ORDER
M.C. Jain, J.
1. These revision petitions arise out of a common order dated 29-8-86 passed by the learned Sessions Judge, Jodhpur and raise a common question of law, so they are being disposed of by this common order.
2. Two Sessions Cases committed to the Court of Session, Jodhpur were transferred by the learned Sessions Judge for trial to the Additional Sessions Judge No. 1, Jodhpur. The learned Judicial Magistrate, No. 2, Jodhpur committed the Criminal Case No. 4557 of 1986 Under Section 307, IPC by his order dated 1-8-86, The Additional Sessions Judge, No. 1, Jodhpur rejected the bail application, so, the accused persons filed an application for bail Under Section 439, Cr. P.C. to the Court of Session.
3. The learned Munsif and Judicial Magistrate, Jodhpur District, Jodhpur committed the Criminal Case No. 268/86 Under Section 302, IPC by his order dated 25-7-86. The two accused-persons moved applications for bail before the learned Additional Sessions Judge, No. 1, Jodhpur to whom the case was transferred by the learned Sessions Judge, Jodhpur, which was rejected by the learned Additional Sessions Judge, so they moved applications for bail to the Court of Session Under Section 439, Cr. P.C.
4. In both the cases, a preliminary objection was raised by the learned Counsel for the complainant that when both the Sessions cases have been transferred to the Additional Sessions Judge, No. 1, Jodhpur then the Sessions Judge, Jodhpur has no jurisdiction to hear the application for bail in these cases.
5. The preliminary objection was opposed by the learned Counsel for the applicant-petitioners and also by the learned Public Prosecutor. Their contention was that the power of the Court of Session Under Section 439, Cr. P.C. is not in any way affected even after transfer of the cases by the learned Sessions Judge to the Additional Sessions Judge, No. 1, Jodhpur for trial.
6. The learned Sessions Judge by his impugned order upheld the preliminary objection and it was held by the learned Sessions Judge that the Additional Sessions Judge exercises the power of the Sessions Court in the cases, which are transferred to him for trial and as such, in the cases, which have been transferred to the Additional Sessions Judge, the Sessions Judge has no power, authority or jurisdiction to hear the applications for bail. As the Additional Sessions Judge when passes any order, he exercises the jurisdiction of the Court of J “Session and the Additional Sessions Judge has no independent or any other power other than the jurisdiction or power of Sessions Court.
7. So, the question that arises for consideration in these revision petitions is as to whether the Court of Session has jurisdiction or is competent to hear an application for bail Under Section 439, Cr. P.C. even when the application for bail is rejected by the learned Additional Sessions Judge.
8. For the proper appreciation and adjudication of the controversy, it is necessary to look into the relevant provisions of the Code of Criminal Procedure, 1973 and the scheme of the Code.
9. Chapter II of the Code of Criminal Procedure, 1973 deals with constitution of criminal courts and offices. The relevant provisions in this Chapter are Sections 6, 7, 9 and 10. Section 6 provides classes of Criminal Courts. It lays down as under
Besides the High Courts and the Courts constituted under any law, other than this Code, there shall be, in every State, the following classes of Criminal Courts, namely
(1) Court of Session;
(ii) Judicial Magistrates of the First Class and, in any metropolitan area, Metropolitan Magistrates;
(iii) Judicial Magistrates of the second class; and
(iv) Executive Magistrates.
10. Section 7 deals with Territorial Division and it, inter alia, provides that every State shall be a sessions division or shall consist of sessions divisions; and every sessions division shall, for the purposes of this Code, be a district or consist of districts.
11. The most material provision is Section 9, which is reproduced hereunder:
Court of Session : (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 the other division as the High Court may direct.
(5) Where the office of the Sessions Judge is vacant, the High Court may make arrangements for the disposal of any urgent application, which is, or may be, made or pending before such Court of Session by an Additional or Assistant Sessions Judge, or, if there be no Additional or Assistant Sessions Judge, by a Chief Judicial Magistrate, in the sessions division; and every such Judge or Magistrate shall have jurisdiction to deal with any such application.
