Aggrieved Party Cannot Use Section 407 CrPC to Challenge a Sessions Judge's Transfer Order; Allahabad HC Dismisses Application
The Allahabad High Court held that a transfer order passed by a Sessions Judge under Section 408 CrPC can only be challenged by invoking the inherent powers of the High Court under Section 482 CrPC, not by filing a fresh petition under Section 407 CrPC. On the merits too, the court found no illegality in transferring a part-heard trial to the court presided by the officer who had recorded nine prosecution witnesses.
On 7 July 2026, Justice Subhash Vidyarthi, sitting singly at the Lucknow Bench of the Allahabad High Court, dismissed a criminal transfer application filed by Satyendra Nath Shukla, the complainant in Sessions Trial No. 2707 of 2024. Shukla had challenged an order dated 29 June 2026 of the Sessions Judge, Lucknow, which had transferred the trial — arising out of FIR No. 416 of 2013, Police Station Gomti Nagar, Lucknow — from the Court of Additional Session Judge/Special Judge ATS, Lucknow to the Court of Additional Session Judge, Court No. 4/Special Judge Gangsters Act, Lucknow. The court held that such a challenge, directed at a Section 408 transfer order allowed by the Sessions Judge, could not be entertained under Section 407 CrPC. It examined the petition on merits under Section 482 CrPC and found no ground for interference.
The Trial, the Transfer, and the Complaint
Sessions Trial No. 2707 of 2024 was being heard by the Court of Additional Session Judge/Special Judge ATS, Lucknow, while that court was presided over by Shri Abhinay Kumar Mishra, HJS. He recorded the testimony of prosecution witnesses PW-1 through PW-9. Thereafter, Shri Abhinay Kumar Mishra was transferred to the Court of Additional Session Judge, Court No. 4/Special Judge Gangsters Act, Lucknow — a different court within the same Sessions Division. Shri Shashwat Pandey, HJS, took over the ATS court and recorded the deposition of PW-10.
On 14 May 2026, the opposite party no. 2 filed Criminal Misc. Case No. 783 of 2026 before the Sessions Judge, Lucknow under Section 408 CrPC, seeking transfer of the trial to the Court of Additional Session Judge, Court No. 5/Special Judge Gangsters Act, Lucknow, so that Shri Abhinay Kumar Mishra — who had heard the bulk of the prosecution evidence — could continue and conclude the trial. The ground pressed was that judicial continuity, fair trial, proper appreciation of evidence, and judicial economy all favoured continuation before the same presiding officer.
Satyendra Nath Shukla, the complainant, was impleaded as a party and opposed the application. He argued that the transferee court had already recorded the testimony of PW-10, that no allegation of bias had been levelled against the presiding officer of the ATS court, that the prosecution evidence was complete, and that the court to which the case had already been transferred had jurisdiction to conclude the trial.
The Sessions Judge allowed the transfer application on 29 June 2026, relying on Section 326 CrPC and a Division Bench decision of the Allahabad High Court in Punjab Singh v. State of U.P. : 1983 Cr.L.J. 205. The trial was transferred to the Court of Additional Session Judge, Court No. 4/Special Judge Gangsters Act, Lucknow — the court now presided by Shri Abhinay Kumar Mishra.
The Wrong Forum: Section 407 v. Section 482 CrPC
Shukla approached the High Court under Section 407 CrPC. Justice Vidyarthi identified a threshold difficulty with this route.
Section 407(2) CrPC contains a proviso stating that no application shall lie to the High Court for transferring a case from one Criminal Court to another Criminal Court in the same sessions division unless an application for such transfer has first been made to the Sessions Judge and rejected by him. The court read this proviso alongside the broader scheme of Sections 407 and 408.
The court reasoned that when a party files a transfer application before the Sessions Judge under Section 408 CrPC and that application is rejected, the aggrieved party may approach the High Court under Section 407 CrPC. That is the pathway the proviso contemplates. However, when the Sessions Judge allows the transfer application under Section 408, the person aggrieved by the resulting order cannot challenge it by filing another application under Section 407 CrPC. The mechanism of Section 407 is not designed to sit in appeal or revision over a Sessions Judge's order allowing transfer. In that situation, the correct route is to invoke the inherent powers of the High Court under Section 482 CrPC.
Rather than dismiss the petition on this technical ground after detailed arguments had already been heard on the merits, Justice Vidyarthi chose to examine the petition in exercise of the court's inherent powers under Section 482 CrPC.
