Report No. 48
38. Provision relating to "appointment of Sessions Judges" and other officers.-
Section 9 of the Code deals with the "appointment" of Sessions Judges. Having regard to a judgment of the Supreme Court on the subject1, (relating to transfer of Sessions Judges) previous Commissions considered it necessary2-3 to provide that the "appointment" of a Sessions Judge under section 9, which really is not a first appointment to the cadre but is a process which may be called assignment to a particular court after appointment in the cadre, should be done by the High Court, and not by the State Government as is required by the existing section 9(1). Though the judgment of the Supreme Court case related to the transfer of a Sessions Judge, the position as regards assignment of a person to a particular court of Session, would not be different, according to the view of two previous Commissions.
To achieve this object, a re-draft of section 9 was suggested in the previous Reports4-5 and the Cr. P.C. Bill also, while accepting the recommendation in substance, seeks to replace section 9 by a new clause6, which is as follows:-
"9. (1) The State Government shall establish a court of Session for every sessions division.
(2) Every court of Session shall be presided over by a Judge, to be appointed by the High Court.
(3) The High Court may also appoint Additional Sessions Judges and Assistant Sessions Judges to exercise jurisdiction in a Court of Session.
(4) The Sessions Judge of one sessions division may be appointed by the High Court to be also an Additional Sessions Judge of another division, and in such case he may sit for the disposal of cases at such place or places in another division as the High Court may direct.
[Sub-Clause (5) not material].
Explanation:-In this section, and in sections 11, 12, 17 and 18, "appointment with its grammatical variations and cognate expressions means postings by the High Court after the first appointment of a person by the State Government to the cadre of Sessions Judge, Additional Sessions Judge, Assistant Sessions Judge, Judicial Magistrate or Metropolitan Magistrate, as the case may be."
The Explanation, it may be noted, did not occur in the draft suggested by the previous Commissions.
1. State of Assam v. Ranga Muhamad, AIR 1967 SC 903.
2. 32nd Report of the Law Commission.
3. 41st Report of the Law Commission, paras. 2.17 to 2.21.
4. 32nd Report, Appendix 2.
5. 41st Report, Vol. 2, clause 9.
6. Clause 9, Cr. P.C. Bill.
39. While we appreciate the reasoning behind the recommendations of the previous Commissions and with the substance of the relevant clause in the Bill, we have a suggestion to make with reference to the wording of the clause. In our view, the word "appoint" should, in this context, be avoided. The appointment, posting and transfer mentioned in Article 233 of the Constitution are different from the appointment contemplated by section 9, and in order to maintain that distinction, it will be better to avoid the word "appoint".
We are of the view that in clause 9(1) of the Bill, the word "appoint" should not be used, but the word "assign" be used. The Explanation to clause 9 makes the same clarification, but we think that the word "appoint" should be avoided, as it is not desirable to use that word in a sense inconsistent with Article 233. This will affect some other sections of the Code and also necessitate consequential change in the Explanation to clause 9. Wherever the word "appoint" in the Code occurs in the sense of assignment to a particular post, it should be modified as above.