Report No. 41
44.9. Section 528(1).-
Under sub-section (1) of section 528 any 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 subordinate to him. Earlier in this Report1 we have recommended that Assistant Sessions Judges need not exercise any appellate jurisdiction. The mention of "appeal" in this sub-section may, therefore, be omitted.
1. See para. 31.7 above.
44.10. Section 528(1C).-
Sub-section (1C), inserted by the Amending Act of 1955, confers on Sessions Judges the power to transfer cases from one Criminal Court to another Criminal Court in the same sessions division whenever "expedient for the ends of justice." The Sessions Judge may, however, act only on an application made to him in this behalf by an interested party. The sub-section does not contain any details of procedure similar to those contained in section 526.
We consider it desirable that a Sessions Judge should be authorised to transfer cases, not only on the application of an interested party, but also on the report of the lower Court or on his own initiative. The procedural provisions contained in section 526 should be applicable mutatis mutandis to applications for transfer made to a Sessions Judge, should have the power to order payment of compensation when he finds that the application for transfer was frivolous or vexatious. The maximum amount of such compensation may, however, be Rs 250 instead of Rs. 1,000.
We have in an earlier Chapter proposed1 that appeals from convictions by Magistrates of the second class should lie to the Chief Judicial Magistrate. In view of this proposal, it is desirable that the Sessions Judge should have the power to transfer a particular appeal from the Court of the Chief Judicial Magistrate to himself, and decide the appeal.
1. See para. 31.5 above.
44.11. Section 528(2).-
Sub-section (2) of section 528 has to be read with section 192 which empowers a District Magistrate or a Sub-divisional Magistrate to transfer a case after taking cognizance of it to another Magistrate subordinate to him. In our discussion1 of the earlier section, we have recommended that section 192 should be confined to making over of cases relating to offences and provision for transferring other kinds of cases should be placed elsewhere. The proper place for such a provision would appear to be in section 528.
1. See para. 15.83 above.
44.12. Section 528(5).-
Sub-section (5) of section 528 provides that a Magistrate making an order under this section shall record his reasons in writing for making the same. We consider that this provision, which is sound in principle, should apply equally to orders of a Sessions Judge recalling, withdrawing or transferring a case or appeal under this section.
44.13. Section 528(6).-
Sub-section (6) of section 528 provides that the head of a village under the Madras Village-police Regulation, 1916, or the Madras Village-police Regulation, 1821, is a Magistrate for the purposes of this section. It appears that this provision is practically obsolete and can be omitted.
44.14. Section 528 revised and split into five sections.-
Section 528, as it stands, is a composite provision dealing with different classes of Courts and with two or three different matters. It is desirable to split it up into five sections as follows.-
"528. 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 direc.-
(a) that any particular case be transferred from one Criminal Court to another Criminal Court in his sessions division;
(b) that any particular appeal be transferred from the court of a Chief Judicial Magistrate in his sessions division to his own court.
(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 526 shall apply in relation to an application to the Sessions Judge for an order under sub-section (1) of this section as they apply in relation to an application to the High Court for an order under sub-section (1) of section 526, except that sub-section (7) of that section shall so apply after substituting for the words "one thousand rupees" occurring therein, the words "two hundred and fifty rupees".
528A. Withdrawal of cases and appeals by Sessions Judges.- (1) A Sessions Judge may withdraw any case from, or recall any case which he has made over to, any Assistant Sessions Judge 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) Where a Sessions Judge withdraws or recalls a case or appeal under sub-section (1) or sub-section (2), he may either try the case in his own Court or hear the appeal himself, or make it over in accordance with the provisions of this Code to another Court for trial or hearing, as the case may be.
528B. Withdrawal of cases by Judicial Magistrates.- (1) Any Chief Judicial Magistrate may withdraw any case from, or recall any case which he has made over to, any Magistrate subordinate to him, and may inquire into or try such case himself, or refer it for inquiry or trial to any other such Magistrate competent to inquire into or try the same.
(2) Any Judicial Magistrate may recall any case made over by him under sub-section (2) of section 192, to any other Magistrate and may inquire into or try such case himself.
528C. Making over or withdrawal of cases by Executive Magistrates.- Any District Magistrate or Sub-divisional Magistrate ma.-
(a) make over any case, of which he has taken cognizance, for inquiry to any Magistrate subordinate to him;
(b) withdraw any case from, or recall any case which he has made over to, any Magistrate subordinate to him, and inquire into such case himself or refer it for inquiry to any other such Magistrate.
528D. Reasons to be recorded.- A Sessions Judge or Magistrate making an order under sections 528, 528A, 528B or 528C shall record his reasons for making it."