(6) The Court of Session shall ordinarily hold its sitting at such place or places as the High Court may, by notification, specify, but, if, in any particular case, the Court of Session is of the opinion that it will tend to the general convenience of the parties and witnesses to hold its sittings at any other place in the Sessions division, it may, with the consent of the prosecution and the accused, sit at that place for the disposal of the case or the examination of any witness or witnesses therein.
Section 10 is also relevant, which reads as under:
Subordination of Assistant Sessions Judges:
(1) All Assistant Sessions Judges shall be subordinate to the Sessions Judge in whose Court they exercise jurisdiction.
(2) The Sessions Judge may, from time to time, make rules consistent with this Code, as to the distribution of business among such Assistant Sessions Judges.
(3) The Sessions Judge may also make provision for the disposal of any urgent application, in the event of his absence or inability to act, by an Additional or Assistant Sessions Judge, or, if there be no Additional or Assistant Sessions Judge, by the Chief Judicial Magistrate, and every such Judge or Magistrate shall be deemed to have jurisdiction to deal with any such application.
12. Chapter III deals with the Power of Courts. Section 26, inter alia, lays down that subject to the other provisions of the Code: (a) any offence under the Indian Penal Code may to tried by (i) the High Court, or (ii) the Court of Session, or (iii) any other Court by which such offence is shown in the First Schedule to be triable. Section 28 makes a provision for sentences which may be passed by the High Court, a Sessions Judge or Additional Sessions Judge and Assistant Sessions Judge. Sections 193 and 194 read as under:
Section 193. Cognizance of offences by Court of Session : Except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under this Code.
Section 194. Additional and Assistant Sessions Judges to try cases made over to them : An Additional Sessions Judge or Assistant Sessions Judge shall try such cases as the Sessions Judge of the division may, by general or special order, make over to him for trial or as the High Court may, by special order, direct him to try.
13. It would appear that Section 193 deals with cognizance of offences by Court of Session and Section 194 deals with the question as to what cases shall be tried by an Additional Sessions Judge or Assistant Sessions Judge. They will try the cases, which are made over to them by the Sessions Judge of the division by general or special order or on the direction of the High Court. These provisions fall in Chapter XIV dealing with conditions requisite for initiation of proceedings.
14. Chapter XVIII makes a provision for trial before a Court of Session. This Chapter contains the provisions from Sections 228 to 237.
15. Chapter XX11I deals with evidence in enquiries and trials and Chapter XXIV makes general provisions as to inquiries and trials. It would appear that the provisions contained in these two Chapters are applicable to trials and enquiries by the Magistrate as well as the trial before the Sessions Court.
16. Chapter XXIX relates to appeals. Section 374 provides for appeals from convictions. Sub-sec (3)of Sec 374 makes a provision for appeal to the Court of Session by any person convicted on a trial held by Assistant Sessions Judge or save as otherwise provided in sub-sec (2) i .e- if a sentence of 7 years is passed by the Assistant Sessions Judge, appeal will lie to the Court of Session.
17. Section 381(1)lays down that an appeal to the court of session or Sessions Judge shall be heard by the Sessions Judge or by an Additional Sessions Judge. But if it is an appeal against the conviction on a trial held by a Magistrate of the second class may be heard and disposed of by an Assistant Sessions Judge or a Chief Judicial Magistrate. Sub-sec (2)of Section 381 provides that an Additional Sessions Judge, Assistant Sessions Judge or a Chief Judicial Magistrate shall hear only such appeals as the Sessions Judge of the division by general or special order may make over to him or as directed by the High Court by special order.
18. Chapter XXX deals with the provisions for Reference and Revision. Under Section 395(2), a Court of Session or a Metropolitan Magistrate is empowered to refer for the decision of the High Court any question of law arising in the hearing of the case. Sec 397 confers power for calling for records to exercise powers of revision and Sec 400 makes aprovision that an Additional Sessions Judge shall have and may exercise all the powers of a Sessions Judge in Chapter XXX in respect of any case, which may be transferred to him by or under any general or special order of the Sessions Judge.
