Report No. 32
28. Changes required in section 9.-
In the light of the above discussion,1 we now proceed to consider the detailed changes required in section 9. Coming, first, to section 9(1), we find that it deals with two matters, namely, (i) establishment of a Court of Session, and (ii) appointment of a Judge of such Court. We are concerned only with the second. The appointment is to be made by the State Government under section 9(1). But, under Article 235 of the Constitution, as interpreted by the Supreme Court,2 this "appointment", i.e., an assignment to a particular Court, is entirely within the "control" of the High Court.
Now, the difficulty (as stated in the suggestion3 which is under consideration) is, that, the power of a Session Judge is derived by virtue of the appointment under section 9(1), and extends only to the Sessions division to which he is appointed. He does not carry his power wherever he is transferred. To put it more concretely, while the latter half of section 9(1) is now of no effect, there is no valid provision to take its place.
1. Paras. 25 to 27, supra.
2. Paras. 6 to 21, supra, and para. 25 supra.
3. Para. 1, supra.
29. The following observations in a Madras case1 would seem to support the apprehension expressed above2:-
"We may mention in passing an argument of the learned public Prosecutor based on certain decisions of civil cases that although Mr. Nainar was no longer the Sessions Judge of Chittor he was still a Sessions Judge possessing certain powers by account of holding that office; but we find no ground for thinking that a Session Judge who has ceased to be the Sessions Judge of one division and has not become the Sessions fudge of another has any power as a Session Judge simpliciters; he has jurisdiction to exercise the powers of a Session Judge only by virtue of his appointment to a particular Session division.".
For the purposes of the present Report, we shall assume that the mere transfer of a Sessions Judge by the High Court by virtue of its power under Article 235 may not have the effect of clothing him with the robe of the Sessions Judge in the Court of Session for the division to which he is transferred. In other words, we shall assume, that the scheme of the Constitution has to be worked out in detail and translated in section 9, so that it forms part of the enacted law of the land. On this assumption, the latter part of section 9(1) should, obviously, be modified by substituting the "High Court" for the "State Governments".
1. Petan Ali Khan ( in re:), ILR 1947 365: AIR 1947 Mad 248 (252), para. 10.
2. Para. 28, supra.
30. We now proceed to consider section 9(2) and the succeeding sub-sections. Section 9(2) deals with the place of the sitting of the Court of Session. The earlier half leaves the power with the State Government. This also is an aspect of "control", and should be vested in the High Court.
Section 9(3) deals with the appointment of Additional Sessions Judges and Assistant Sessions Judges to a Court of Session and the power given to the State Government must now be vested in the High Court, as it is a part of "control", on the analogy of the power under section 9(1)1.
Section 9(4) provides that a Session Judge of one Session division may be appointed by the State Government to be also an Additional Sessions Judge of another division, and in such a case he may sit for the disposal of cases as such place, etc., as the State Government may direct. Thus, it deals with two matters, namely, first "appointing" a Sessions Judge of one sessions division as Additional Sessions Judge of another division, and secondly, his place of sitting. The first is analogous to the assignment of a Judge to a particular Court, and, thus, is a part of "control". The second also seems to fall under "control". But these powers must now be vested in the High Court.
Section 9(5) deals with the continuation of all Courts of Session, and need not be disturbed.
1. Paras. 25 to 27, supra.