicitly stated that for exercising power under Section 408, there is no embargo on the Sessions Judge regarding whether the trial has commenced or not.[15] The Allahabad High Court in Radhey Shyam and Jitendra Singh also supports this position.[20, 22]

Relationship with Section 407 Cr.P.C.

Section 408 operates in conjunction with Section 407, which grants the High Court power to transfer cases and appeals. The proviso to Section 407(2) Cr.P.C. mandates that no application shall lie to the High Court for transferring a case from one criminal court to another within the same sessions division unless an application for such transfer has first been made to the Sessions Judge under Section 408 and rejected by him.[11, 14] This makes the remedy under Section 408 a prerequisite in such scenarios. The Telangana High Court in Guntuku Vijay v. State Of Telangana emphasized this procedural requirement.[12]

A point of judicial divergence has arisen concerning whether Section 408(3) Cr.P.C., by incorporating provisions of Section 407, grants the Sessions Judge the power to direct a Magistrate to commit a case for trial to the Court of Session, a power explicitly mentioned for the High Court under Section 407(1)(iii). In Santhosh Appachan v. State Of Kerala & Others, the Kerala High Court considered an argument that Section 408 does not include the power to direct committal, which is vested only in the High Court under Section 407(1)(iii).[17] However, in Abdul Salam C.H v. Sameera & Another, the Kerala High Court noted a conflict in decisions, with one view (Annamma's case) holding that the Sessions Court has no such power of directing committal, while another view (Santhosh Appachan's case, seemingly re-evaluated or a different aspect discussed) suggested the Sessions Court might have such power via Section 408(1) read with Section 407(1)(iii) as applied by Section 408(3).[18] This indicates an area requiring authoritative clarification.

Procedural Aspects

Section 408(2) allows the Sessions Judge to act on a report from a lower court, an application by an interested party, or suo motu.[11, 14] When an application is made by a party, Section 408(3) makes certain provisions of Section 407 applicable. These include:

  • The application (unless by the Advocate-General) must be supported by an affidavit or affirmation (Section 407(3)).[11]
  • If the applicant is an accused person, the Sessions Judge may direct them to execute a bond, with or without sureties, for payment of any compensation awarded by the Sessions Judge under Section 407(7) (as modified by Section 408(3) to Rs. 250) if the application is found frivolous or vexatious (Section 407(4) & (7)).[11]
  • Every applicant must give written notice to the Public Prosecutor of the application and its grounds, allowing the Public Prosecutor to be heard (Section 407(5)).
  • The Sessions Judge may dismiss a frivolous or vexatious application and order the applicant to pay compensation to the person opposing the application (Section 407(7), as modified).

The principle of fair play, as highlighted in SARLA GUPTA v. DIRECTORATE OF ENFORCEMENT in the context of supplying documents (Sections 207 and 208 Cr.P.C.), underscores the importance of procedural fairness, which is inherent in the transfer process as well, ensuring all parties are heard.[6]

Grounds for Transfer under Section 408 Cr.P.C.

The overarching ground for transfer under Section 408 is that it must be "expedient for the ends of justice." While not exhaustively defined, this encompasses various situations, often mirroring the grounds available under Section 407(1) for High Court transfers, such as:

  1. Fair and Impartial Inquiry or Trial Cannot be Had: This is the most significant ground. If there is a reasonable apprehension, supported by credible material, that a party will not receive a fair and impartial trial or inquiry in the court where the case is pending, a transfer is justified.[1, 2] This could arise from various factors, including local prejudice, a vitiated atmosphere, or circumstances creating a bias in the mind of the presiding officer.
  2. General Convenience of Parties or Witnesses: While the convenience of parties is a secondary consideration to the assurance of a fair trial,[1] it can be a valid ground if it genuinely serves the ends of justice, for instance, where numerous witnesses or the accused face extreme hardship in attending a particular court, and transferring the case to another court within the division would alleviate this without prejudicing the trial.
  3. Other Circumstances Making Transfer Expedient: This is a residual category. For instance, if a case and a counter-case are pending in different courts within the same sessions division, it may be expedient to transfer one to be tried by the same court as the other to avoid conflicting judgments.[18] The Madhya Pradesh High Court in Veerendra Singh Patel noted a case where transfer occurred because a significant portion of evidence was recorded by a judge who was subsequently posted to another court in the same district.[15]

It is essential that the apprehension of injustice or bias is reasonable and not merely a subjective feeling or whim of the petitioner.[1, 5] The courts exercise this power with caution, balancing the rights of the accused, the interests of the prosecution, and the overall integrity of the judicial system.