19. Chapter XXXI deals with transfer of criminal cases. Section 408 provides for power of Sessions Judge to transfer cases and appeals. Under sub-sec (1) of Section 408, the Sessions Judge has power to transfer any case from one criminal court to any other criminal court in his sessions division. Sec 409 confers powers on the Sessions Judge for withdrawal of cases and appeals made over by him to any Assistant Sessions Judge or Chief Judicial Magistrate subordinate to him. Sub-sec (2) of Section 409 empowers the Sessions Judge to recall any case or appeal made over by him to any Additional Sessions Judge before commencement of the trial of the case and before commencement of the hearing of the appeal.
20. There is a separate Chapter XXXIII dealing with the provisions as to bail and bonds. See 436 makes a provision for bail in bailable offences. Sec 437 provides when bail may be taken in case of non-bailable offence. The relevant part of Sub-section (1) of Section 437 reads as under:
When any person accused of or suspected of the commission of any non -bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a court, other than the High Court or Court of Session he may be released on bail, but he shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life.
It would appear that when any person appears or is brought before a Court of Session, Section 437, Cr. P .C would not apply. It is only when he appears or is brought before a Court other than the High Court or Court of Session, Sec -437 would be attracted.
21. Similarly, under Sec 438, Cr. P .C. an application may be moved to the High Court or to the Court of Session for direction for release on bail in the event of arrest. An application Under Section 438, Cr. P.C. cannot be moved before any court other than the High Court or the Court of Session.
22. Section 439, Cr. P. C provides special powers of High Court or Court of Session regarding bail- The restrictions, which find mention in Section 437, would not in any way affect the power of the High Court or the Court of Session, regarding the grant of bail. Sub-sec (2) of Sec 439, Cr. P.C confers powers on the High Court or the Court of Session to effect the arrest and commit to custody any person who is released on bail under Chapter XXXIII.
23. The expression “Court of Session” occurs in various provisions of the Code of Criminal Procedure, 1973 (for short the Code’) in different Chapters .There are some specific provisions, which deal with the powers or jurisdiction of the Additional Sessions Judge or Assistant Sessions Judge. I have not exhaustively referred to the provisions wherein the expression “court of session “occurs, only some of the provisions have been referred to above.
24. The Additional Sessions Judge and Assistant Sessions Judge as such are not made courts in Sec ft in the first category of the courts. There is a provision for the court of session only. A close look to Sec 9 would make it clear that a court of session is always presided over by a Judge to be appointed by the High Court, whereas, the Additional Sessions Judges or Assistant Sessions Judges appointed by the High Court exercise jurisdiction in a Court of Session and there is only one Court of Session for every sessions division.Thus, it would appear that in a sessions division, apart from the court of session presided over by the Sessions Judge Additional Sessions Judges and Assistant Sessions Judges can be appointed to discharge the functions of a Court of Session and for that, their jurisdiction and powers are provided for in various provisions. Therefore, they as such will not constitute a Court of Session but being appointed as Additional Sessions Judge or Assistant Sessions Judge in a court of session, they will exercise the limited jurisdiction conferred on them under various provisions. Under the Code, the expression “court of session”, in some provisions has been used to mean only a Court of Session presided over by a Sessions Judge and this expression has also been made use of, so as to include the Additional Sessions Judge and Assistant Sessions Judges. The jurisdiction of the Additional Sessions Judge and Assistant Sessions Judges is narrower and limited over the cases, which are transferred to them by the Sessions Judge and besides that, the court of session presided over by Sessions Judge has some powers over them. So far as the Assistant Sessions Judges are concerned there is a clear provision for their subordination to the Sessions