1 wp-596-2011 srk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 596 OF 2011 Mahindra Laxman Tawde ...Petitioner Versus The State of Maharashtra & ors. ...Respondents Mr.Khan Abdul Wahab for petitioner. Mrs.P.P.Shinde, APP for State. Mr.Pradeep Bansode i/b. Mrs.Anjali Patil for resp.nos.2 and 3. CORAM: B. H. MARLAPALLE & U.D.SALVI, JJ. June 23, 2011. P.C. 1. Heard. Rule. 2. Respondents waive service. 3. This petition impugns the order dated 14/1/2011 passed by the 2 wp-596-2011 learned Sessions Judge, Greater Mumbai in Misc. Application No.6 of 2011 in Sessions Case No.612 of 2007 and by the said order Sessions Case No.612 of 2007 has been directed to be withdrawn from Court No.7 and assigned to Court No.15 at Seweree. It appears that the said transfer application was moved by the learned APP. 4. When the transfer application was heard and decided, there was no notice to the accused. At the same time the trial was almost towards the end in as much as the recording of the evidence was closed and the recording of statement under Section 313 of Cr.P.C. was to commence. A Division Bench of this Court in the case of Daulatrao D. Dhonde Vs. State of Maharashtra [2002 Bom.C.R. (Cri.) 509] has dealt with the powers of the Sessions Judge to entertain an application under Section 409 of Cr.P.C. for transfer of the pending sessions case from one Additional Sessions Judge to another. The Division Bench held, “6. ... So far as the judicial powers are concerned, the Sessions Judge is not superior to the Additional Sessions Judge. The Sessions Judge has got the administrative powers to allot or assign the work to the different Additional Sessions Judges 3 wp-596-2011 working with him. The administrative power of assignment of work can be exercised by the Sessions Judge until the Additional Sessions Judges commence hearing of the case. Once the case alloted to a particular Additional Sessions Judge is partly heard by that Judge, the Sessions Judge cannot have the power to withdraw the case from him, because so far as the judicial powers are concerned, both are equal. In such cases, the High Court has got the power to withdraw the case as High Court is undoubtedly judicially superior Court.” 5. It is thus clear that the learned Sessions Judge could not have entertained an application under Section 409 of Cr.P.C. for transfer of Sessions Case No.612 of 2007 after the trial had commenced and more so without notice to the accused. He did not have the jurisdiction to entertain such application. Section 409(2) of Cr.P.C. states that at any time before the trial of the case or hearing of the appeal has commenced before the Additional Sessions Judge, the Sessions Judge may recall any case or appeal which he has made over to any Additional Sessions Judge. It is obvious that the power under Section 409 of Cr.P.C. can be exercised before the trial commences or the hearing of the appeal commences. 4 wp-596-2011 6. Hence the impugned order is unsustainable and deserves to be quashed and set aside. The petition succeeds and the impugned order is hereby quashed and set aside. 7. We make it clear that this order is without prejudice to the rights of the State Government to approach this Court with an application for transfer under Section 407 of Cr.P.C. (U.D.SALVI, J.) (B. H. MARLAPALLE, J.)