Section 326 CrPC, the Punjab Singh Precedent, and the Arguments on Merit
Counsel for Shukla attacked the Sessions Judge's reliance on Section 326 CrPC and on Punjab Singh. His argument had two limbs.
First, Section 326 CrPC provides that when a judge or magistrate who has heard and recorded evidence ceases to exercise jurisdiction and is succeeded by another, the successor may act on the evidence already recorded. The section, counsel argued, specifically confers jurisdiction on the successor to proceed. It does not provide that where the original presiding officer has merely been transferred to another court within the same sessions division, the trial must follow that officer.
Second, counsel contended that Punjab Singh was decided under Section 350 of the Criminal Procedure Code, 1898, which had since been repealed. Section 326 of the Code of 1973 — which replaced Section 350 — does not reproduce the provision on which Punjab Singh rested. Counsel placed reliance on the Supreme Court's decisions in Ranbir Yadav v. State of Bihar : (1995) 4 SCC 392, Bhaskar alias Prabhaskar v. State represented by Inspector of Police, Vellore Taluk Police Station : (1999) 9 SCC 551, and a coordinate bench decision of the Allahabad High Court in Anil Kumar Agarwal v. State of U.P. : (2015) 89 ACC 723.
Justice Vidyarthi examined the legislative history traced by the Supreme Court in Ranbir Yadav. Under Section 350 of the Code of 1898, the presiding officer who succeeded the original officer had two options: act on the evidence already recorded, or re-summon witnesses and recommence the inquiry or trial entirely. After the 1955 amendment and through the 1973 Code, the option of a de novo trial was removed. The successor can now only re-summon a witness already examined for further examination; a full fresh trial is no longer available. The Supreme Court in Ranbir Yadav read this change as the legislature taking away “the well-established right of the accused to claim a de novo trial.”
In Bhaskar alias Prabhaskar, the Supreme Court observed that the old concept — that the very same judicial officer who recorded evidence must decide the case — was abandoned because repeated re-examinations of witnesses caused enormous expense and delay without proportionate benefit. The legislature extended to all trial courts the option to act on a predecessor's record.
In Anil Kumar Agarwal, a coordinate bench of this court, after referring to Bhaskar, Punjab Singh, and Ranbir Yadav, found no merit in a transfer application on the premise that the transferee court had jurisdiction to decide the trial.
Why the Sessions Judge's Order Did Not Occasion Interference
Justice Vidyarthi drew a clear distinction between the question of jurisdiction and the question of transfer. The submissions canvassed by Shukla — that the successor court has jurisdiction under Section 326 CrPC, that no bias is alleged, that prosecution evidence is complete — addressed the wrong question. The Sessions Judge had not transferred the trial on the ground that the ATS court lacked jurisdiction. He transferred it because continuation of trial before the officer who had already recorded nine witnesses' testimony would advance the ends of justice. Both the ATS court and the Gangsters Act court had jurisdiction. The judgments in Ranbir Yadav, Bhaskar, and Anil Kumar Agarwal, which deal with the successor court's power to act on its predecessor's record, were held to have no bearing on the validity of a discretionary transfer order under Section 408 CrPC.
The court identified the applicable standard for interference under Section 482 CrPC in such cases: an order passed by the Sessions Judge after hearing the parties and exercising the discretion conferred by Section 408 CrPC can only be set aside if it occasions an abuse of the process of law or defeats the ends of justice.
On the facts, neither condition was satisfied. The Sessions Judge had formed a reasoned view that completion of the trial by the presiding officer who had observed the demeanour of PW-1 to PW-9 — described as all the witnesses of fact — would secure the ends of justice in a better manner. When two courts within the same sessions division both have jurisdiction over a trial, the Sessions Judge has discretion to allocate the matter to either. The Sessions Judge had also invited a report from Shri Abhinay Kumar Mishra, who confirmed that the prosecution evidence had not been completed when he was transferred and that he had not heard submissions of the parties.
Justice Vidyarthi held that the impugned order neither amounted to an abuse of process, nor defeated the ends of justice, nor warranted exercise of the High Court's inherent powers.
Order
Justice Subhash Vidyarthi dismissed Transfer Application (Criminal) No. 79 of 2026 as lacking merit. The order dated 29 June 2026 of the Sessions Judge, Lucknow, transferring Sessions Trial No. 2707 of 2024 (arising out of Crime No. 416 of 2013, Police Station Gomti Nagar, Lucknow) to the Court of Additional Session Judge, Court No. 4/Special Judge Gangsters Act, Lucknow was left undisturbed. The order was certified as a speaking order and as reportable.