Judge and further even appeal can lie against the judgment of conviction and sentence passed by an Assistant Sessions Judge in a certain situation to the court of session presided over by the Sessions Judge. Under Section 194, the Additional Sessions Judges and Assistant Sessions Judges tiave jurisdiction to try only those cases, which are made over to them for trial by the Sessions Judge of the sessions division, As already stated Chapters XVIII and XXIII are general. They will apply to the Additional Sessions Judges and Assistant Sessions Judges as well though the expression used is “court of session”. As regards, the appeals as well, there is a provision in Section 381 that the Additional and Assistant Sessions Judges shall hear only those appeals as the Sessions Judge may make over to them. Similarly, so far as the Additional Sessions Judge is concerned, there ‘ is a specific provision in Section 400, that he will exercise all the powers of the Sessions Judge under Chapter XXX in respect of the cases, which have been transferred to him. As stated above, in Chapter XXXI, powers of Sessions Judge are provided for transfer of cases and for withdrawal of cases. Even, cases and appeals pending before the Additional’ Sessions Judge can be withdrawn in the given situation. Thus, it would appear that the Code contains the specific provisions relating to the powers and jurisdiction to be exercised by the Additional Sessions Judge and Assistant Sessions Judges and the powers, possessed by the Sessions Judge over the Additional Sessions Judges and Assistant Sessions Judges. ‘ The jurisdiction of the Additional Sessions Judges is limited to the cases or appeals transferred to them and even they can be, recalled and withdrawn in a certain situation} Sees. 437,438 and 439, the expression “court of session” would only mean “Court of Session” as presided over by the Sessions Judge in sessions division. In this Chapter relating to bail and bonds, no specific provision is made for Additional Sessions Judges and Assistant Sessions Judges, then, in my opinion, the expression “court of session” occurring in Sees. 437, 438 and 439, would mean the court of session presided over by the Sessions Judge. Under Section 437, the High Court and court of session have been excluded and powers Under Section 437 can be exercised by all other courts and the word “court” occurring in sub-sec, (1) of Section 437 would even mean the court of Additional Sessions Judges or Assistant Sessions Judges in a sessions division. Thus, from this point of view that is, absence of any provision in Chapter XXXIII dealing with the bail and bonds relating to the Additional Sessions Judges and Assistant Sessions Judges, it can be said that the Parliament only intended to mean by the expression “court of session” to be the court of session presided over, by a Sessions Judge and not by Additional Sessions Judges and Assistant Sessions Judges.
25. In Chapter XXXIII, it is significant to note that Chapter XXXIII nowhere expressly provides regarding the powers of the Additional Sessions Judges and Assistant Sessions Judges for grant and cancellation of bail. They can exercise their powers as courts like all other courts before whom the accused appears or is brought. The crucial question therefore, would be whether in provisions of,Secs. 437, 438 and 439, the expression “court of session” would only mean “Court of Session” as presided over by the Judge session division. In this chapter relating to bail and bounds, no specific provision is made for Additional Sessions Judges and Assistant Session judges, then, in my opinion, the expression “court of session” occuring in Secs. 473, 438 and 439, would mean the court of session presided over by the session Judge. Under Section 437, by the High Court and the court of session have been excluded and powers Under Section 437 can be exercised by all other court and the word “Court” occuring in Sub-section (1) of Section 437 would even mean the court Additional Sessions Judges or Assistant Sessions Judges in a sessions division. Thus, from this point of view that is, absence of in any provision Chaptyer XXXIII dealing with the bail and bonds ralating to the Additional Sessions Judges and Assistant Sessions Judges, it can be said that the Parliament only intended to mean by the expression “court of session” to be the court of session presided over by a Sessions Judges and not by Additional Sessions Judges and Assistant Sessions Judges.
