This article is an attempt to ponder over the following questions of relevance regard being had to the following decision of the Full Bench of the High Court of Patna, District Bar Association, Civil Court, Patna v. State of Bihar, Government of Bihar, Patna, Civil Writ Jurisdiction Case No. 251 of 2016 (Date of Decision: 27.10.2016):
- How is the position of a “Sessions Judge” different from that of an “Additional/Assistant Sessions Judge”?
- What is the dissimilarity between a “Sessions Judge” and the “Court of Session”? Is an “Additional/Assistant Sessions Judge” subordinate to a “Sessions Judge”?
- Can a High Court, in exercise of its power under Article 227 of the Constitution of India, 1950, direct that an application seeking pre-arrest bail/anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973, is to be filed in the Office of the Sessions Judge of sessions-division, who would appropriately distribute such applications amongst the Senior Additional Sessions Judges including those posted in Sub-Divisional Courts?
Before answering the above-said questions, in line with the dictum of the Full Bench decision of the High Court of Patna, it will be relevant for us to take note of Section 6 of the Code of Criminal Procedure, 1973. Section 6 of the Code of Criminal Procedure, 1973, states that, in every State, besides the High Court and all other courts constituted under any other law besides the Code of Criminal Procedure, 1973, there shall be the following classes of criminal courts, namely: (a) Courts of Session; (b) Judicial Magistrates of the First Class (and in any metropolitan area, Metropolitan Magistrates); (c) Judicial Magistrates of the Second Class; and (d) Executive Magistrates.
It is interesting to note that the term “Court of Session” has neither been defined in the Code of Criminal Procedure, 1898 (5 of 1898), nor, in the Code of Criminal Procedure, 1973 (2 of 1974).
A combined reading of Section 209 and Section 193 of the Code of Criminal Procedure, 1973 makes it abundantly clear that a Court of Session cannot take cognizance of any offence as a court of original jurisdiction unless the case has been committed to it by a Magistrate. When provisions of Section 209 and Section 193 of the Code of Criminal Procedure, 1973 are harmoniously construed in the light of each other then it becomes obvious that Section 209 of the Code of Criminal Procedure, 1973 requires a Magistrate to commit a case, which discloses commission of an offence triable exclusively by a Court of Session, to a Court of Session and it is only then that the Court of Session can take cognizance of such an offence.[1]
Now, regard being had to Section 209 of the Code of Criminal Procedure, 1973, it is unclear, whether or not, Court of Session includes Additional/Assistant Sessions Judge?
A careful reading of Section 6 of the Code of Criminal Procedure, 1973 will show that, the term “Additional/Assistant Sessions Judge” does not expressly appears in the first part i.e. Section 6 (i) of the Code of Criminal Procedure, 1973. But, if not in the first part i.e. Section 6 (i) of the Code of Criminal Procedure, 1973, then, in which part of Section 6 will the term “Additional/Assistant Sessions Judge” fall? Definitely not under Section 6 (ii)/(iii)/(iv) of the Code of Criminal Procedure, 1973, for an Additional/Assistant Sessions Judge is neither below, nor at par, but above the ranking order of Judicial Magistrates First Class, Judicial Magistrates Second Class and Executive Magistrates. Thus, the necessary conclusion is that, a Court of Session shall, ordinarily, mean not only the “Court of Sessions Judge”, but also the “Additional/Assistant Sessions Judges”.
Section 9 of the Code of Criminal Procedure, 1973 states that, there shall be one Sessions Judge presiding over the Court of Session for every sessions-division[2] and if there be, Additional/Assistant Sessions Judge, appointed by the High Court, then, their appointment will only be to exercise jurisdiction in the Court of Session. Thus, it is quite clear that, while a Sessions Judge presides over the Court of Session, constituted for a sessions-division, an Additional/Assistant Sessions Judge merely exercises jurisdiction in such a Court of Session.
Section 381 of the Code of Criminal Procedure, 1973 deals with “Appeal to Court of Session how heard”. Purport of Section 381 of the Code of Criminal Procedure, 1973, makes it clear that hearing of an appeal by an Additional/Assistant Sessions Judge or Chief Judicial Magistrate would be wholly without jurisdiction and orders passed in exercise of such jurisdiction would be nullity, unless and until, either the appeal is made over to them by the Sessions Judge for hearing, or, they have been directed by the High Court to hear the appeal. A cautious reading of Section 381 (2) of the Code of Criminal Procedure, 1973, makes it amply clear that, an Additional/Assistant Sessions Judge or Chief Judicial Magistrate can hear “only” such appeals as the Sessions Judge of the sessions-division may, by general or special order, make over to them the hearing of the such appeals or as the High Court may, by special order, direct them to hear such appeals.
