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Sesh Narayan Bajpai vs State Of Madhya Pradesh on 3 November, 1989

Madhya Pradesh High Court


Sesh Narayan Bajpai vs State Of Madhya Pradesh on 3 November, 1989
Equivalent citations: 1990 CriLJ 1486
Author: B Varma
Bench: B Varma, D Dharmadhikari
JUDGMENT B.C. Varma, J.
1. This petition raises a question of general importance as to scope of Section 10(3) of the Criminal
Procedure Code, 1973 and the right and jurisdiction of Sessions Judge in a given Sessions Division
to transfer applications to another Additional Sessions Judge for disposal. The matter arises thus:
2. Mandla is a Sessions Division with headquarters at Mandla. The Sessions Judge sits at Mandla
where one more Additional Sessions Judge funcitons. Recently, an Additional Sessions Judge has
also been posted at Dindori which is a Tahsil place within the jurisdiction of Sessions Division
Madla. By office order dated 7-7-1989, the Sessions Judge, Mandla, in exercise of powers under
Section 10(3) of the Criminal Procedure Code, 1973, directed that the bail applications and also
applications for grant of interim stay arising out of the cases in Revenue Tahsil Dindori shall be filed
before the Additional Sessions Judge, Dindori. After those applications are. heard, the cases be sent
to Mandla for registration. The relevant part of the order reads as under:
fM.Mksjh jktLo rgfly esa mRi vR;ko';d tekur vkosnu] LFkxu vkns'k dk izLrqrhdj.k bl U;k;ky; ds
vfrfjdr l= U;k;k/kh'k fM.Mksjh ds U;k;ky; esa fd;k tkosxk tgka mu ij lquokbZ dh tkdj ,sls izdj.kks dks
iathc djus ,oa vU; dk;okgh gsrq e.Myk l= U;k;ky; dks izf"kr fd;s tkosaxsA** The petitioner, who is
an advocate practising at Mandla, questions the propriety and legality of this order and his
contention is that Section 10(3) of the Code does not admit of such a course. Section 10(3) of the
Crimnal Procedure Code may now, therefore, be quoted:
"10. Subordination of 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."
2-A. The petitioner, who addressed the Court himself, contends that in exercise powers under
Section 10(3) of the Code, Sessions Judge can make over only urgent applications to an Additional
Sessions Judge and that too when the Sessions Judge is either absent from the Sessions division or
incapable of working. Since the impugned office order is in general terms and requires all bail
applications and applications for staying certain orders of sentence to be filed before the Additional
Sessions Judge, Dindori, says the petitioner, that order is beyond the scope of Section 10(3) of the
Code.

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Sesh Narayan Bajpai vs State Of Madhya Pradesh on 3 November, 1989

3. Section 6 of the Code provides that in every State, among others, there shall be Courts of Session.
Section 9 then requires the State Government to establish a Court of Session for every sessions
division. This Court of Session shall be presided by a Judge to be appointed by the High Court. He
shall be the Sessions Judge of that Sessions division. Sessions Judge of one sessions division can
also be appointed as Additional Sessions Judge of another division. In addition, the High Court may
also appoint Additional Sessions Judges and Assistant Sessions Judges to exercise jurisdiction in a
Court of Session. In the event of the office of Sessions Judge being vacant, Sub-section (5) of Section
9 of the Code permits the High Court to make arrangements for disposal of any urgent application,
which is, or may be, made or pending before the Courts 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. Since we are dealing with an order making arrangements for
disposal of applications for grant of bail as also stay orders, it will be useful, only at this juncture, to
refer to the provisions in the Code relating to bail and bonds and stay orders. Chapter XXXIII of the
Code which includes Sections 437, 438 and 439, contains provisions as to bail and bonds. Section
437 is attracted when a 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. Thus, Section 437 is
inapplicable when a person appears or is brought before the Court of Session. Section 438 confers
power on the High Court or on the Court of Session to release any person on bail in the event of his
arrest on accusation of having committed a non-bailable offence. Similarly, the High Court or the
Court of Session may also direct release of a person accused of an offence and in custody, if the
offence is of the nature specified in Sub-section (3) of Section 437, i.e., when the person is accused
or suspected of the commission of an offence which is punishable with imprisonment extending to
seven years or more of an offence under Chapter VI, Chapter XVI, or Chapter XVII of the Indian
Penal Code or abetment of, or conspiracy or attempt to commit, any such offence. Significantly,
Chapter XXXIII makes no express provision relating to powers of Additional Sessions Judge or
Assistant Sessions Judge for grant or cancellation of bail. Therefore, the expression "Court of
Session" appearing in Sections 437, 438 and 439 shall mean the Court of Session presided over by
Sessions Judge. In this regard, we share the view of Rajasthan High Court, as expressed in Rajesh
Choudhary v. State of Rajasthan. Cr. Revn. Petn. Nos." 216 and 217 of 1986, decided on 12-11-1986 :
(1987) 1 Reports 342 : (1987 Cri LJ 411)). The Additional Sessions Judges and Assistant Sessions
Judges will thus be no Court of Session but will exercise limited jurisdiction conferred on them by
various other provisions. The jurisdiction of the Additional Sessions Judges and Assistant Sessions
Judges is thus narrower. They will exercise such jurisdiction over cases which are transferred to
them by Sessions Judge. One of such instances may be found under Section 194 which confers
jurisdiction upon Additional Sessions Judges and Assistant Sessions Judges to try only those cases
which have been transferred to them to be tried by the Court of Session. Similarly, under Section
381, the Additional Sessions Judges and Assistant Sessions Judges shall hear only those appeals as
are made over to them by the Sessions Judge. Additional Sessions Judges will exercise all powers of
Sessions Judge under Chapter XXX in respect of cases which have been transferred to him (Section
400). The cases so made over can even be called back by the Sessions Judge.
4. As regards urgent applications, Section 10(3), as seen above, confers jurisdiction upon the
Sessions Judge to transfer those applications to Additional Sessions Judges or Assistant Sessions
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Sesh Narayan Bajpai vs State Of Madhya Pradesh on 3 November, 1989