26. Section 439 uses the expression court of session” in Sub-section (1) as well as in Sub-section (2) and under Sub-section (2), power has been conferred on the court of session that it may direct any person, who has been released on bail under Chapter XXXIII to be arrested and be committed to the custody. This provision makes it abundantly clear that this power has been conferred only on the court of session, presided over by the Sessions Judge and this power can be exercised in respect of all persons, who have been released on bail under Chapter XXXIII. If under Sub-section (2), “court of session” means “court of session” presided over by the Sessions Judge then under Sub-section (1) a different meaning cannot be given to the expression “Court of Session” and under Sub-section (1) of Section 439, “court of session” would mean the court presided over by the Sessions Judge.
27. Besides the above two reasonings, it is also noteworthy that Sec 439, confers the special powers on High Court and on Court of Session. The intention of the Parliament appears to be that all such powers should be possessed by the superior authorities. The conferment of special powers implies that these powers should be exercised by the superior authorities and it can definitely be said that a court of session presided over by a Sessions Judge, can be taken to be superior enjoying greater powers and greater jurisdiction as compared to Additional Sessions Judge and Assistant Sessions Judges. The powers Under Section 439, are concurrent to the High Court and it does not appear to be the intention of the Parliament that the expression “Court of Session” may even mean the “court of Additional Sessions Judge and Assistant Sessions Judge.” Though, nowhere in the Code, they described as court but undoubtedly, they constitute court within a court by virtue of authority possessed by them. Besides that if we look to the provision contained in Section 9(5) and Section 10(3), it would appear that the Additional Sessions Judges and Assistant Sessions Judges can exercise powers in the absence of the Sessions Judge or his office falling vacant, when such powers are specifically conferred on them. They will exercise those powers as Sessions Judge of a Sessions Division. In the absence of such specific authority, under these provisions, no power can be exercised by them.
28. The Law Commission in its 41st Report in para 39.7 stated the second idea in Sections 497(5) and 498 as:
(ii) Special powers of the High Court and Court of Session
(a) to order release of any person Section 498( 1) second part; and
(b) to order that a person released on bail Under Section 497 or Section 498( 1) be arrested and to commit him to custody-earlier part of Section 497 (5) and Section 498(2);
and noted that the second is a special power of the superior courts, with regard to anticipatory bail, it stated in para 39.9 that it is further of the view that this special power should be conferred only, on the High Court and the court of “session. Assistant Sessions Judges cannot be considered as Superior Courts looking to the clear provisions of their subordination and it would be anomalous and incongruous to say that the expression “Court of Session” excludes Assistant Sessions Judge but includes or covers Additional Sessions Judge, when both of them exercise jurisdiction in a Court of Session.
29. I may now refer to some of the cases, which have been cited at the Bar.
30. In Kalu v. State , the Sub-Divisional Magistrate had granted bail in a case that was pending in his Court Under Section 302, I.P.C. A revision was filed against that order in the Court of the Sessions Judge who transferred the case to the Additional Sessions Judge and on the prayer of the Public Prosecutor, the revision was treated as an application Under Section 497(5), Cr. P.C. (old) and the learned Additional Sessions Judge cancelled the bail. A revision was preferred befoic the High Court and it was contended that the learned Additional Sessions Judge had no authority to make an order Under Section 497(5), Cr. P.C. for the cancellation of the bail and reliance was placed on Ba Maung v. Raparer AIR 1938 Rang 335. The Government Advocate had argued that the Additional Sessions Judge can exercise all the powers of the Sessions Judge Under Section 9, Cr. P.C. This contention was negatived, and it was observed that Section 9, Cr. P.C. has no bearing on the point. Wherever it has been intended that an Additional Sessions Judge or an Assistant Sessions Judge may exercise the powers of the Sessions Judge a special provision has been made in the Criminal Procedure Code. In Sections 193, 409 and 438 an Additional Sessions Judge has been given powers to try a case or to hear an appeal and a revision application in such cases as are specified therein. Under Section 457 the power to cancel bail has been invested in the High Court or the Court of Session. No mention has been made regarding the exercise of those powers by an Additional Sessions Judge or an Assistant Sessions Judge. Obviously therefore it was not contemplated by the Code that the powers relating to the cancellation of bail are to be exercised by an Additional Sessions Judge, except in cases where specific powers in this behalf are conferred on him by the Sessions Judge.”
