1 (CRA 381 of 2010) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL REVISION APPLICATION NO. 381 OF 2010 IN CRIMINAL APPLICATION NO.3368 OF 2010 Rahim Ismail Shaikh & Ors. ...Applicants Vs. The State of Maharashtra ...Respondents ----- Mr.M.S. Mohite for Applicants Mr.A.S. Shitole -APP for the State ----- CORAM: V.M. KANADE J. DATED: 31ST AUGUST, 2010 P.C. 1. Heard the learned counsel appearing on behalf of the Applicants and the learned APP for the State. 2. Being aggrieved by the order dated 21s June,2010 passed by the Sessions Judge, Pune, dismissing the application filed by the Applicant seeking transfer of the case to another Sessions Court, the present revision application has been filed. 3. Shri Mohite, the learned counsel appearing on 2 (CRA 381 of 2010) behalf of the Applicants submitted that the Sessions Court has erred in dismissing the application on the ground that it is not maintainable. He submitted that the Trial Court has proceeded to decide the application while treating it an application under section 409, though the said application was, in fact, an application filed under section 408 of the Cr.P.C. He submitted that the said application for transfer was filed by the accused through jail and, thereafter, notice was given through their advocate. 4. I have heard the learned counsel for the Applicants and the learned APP for the State, in my view, the Sessions Court has clearly committed an error of law which is apparent on the face of record. Section 409 contemplates that the Sessions Judge has an alternative power to transfer the sessions cases from one Additional Sessions Judge to another. However, under section 408, he has a power to consider application for transfer in part heard cases if 3 (CRA 381 of 2010) apprehension is expressed by the accused that he may not get justice in that Court. In my view, the Sessions Court has erred in relying on a judgment of the Division Bench of this Court in the case of Daulatrao Dashrath Dhonde vs. State of Maharashtra and others reported in 2002 Bom.C.R.(Cri.)509. In the said case, the constitutional validity of the section 409 was challenged and there was a dispute that the application for transfer was filed only under section 409. Since in the present case, the accused have specifically expressed their apprehension of getting justice from the Sessions Court, the said application application obviously is an application under section 408. The ratio of the said judgment, therefore, is not applicable to the facts of the present case. The Full Bench Judgment of the Allahabad High Court in the case of Radhey Shyam and another vs. State of U.P. Reported in 1984(2) Cri. LJ 312 has held that a Sessions Judge also has a power to transfer part heard cases from one Court to another and that 4 (CRA 381 of 2010) provisions of section 408 and 409 operate in different cases. 5. In my view, the ratio of the said judgment of Full Bench is squarely applicable to the facts of the present case. The impugned order is, therefore, set aside and the matter is remanded back to the Sessions Court. Liberty is granted to the Applicants to apply for amendment for adding additional grounds. The Sessions Court shall then decide the case on merits and in accordance with law, preferably within four weeks. (V.M. KANADE J.)