“Any Order Passed Under Section 408 Of The Code Of Criminal Procedure, 1973 Is Not Appealable”- Patna High Court

The Patna High Court has held that any order passed under Section 408 of the Criminal Procedure Code, 1973 (CrPC) is not appealable.

The petitioner who was an accused had filed an application under Section 407 of CrPC for setting aside the order whereby the records of Sessions Trial were transferred from 2nd Additional Sessions Judge to 1st Additional Sessions Judge at the instance of the informant/opposite party.

A Single Bench of Justice Anil Kumar Sinha said, “Section 408 of the Code of Criminal Procedure, 1973, deals with the power of the learned Sessions Judge to transfer cases and appeals, in its sessions division, whenever it is made to appear to the Sessions Judge that the transfer is expedient for the ends of justice. Any order passed under Section 408 of the Code of Criminal Procedure, 1973 is not appealable.”

The Bench noted that Section 407 of CrPC is the power of the High Court to transfer cases or appeals.

Senior Advocate Jitendra Singh represented the petitioner while Senior Advocate Umesh Prasad Singh and Advocate Binod Kumar represented the opposite parties.

In this case, the main submission of the Senior Counsel for the petitioner was that the record of Sessions Trial was transferred without any notice to the petitioner by the Sessions Judge, Bhagalpur. The prayer for transfer of the records of Sessions Trial from Naugachia to Bhagalpur at the instance of the informant/opposite party was dismissed earlier on three occasions on identical facts by the Sessions Judge, Bhagalpur. In support of his argument, the Senior Counsel relied upon a decision of the Supreme Court, in the case of Nirmal Singh v. State of Haryana (1996) 6 SCC 126.

The High Court in the above context observed, “As per the statutory provisions, the Sessions Judge has the power to transfer a case or appeal in the same sessions division and the High Court has power to transfer a case or appeal from one sessions division to another sessions division. The proviso to Section 407 (2) of the Code of Criminal Procedure, 1973 prescribes that no application shall lie to the High Court for transferring a case from one Criminal Court to another Criminal Court in the same sessions division, unless an application for such transfer has been made to the Sessions Judge and rejected by him.”

The Court added that the petitioner is not seeking transfer of the trial; rather, he has challenged the order passed under Section 408 of CrPC by Sessions Judge, Bhagalpur, by which Sessions Trial has been transferred in the same sessions division, from Naugachia to Bhagalpur.

Furthermore, the Court said, “It is clear that the petitioner is not invoking the power under Section 407 of the Code of Criminal Procedure, 1973, for transfer of the case from one sessions division to another sessions division and/or for transfer of the case in the same sessions division after rejection of his prayer for transfer before the Sessions Judge; on the contrary, the petitioner has challenged the order of transfer of Sessions Trial No. 82 of 2020, passed on the prayer of the informant/Opposite Party No. 2, by which the learned Sessions Judge, Bhagalpur, has transferred the Sessions Trial No. 82 of 2020 from 2nd Additional Sessions Judge, Naugachia Sub-Division, Bhagalpur, to 1st Additional Sessions Judge, Bhagalpur, by order, dated 10.05.2022.”

The Court concluded that the impugned order cannot be challenged under Section 407 of CrPC and the petitioner has remedy before the appropriate forum under the relevant provision of law prescribed under the Code.

Accordingly, the High Court dismissed the application and said that the petitioner will be at liberty to approach the appropriate forum.

Cause Title- Prushotam Yadav v. The State of Bihar & Anr.

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