31. In Hemsingh v. The State 1956 Raj LW 457 : 1957 Cri LJ 156 three accused persons were committed to the Court of Session for trial and the petitioners were discharged by the Magistrate. After committal, the case was transferred to the Addl. Sessions Judge and an application was ‘ filed by the Public Prosecutor for setting aside the order of the Magistrate discharging the petitioners and a prayer was made that the -committing Court be directed to commit the petitioners also to the Court of Additional Sessions Judge. An objection was raised that the Additional Sessions Judge had no jurisdiction to entertain the application. This argument was turned down by him by holding that by virtue of Section 438(2), Cr. P.C. he could hear the application. It was observed by the High Court in revision after referring to the various provisions that the entire scheme of the Code of Criminal Procedure is that an Additional Sessions Judge can try only those original cases, appeals, references and revision which respectively come to him Under Sections 193, 409 and 438, Cr. P.C. As the revision was not transferred to the Additional Sessions Judge, therefore, he could not exercise his powers under Chapter XXXII.
32. In Kameshwar Singh v. Dharmadeo Singh the question was as to whether the Assistant Sessions Judge had power to receive and admit the appeal and to hear it himself. Their Lordships examined the meaning of the expression “Court of Session” in Section 408, Cr. P.C. Their Lordships observed with regard to the rule of interpretation that when the same words or phrases are used in different parts of the same statutet they would ordinarily receive the same meaning, unless the context or the object requires otherwise and where alternative construction are open, the Court will adopt that construction by which the intention of the legislature will be better effectuated or which will be consistent with the smooth working of the system, which the statute purports to regulate and that alternative is to be rejected, which will introduce uncertainty, friction or confusion into the working of the system. Their Lordships observed as under:
It is clear from Section 17(3) that an Assistant Sessions Judge, who exercises jurisdiction in the Court of Session has no separate or. independent entity in the sense that the Court over which he presides while exercising such/ jurisdiction does not constitute an independent Court of Session within the meaning of Section 9(1).
It was not the intention of the Legislature that the power given to Assistant Sessions Judges and Additional Sessions Judges to hear appeals Under Section 409 should include also the power to receive and admit such appeals.
Therefore, the words ‘Court of Session’ occurring in S, 408 refer only to the Court of Sessions presided over by the Sessions Judge and an Additional Sessions Judge or an Assistant Sessions Judge, as a judge of the Court of Session has no power to receive and admit appeals filed in this Court of Session.
33. Irtnima Tehering Bhutia v. State of Sikkim 1981 Cri LJ 1391 the question that arose for consideration, was as to whether the trial by the Additional Sessions Judge when any direction Under Section 193(2), Cr. P.C. was not given is without jurisdiction and, therefore, is void. The Division Bench of the Sikkim High Court observed as under:
An Additional Sessions Judge exercises jurisdiction in one and the same Court of Session established for a Sessions Division Under Section 9(1) and has no separate or independent entity in the sense that Court over which he presides while exercising such jurisdiction “does not constitute an independent Court of Session Under Section 9 but is a part of constituent of the same Court of Session headed by the Sessions Judge.
When the Legislature has expressly and affirmatively provided that Additional Sessions Judge shall try or hear only such cases or appeals as the State Government may direct or the Sessions Judge may make over, the Legislature must be deemed to have provided impliedly and negatively that the Additional Sessions Judge shall not try or hear any other case or appeal. And if- the provisions, have such an obligatory mandate and, therefore, really go to create jurisdiction and regulate the competence of Additional Sessions Judges to try cases or to hear appeals, a breach thereof would strike at the very root of jurisdiction. Thus an Additional Sessions Judge cannot exercise original jurisdiction in the matter of trial of any case unless, the case comes before him under any direction of the State Government or the Sessions Judge. Accordingly, such a trial without any such direction or making over, as in the case before us, would be without jurisdiction and void.
