Sections 408 and 409 CrPC: Power of Sessions Judge to Transfer, Withdraw or Recall Cases and Appeals
Sections 408 and 409 of the Code of Criminal Procedure, 1973 (CrPC) formed part of the law governing transfer and withdrawal of criminal cases and appeals by a Sessions Judge. This page explains the provisions as applicable under the CrPC before the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) came into force.
Legal transition: The BNSS came into force on 1 July 2024. The corresponding provisions are Section 448 BNSS (power of Sessions Judge to transfer cases and appeals) and Section 449 BNSS (withdrawal of cases and appeals by Sessions Judges). For proceedings governed by the earlier CrPC, the applicable saving and transition provisions should also be considered.
Section 408 CrPC - Power of Sessions Judge to Transfer Cases and Appeals
Meaning: Section 408 empowered the Sessions Judge to transfer a particular criminal case from one Criminal Court to another Criminal Court within the same Sessions Division when such an order was expedient for the ends of justice.
Sub-section (1): Where it appeared to the Sessions Judge that transfer was expedient for the ends of justice, the Judge could order transfer of a particular case from one Criminal Court to another Criminal Court in the Sessions Division.
Sub-section (2): The Sessions Judge could act on a report from the lower Court, on an application by an interested party, or on the Judge's own initiative.
Sub-section (3): Specified procedural provisions of Section 407 CrPC applied to an application under Section 408, subject to the statutory modification stated in Section 408(3).
The expression "ends of justice" is the controlling statutory standard. The provision therefore concerned judicial transfer within the Sessions Division, rather than a general administrative reassignment unconnected with the statutory conditions.
Section 409 CrPC - Withdrawal of Cases and Appeals by Sessions Judge
Meaning: Section 409 dealt with the Sessions Judge's power to withdraw or recall cases and appeals that had been made over to specified subordinate judicial officers, and with the manner in which the proceeding could thereafter be dealt with.
Sub-section (1): A Sessions Judge could withdraw a case or appeal from, or recall a case or appeal made over to, an Assistant Sessions Judge or Chief Judicial Magistrate subordinate to the Sessions Judge.
Sub-section (2): Before the trial of the case or hearing of the appeal had commenced before an Additional Sessions Judge, the Sessions Judge could recall a case or appeal made over to that Additional Sessions Judge.
Sub-section (3): After withdrawal or recall under sub-section (1) or (2), the Sessions Judge could try the case or hear the appeal personally, or make it over to another competent Court in accordance with the CrPC.
Difference Between Section 408 and Section 409 CrPC
Section 408 was a transfer provision based on the statutory test of what was expedient for the ends of justice and could be invoked on a lower Court report, an interested party's application, or the Sessions Judge's own initiative. Section 409 dealt more specifically with withdrawal or recall of matters that had been made over to subordinate judicial officers. In the case of an Additional Sessions Judge, Section 409(2) expressly operated before commencement of the trial or hearing of the appeal.
Reasons for Transfer or Withdrawal - Section 412 CrPC
Section 412 CrPC required a Sessions Judge or Magistrate making an order under Sections 408, 409, 410 or 411 to record reasons for making the order. A transfer, withdrawal or recall order under Sections 408 or 409 therefore had to be supported by recorded reasons.
Kerala State Amendment to Section 409
The central CrPC text published by India Code records a Kerala State Amendment substituting Section 409. Under that amendment, an appeal to the Court of Session or Sessions Judge is to be heard by the Sessions Judge or an Additional Sessions Judge, subject to the stated proviso regarding appeals heard by an Additional Sessions Judge. State amendments must be checked for their territorial and temporal applicability before reliance.
Corresponding Provisions Under BNSS
For current criminal procedure, Section 448 BNSS corresponds to Section 408 CrPC and Section 449 BNSS corresponds to Section 409 CrPC. The BNSS text should be consulted for proceedings governed by the new law because the wording is not identical in every respect. In particular, Section 448(3) contains an updated compensation amount, and Section 449(1) does not reproduce the earlier reference to an Assistant Sessions Judge.
Related CrPC Provisions
For the wider statutory scheme, see Sections 406 and 407 CrPC - transfer powers of the Supreme Court and High Court and Sections 410, 411 and 412 CrPC - withdrawal, making over of cases and recording of reasons.
This article explains the statutory provisions for general legal information. Applicability may depend on the date of the proceeding, saving provisions, State amendments and judicial orders in the particular case.