Judges or the Chief Judicial Magistrate as the case may be, and, in such cases, those courts shall
have jurisdiction to deal with those applications. It is needless to say that the applications
mentioned in Section 10(3) will include applications for release on bail as also applications for
stay/suspension of sentences. The power in this Section 10(3) may be exercised by the Sessions
Judge only in cases when there is urgency of hearing any application. Apparently it applied to
hearing and disposal of only applications and that too when immediate hearing of such application
is necessary. It is also clear from the terms of this sub-section that the jurisdiction in making over
for disposal of the urgent application may be exercised by him only (i) when he is absent, and (ii) he
is unable to act. It is only in the event of these exigencies that the urgent applications may be made
over for disposal of to the Additional Sessions Judge or Assistant Sessions Judge. These two
conditions do not have to exist simultaneously. The power can be exercised in case of any of the
aforesaid two eventualities. "At the absence of the Sessions Judge" spoken of means the absence
from the sessions division itself. If the Sessions Judge is present not at headquarters of the sessions
division but even at a different place in the sessions division, this jurisdiction cannot be exercised.
This would also include the situation when the sessions Judge is on leave and is not in the office.
"Inability to act" however may arise for different reasons and we refrain from categorising them for
simple reason that this inability may depend upon local conditions as well. The Sessions Judge may
be overburdened or may be otherwise busy in the administrative work. It, however, must be left to
the discretion of the Sessions Judge to decide if he is not able to act in the matter of disposal of
urgent applications.
5. Question, however, is whether every time the application is made, the Sessions Judge should take
a decision in terms of Section 10(3) to authorise the Additional Sessions Judge or Assistant Sessions
Judge or in their absence to the Chief Judicial Magistrate for disposal of application or pass a
general order in that regard. We are of opinion that issuance of general order should be made
permissible. One of the reasons for taking such a view is the expeditious disposal of the application
as the power itself has to be exercised for disposal of urgent applications. The time consumed in the
making of such an application to and its disposal in terms of Section 10(3) by the Sessions Judge
and then making over that application for disposal to the Additional or Assistant Sessions Judge
who may not necessarily be posted at the same place where the Sessions Judge may sit (as in the
present case) may at times cause considerable delay in disposal of that application and thus defeat
the very purpose which the provision seeks to achieve. The underlying idea is that urgent
applications should be disposed of quickly and without any delay. Any working method employed by
the District Judge to achieve the purpose of the provisions must be upheld. If the Sessions Judge
with the existing workload with him feels that he may not be able to take up the urgent applications
immediately for disposal because of that work load, he may well issue general orders as has been
done in the present case requiring such applications to be dealt with by the Additional Sessions
Judge. We do not see any reason to think that making of provision for disposal of urgent application
in terms of Section 10(3) should exclude presentation of that application initially before the
Additional Sessions Judge or the Assistant Sessions Judge provided the pre-requisite condition for
exercise of that jurisdiction exist. The notification in question relates to the presentation of such
urgent application for grant of bail or for stay before the Additional Sessions Judge, Dindori. Court
of Additional Sessions Judge at Dindori has been recently established apparently for the reason that
it was felt that urgent applications of the nature specified in the notification arising from Dindori
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Sesh Narayan Bajpai vs State Of Madhya Pradesh on 3 November, 1989

Tahsil of Mandla district took considerable time for presentation and disposal of such applications
at Dindori which is at distance of about 90 kilometers from Dindori and is only connected by road.
The transport facilities are also not that efficient. During the rainy season, the two places Mandla
and Dindori are practically inaccessible to each other. It is apparent that because of the inability to
act on such applications to achieve the purpose of their expeditious disposal, that learned Sessions
Judge Mandla in his wisdom has issued the order in question and we see no reason to hold that
order as illegal or without jurisdiction or in contravention of provision of Section 10(3). The view
that we have taken makes the provision more effective and workable and serves the cause of those
who need immediate disposal of their applications for grant of bail or for suspension of sentence.
6. Consequently, we uphold the notification in question as valid and reject this petition. The petition
is dismissed. There shall be no order as to costs.

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