34. In Harilal v. State of Rajasthan 1980 Cri LR (Raj) 546,1 had an occasion to consider the position of Additional Sessions Judge in the scheme of the Criminal Procedure Code. It has been held in this case that the Additional Sessions Judge is not an independent Court within the ‘Court of Session”, as such, he will have no power of direct entertainment of cases. There is only one Court of Session in a sessions division and the Additional Sessions Judge or Assistant Sessions Judge can be appointed to exercise jurisdiction in a Court of Session. When a power is conferred Under Section 194, Cr. P.C. the Court presided over by the Additional Sessions Judge will mean “Court of Session”.
35. A Division Bench decision of the Calcutta High Court is very relevant dealing with the point in question, which is the Superintendent and Remembrancer of Legal Affairs, West Bengal v. Mansur AH 1978 Cri LJ 1497. In that case, the accused-opposite-parties were committed to the Court of Session for trial. The case was transferred to the Court of Assistant Sessions Judge. The bail of one accused was granted by the Assistant Sessions Judge but the bail of the opposite parties was rejected. Therefore, the opposite-parties moved an application Under Section 439, Cr. P.C. for bail to the Sessions Judge, which was granted and a revision was preferred before the High Court. The two contentions were urged on behalf of the State (i) that the Sessions Judge had no jurisdiction to interfere with the order refusing the bail when the case was transferred for trial by him to the Assistant Sessions Judge, and (ii) that in the absence of any specific provision in the Code of Criminal Procedure, 1973 giving jurisdiction to the Sessions Judge for considering a prayer for bail, after it has been rejected by the learned Assistant Sessions Judge the impugned order of the learned Sessions Judge was without jurisdiction. The contentions were negatived and it was observed as under:
The Court of Session presided over by a Sessions Judge has got jurisdiction to entertain an application for bail on behalf of the accused-persons in spite of the fact that their application for bail has already been refused by the Additional Sessions Judge or the Assistant Sessions Judge to whom the case is made over for disposal. This is a special power given to the Court of Session and can be exercised quite independently by that Court.
“Court of Session” and “Sessions Judge” have not been defined in Section 2 meant for definition of certain terms. But the absence of such definition will not alter the position of the Sessions Judge and the Sessions Court in the Sessions Division as mentioned in Section 9, Cr. P.C. In these circumstances ordinarily and generally “Court of Session” will mean the Court of Session in the Sessions Division as presided over by the Sessions Judge as mentioned in Section 9. But if there is any provision in the Code the language of which implies without any ambiguity that the Court of Session includes a Court presided over by the Additional Sessions Judge or an Assistant Sessions Judge, it may be read as such in a wider sense to include such Courts exercising the jurisdiction of a Court of Session. The meaning of “Court of Session” will be determined according to the context and the language used to give a practical and workable meaning. However, with regard to Section 439, there is no doubt that the words “Court of Session” used therein mean the Court of Session presided over by the Sessions Judge and does not include any Court presided over by either an Additional Sessions Judge or an Assistant Sessions Judge subject, however, to Sub-section (5) of Section 9. This section gives special power to the Court of Session presided over by the Sessions Judge as mentioned in Section 9.