Section 194 of the Code of Criminal Procedure, 1973, specifically speaks of the following: “Additional and Assistant Sessions Judges to try cases made over to them”. The purport of Section 194 of the Code of Criminal Procedure, 1973 is that- an Additional/Assistant Sessions Judge ordinarily will not try a case which discloses commission of an offence exclusively triable by a Court of Session, if the case has not been made over to him for trial by general or special order of the Sessions Judge of the sessions-division or unless the High Court directs such an Additional/Assistant Sessions Judge to try the case. However, it is worth noting that, trial by an Additional/Assistant Sessions Judge, in contravention of the mandate contained in Section 194 of the Code of Criminal Procedure, 1973 and/or Section 209 of the Code of Criminal Procedure, 1973, will not render the findings reached albeit such a trial conducted by the Additional/Assistant Sessions Judge as completely illegal or void, but would rather result in such a trial being termed as plainly ‘irregular’.
It is worth noting that, if a trial is committed by a Magistrate to the Additional/Assistant Sessions Judge directly without any order having been passed in that regard by the Sessions Judge or the High Court, then, such a committal is an ‘irregularity’, and, such an irregularity cannot be interfered with, in appeal or revision unless such an error or irregularity has occasioned in failure of justice and unless objection to such irregularity has been taken at the earliest possible opportunity, regards may be had to Section 465 of the Code of Criminal Procedure, 1973.[3]
Thus, if a sessions-triable-case is committed by a Magistrate, on his own accord, to an Additional/Assistant Sessions Judge, then, such an error must be objected to by the interested party, at an earliest possible opportunity or else, such an error later may not be allowed to be made a ground for interference with the finding of guilt or otherwise reached, on the basis of the trial so held, if no failure of justice is shown to have occasioned vide such an error.
No doubt, there is no express provision in the Code of Criminal Procedure, 1973 that makes an Additional Sessions Judge subordinate to a Sessions Judge, but, a curious reading of Section 409 of the Code of Criminal Procedure, 1973, will make it clear that in fact an Additional Sessions Judge is subordinate to a Sessions Judge. Section 409 of the Code of Criminal Procedure, 1973 falls in Chapter XXXI of the Code of Criminal Procedure, 1973, and it deals with the ‘Withdrawal of cases and appeals by Sessions Judges’. Sub-sections (2) of Section 409 of the Code of Criminal Procedure, 1973 states that, a Sessions Judge may at any time before the commencement of a trial of a case or hearing of an appeal before the Additional Sessions Judge recall any case or appeal which he has made over to that or any Additional Sessions Judge.
Section 10 of the Code of Criminal Procedure, 1973 expressly states that, an Assistant Sessions Judge is subordinate to a Sessions Judge. Section 10 of the Code of Criminal Procedure, 1973 deals with, ‘Subordination of Assistant Sessions Judges’; Sub-section (1) of Section 10 specifically states that, all Assistant Sessions Judges shall be subordinate to the Sessions Judge in whose Court they exercise jurisdiction. Moreover, it is interesting to note that, Sub-section (3) of Section 10 of the Code of Criminal Procedure, 1973 states that, the Sessions Judge may make provision for the disposal of any urgent application by an Additional/Assistant Sessions Judge, in the event of the his (Sessions Judge’s) absence or inability to act.
Lastly, a cursory look at Section 397 of the Code of Criminal Procedure, 1973 makes it clear that, only the High Court and the Sessions Judge is empowered to exercise revisional jurisdiction. Thus, expressly, an Additional/Assistant Sessions Judge does not possess the power to exercise revisional jurisdiction, but, none the less, Section 400 of the Code of Criminal Procedure, 1973 states that, unless a Sessions Judge transfers a revision petition, by general or special order to an Additional Sessions Judge, an Additional Sessions Judge derives no jurisdiction to exercise such a power.
Thus, it is as clear as daylight that in the Code of Criminal Procedure, 1973, whenever the expression used is ‘Court of Session’ then, it shall mean both the Sessions Judge and the Additional/Assistant Sessions Judge. However, whenever the expression used is ‘Sessions Judge’ then, it shall mean the Sessions Judge presiding over the sessions-division and not the Additional/Assistant Sessions Judge.