Conclusion

Section 408 of the Code of Criminal Procedure, 1973, is a vital provision empowering the Sessions Judge to ensure that justice is duly administered within their territorial jurisdiction. The guiding principle of "expedient for the ends of justice" allows for a flexible yet responsible exercise of power, primarily aimed at securing a fair and impartial trial and maintaining public confidence in the judiciary. Judicial pronouncements have clarified its distinct nature as a judicial power, separate from the administrative power under Section 409 Cr.P.C., and have affirmed its applicability even to part-heard cases. The mandatory procedural requirement of approaching the Sessions Judge under Section 408 before seeking transfer from the High Court for intra-divisional transfers (under the proviso to Section 407(2)) further underscores its importance. While certain aspects, such as the precise scope of powers incorporated via Section 408(3) concerning committal, may benefit from further authoritative elucidation, Section 408 remains an indispensable tool in the procedural framework of criminal justice in India, safeguarding the sanctity of the trial process at the grassroots level of the sessions division.

References

  1. Mrs Maneka Sanjay Gandhi And Another v. Miss Rani Jethmalani, (1979) 4 SCC 167. (As per summary provided)
  2. K. Anbazhagan v. Superintendent Of Police And Others, (2004) 3 SCC 767. (As per summary provided, citing Gurcharan Dass Chadha v. State Of Rajasthan, (1966) AIR SC 1418, [1966] SCR (2) 678 and Maneka Sanjay Gandhi v. Rani Jethmalani, (1979) AIR SC 468, [1979] SCC (4) 167 and Abdul Nazar Madani v. State of T.N, (2000) AIR SC 2293, [2000] SCC (6) 204).
  3. K.P Tiwari v. State Of M.P, (1994) SCC SUPP 1 540. (As per summary provided)
  4. Zahira Habibulla H. Sheikh And Another v. State Of Gujarat And Others, (2004) 4 SCC 158. (As per summary provided, citing Maneka Sanjay Gandhi v. Rani Jethmalani).
  5. Abdul Nazar Madani v. State Of T.N And Another, (2000) 6 SCC 204. (As per summary provided)
  6. SARLA GUPTA v. DIRECTORATE OF ENFORCEMENT (Supreme Court Of India, 2025). (As per provided text)
  7. Rahna Jalal v. State Of Kerala And Another (Supreme Court Of India, 2020). (As per provided text - relevance to S.408 is indirect, related to general CrPC application)
  8. Satya Prakash v. State Of Chhattisgarh (Chhattisgarh High Court, 2004). (As per provided text - relevance to S.408 is indirect)
  9. Anisa v. Banne Khan (Allahabad High Court, 1981). (As per provided text - relevance to S.408 is indirect)
  10. DHANRAJ ASWANI v. AMAR S. MULCHANDANI (Supreme Court Of India, 2024). (As per provided text - relevance to S.408 is indirect)
  11. Guntuku Vijay v. State Of Telangana (Andhra Pradesh High Court, 2015). (As per provided text, quoting S.407, S.408)
  12. Guntuku Vijay v. State Of Telangana (Telangana High Court, 2015). (As per provided text)
  13. Avinash Chander v. The State (Delhi High Court, 1982). (As per provided text)
  14. In Reference By District And Sessions Judge, Raisen (Madhya Pradesh High Court, 2004). (As per provided text)
  15. Veerendra Singh Patel v. The State Of Madhya Pradesh (Madhya Pradesh High Court, 2024). (As per provided text)
  16. Jamuna Devi v. District And Sessions Judge, (2006) SCC ONLINE GAU 79 (Gauhati High Court, 2006). (As per provided text)
  17. Santhosh Appachan v. State Of Kerala & Others, (2006) SCC ONLINE KER 204 (Kerala High Court, 2006). (As per provided text)
  18. Abdul Salam C.H v. Sameera & Another, (2006) SCC ONLINE KER 508 (Kerala High Court, 2006). (As per provided text)
  19. Pamidi Venkata Nageswara Rao v. Pamidi Hemalatha, (2008) SCC ONLINE AP 391 (Andhra Pradesh High Court, 2008). (As per provided text)
  20. Radhey Shyam And Another v. State Of U.P, (1984) SCC ONLINE ALL 365 (Allahabad High Court, 1984). (As per provided text)
  21. Avinash Singh And Anr. v. State Of Chhattisgarh And Anr. (Chhattisgarh High Court, 2006). (As per provided text)
  22. Jitendra Singh And Others v. State Of U.P. And Others (Allahabad High Court, 2016). (As per provided text)
  23. Tarulata Kala v. State (Calcutta High Court, 1996). (As per provided text)