Therefore, it cannot be said that when the Sessions case in question committed to the Court of Session was transferred to the Court of Assistant Sessions Judge, the said transferee Court should be deemed to be the Court of Session as contemplated in Section 9 and, therefore, when the bail was refused by the said Assistant Sessions Judge, the Court of Session presided over by the Sessions Judge cannot have any jurisdiction to review the order of the Assistant Sessions Judge or sit in appeal over the order passed by the Assistant Sessions Judge refusing the bail. Section 9 speaks about one Court of Session in the Sessions Division. There should be only one Sessions Judge presiding over the Court of Session. Additional Sessions ; Judges and Assistant Sessions Judges are appointed only to exercise jurisdiction in a; Court of Session. When the Sessions Judge of; the Court of Session of a particular Sessions Division makes over a Sessions Case for trial to an Additional Sessions Judge or an Assistant Sessions Judge, such Judge exercises the jurisdiction in the Court of Session presided over by the Sessions Judge and disposes of the case in exercise of such jurisdiction. The said Additional Sessions Judges or the Assistant Sessions Judges exercising jurisdiction of a Court of Session cannot be held to be Sessions Judges and their Courts cannot be regarded as Courts of Session.Such Additional Sessions Judges or Assistant Sessions Judges are simply vested, in particular, to exercise jurisdiction of a Court of Session in respect of cases made over to them.
Further the use of the words “Court of Session” in Clause (b)ofS. 376orSs. 413 and 414 of the Code does not equate the Court of Session with the Court of the Additional Sessions Judge or the Court of Assistant Sessions Judge in the matter of Section 439 where the Court of Session of a Sessions Division has been particularly vested with special power without mentioning the Additional Sessions Judges or Assistant Sessions Judge or their Courts. The Court of Session and the Sessions Judge have been described and their positions with reference to the Additional Sessions Judge and the Assistant Sessions Judge and their Courts have been clearly delineated and mentioned leaving no scope for confusion.
36. The learned Counsel for the complainant referred to the following observations of their Lordships of the Supreme Court in Gokaraju Rangaraju v. State of Andhra Pradesh :
A person appointed as a Sessions Judge, Additional Sessions Judge or Assistant Sessions Judge, would be exercising jurisdiction in the Court of Session and his judgments and orders would be those of the Court of Session. They would continue to be valid as die judgments and orders of the Court of Session, notwithstanding that his appointment to such Court might be declared invalid.
The above observations are not of any assistance with regard to the question of controversy in the present revision. Their Lordships clearly observed that the Additional Sessions Judge or Assistant Sessions Judge, would be exercising jurisdiction in the Court of Session and as such, his judgment and orders would be those of Court of Session. In a transferred case, such transferee Courts no doubt, act as a Court of Session, so their judgment would certainly be those of the Court of Session. This case does not deal with the question as to whether the expression “Court of Session” occurring in Section 439, Cr. P.C. covers within its embrace the Additional Sessions Judge and Assistant Sessions Judge.
37. Reference has also been made to the observations made in Gurcharan Singh v. State AIR 1978 SC 179 : 1978 Cri LJ 129. In para 21, it has been observed that Section 437, Cr. P.C. is concerned only with the Court of Magistrate. It expressly excluded the High. Court and the Court of Session. It may be stated that their Lordships have not examined the question as to whether the word “Court” appearing in Section 437(b) would also include the Additional Sessions Judge or Assistant Sessions Judge or they would fall under the expression “Court of Session” occurring in S, 437(1), so, on the basis of the above observations, it cannot be taken that after rejection of the application by the Additional Sessions Judge the application Under Section 439, Cr. P.C. is not maintainable before the Sessions Judge of the Sessions Division.
38. I am in respectful agreement with the view taken by the Calcutta High Court in the Superintendent and Remembrancer’s case (1978 Cri LJ 1497) (supra) and for taking the aforesaid view, I have examined the question from the various aspects as considered above. I am therefore clearly and firmly of the view that the legislature has invested special powers on the High Court and on the Court of Session and the Court of Session is equated with the High Court in respect of the powers Under Section 439, Cr. PC. On examining the question from other angles as well the position is clear that the expression “Court of Session” occurring in Section 439, Cr. P.C. means the “Court of Session” presided over by the Sessions Judge. In this view of the matter, the order of the learned Sessions Judge does not appear to be correct and deserves to be set aside.
39. Accordingly, the revision petitions are allowed and the order of the learned Sessions Judge is set aside. It is not necessary to remit the application back for orders as the bail applications have already been considered by this Court as stated by the learned Counsel for the petitioner.