Before we conclude, it shall be apposite for us to deal with the aspect concerning exercise of power of superintendence (administrative as well as judicial) under Article 227 of the Constitution of India, 1950 by the High Court over the subordinate courts and tribunals in the context of Section 438 of the Code of Criminal Procedure, 1973. Specifically in the case of, District Bar Association, Civil Court, Patna v. State of Bihar, Government of Bihar, Patna [Civil Writ Jurisdiction Case No. 251 of 2016], the High Court of Patna encountered the following question: Can a High Court, in exercise of its power under Article 227 of the Constitution of India, 1950, direct that an application seeking pre-arrest bail/anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973, is to be filed in the Office of the Sessions Judge of sessions-division, who would appropriately distribute such applications amongst the Senior Additional Sessions Judges including those posted in Sub-Divisional Courts?
Answering the above question in the affirmative, the High Court of Patna opined that, ordinarily, if the scheme of the Code of Criminal Procedure, 1973 in scrutinized, it will be clear that, it is only the High Court and the Sessions Judge that can exercise powers under Section 438 and Section 439 of the Code of Criminal Procedure, 1973. But, Section 438 of the Code of Criminal Procedure, 1973 deals with the exercise of powers by a “Court of Session” and not by a “Sessions Judge” of a sessions-division. Regard may be had to the language of Section 438 (1) of the Code of Criminal Procedure, 1973, which reads as follows:
“…Where any person has reason to believe that he may be arrested on accusation of having committed a non-bailable offence he may apply to the High Court or the Court of Session for a direction under this section…”
Thus, after scrutinising the scheme of the Code of Criminal Procedure, 1973, the High Court of Patna (Full Bench) concluded that, an Additional/Assistant Sessions Judge can exercise powers under Section 438 and Section 439 of the Code of Criminal Procedure, 1973, but, only when an order is made in this regard by a Sessions Judge and such an order can be made by the Sessions Judge under Section 10 (3) of the Code of Criminal Procedure, 1973.
Following are the conclusions can be drawn after scrutinizing the dictum of the Full Bench decision of the High Court of Patna:
- The expression “Court of Session”, occurring in Section 209 and Section 193 of the Code of Criminal Procedure, 1973, includes not only a Sessions Judge, but also an Additional/Assistant Sessions Judge.
- Wherever the Code of Criminal Procedure, 1973 intends the exercise of power only by a Sessions Judge, the Code expressly uses the term “Sessions Judge” and not “Court of Session”. The overall administrative control as regards a sessions-division rests/vests in the “Sessions Judge”.
- A Sessions Judge presides over the Court of Session, constituted for a sessions-division, however, an Additional/Assistant Sessions Judge merely exercises jurisdiction in such a Court of Session.
- Ordinarily, an Additional/Assistant Sessions Judge will not take cognizance of a case, which discloses commission of an offence, which is exclusively triable by a Court of Session unless such a case has been made over to him by the Sessions Judge or by the High Court for trial.
- It cannot be held that the trial of an accused in a case, which has not been made over for trial to an Additional/Assistant Sessions Judge by an order of the Sessions Judge of the sessions-division or by the High Court, would be wholly without jurisdiction and non est in law, it would rather, at best, be plainly ‘irregular’.
- An Additional/Assistant Sessions Judge can exercise powers under Section 438 and Section 439 of the Code of Criminal Procedure, 1973, but, only when an order is made in this regard by a Sessions Judge of a sessions-division.
[1] See: District Bar Association, Civil Court, Patna v. State of Bihar, Government of Bihar, Patna, Civil Writ Jurisdiction Case No. 251 of 2016, High Court of Judicature at Patna, Date of Decision: 27.10.2016
[2] As per Section 7 of the Code of Criminal Procedure, 1973, every State shall be a sessions-division or shall consist of sessions-divisions; and every sessions-division shall, for the purpose of the Code of Criminal Procedure, 1973, be a district or consist of several districts and that every metropolitan area shall, for the purposes of territorial divisions, be a separate sessions-division and district.
[3] Section 465 of the Code of Criminal Procedure, 1973 deals with the following: “Finding or sentence when reversible by reason of error, omission or irregularity”. A bare perusal of Section 465 of the Code of Criminal Procedure, 1973 makes it clear that, unless an objection to an irregularity is taken at an earlier stage of the proceeding and unless, in the opinion of the court, failure of justice has, in fact, been occasioned by such irregularity or error, such irregularity would not be interfered with in appeal or revision.
