Report No. 32
Section 9 of the Code of Criminal Procedure, 1898 Appointment of Sessions Judges, Additional Sessions Judges and Assistant Sessions Judges
1. Genesis of the Report and question considered in the Report.-
The circumstances in which this Report came to be prepared may be briefly stated. In connection with the revision of the Code of Criminal Procedure, 1898, which is under the consideration of the Law Commission, the Ministry of Home Affairs1 forwarded to the Law Commission the suggestion made by the High Court of Mysore for amending section 9 of the Code. The suggestion may be briefly summarised. Under section 9(1) of the Code of Criminal Procedure, 1898, the State Government has to establish a Court of Session for every sessions division, and to appoint a judge of such Court.
This provision, it is stated in the suggestion, conflicts with Article 233 of the Constitution under which the appointment of Sessions Judges must be made in consultation with the High Court. Difficulty, (it is stated), in the matter arises in regard to the transfer of Sessions Judges from one division to another. As held by the Supreme Court,2 the power of transferring District Judges (which includes Sessions Judges) is vested exclusively in the High Court.
If, therefore, the District Judge who is also a Sessions Judge is transferred by the High Court from one district to another district which ordinarily coincides with a sessions division, the said District Judge would not be a Sessions Judge for that district unless he is so appointed by the State Government, under section 9(1) of the Code of Criminal Procedure, 1898, The reason is, that the powers of a Sessions Judge are derived by virtue of appointment by the State Government under section 9(1) of the Code of Criminal Procedure, 1898 and extend only to the sessions division to which he was appointed by the State Government.
He does not carry his powers wherever he is transferred. The anomaly arising out of this situation because of the conflict between section 9(1) of the Code and the constitutional provisions contained in Article 235 can (it has been stated), be solved by suitably amending section 9(1) of the Code.
The High Court has, therefore, suggested that section 9(1) of the Code may be amended so as to empower the High Court to appoint a Sessions Judge to a Court of Session.
It is this suggestion which is being considered in this Report.
1. Home Ministry O.M. No. 19/71/66-Judl. II, dated 31st January, 1967, forwarding a summary of the suggestion of the High Court of Mysore.
2. State of Assam v. Ranga Muhammad, (21st September, 1966), Civil Appeal No. 1367 of 1966 (Supreme Court).
