In this connection, I would like to further add as under:
Section 6 of the Code provides for following classes of Criminal Courts –
“6. Classes of Criminal Courts.
Besides the High Courts and the courts constituted under any law, other than this Code, there shall be, in every State, the following classes of Criminal Courts, namely.
(i) Courts of Session;
(ii) Judicial Magistrate of the first class and, in any Metropolitan area, Metropolitan Magistrate;
(iii) Judicial Magistrate of the second class; and
(iv) Executive Magistrate.”
Section 23 of the Code says that all Executive Magistrates shall be subordinate to the District Magistrate. As per Bombay Police Act, 1951 Commissioner is the District Magistrate for the Greater Mumbai.
Section 23 reads as under:
“23. Subordination of Executive Magistrates.
(1) All Executive Magistrates, other than the Additional District Magistrate, shall be subordinate to the District Magistrate, and every Executive Magistrate (other than the Sub-divisional Magistrate) exercising powers in a Sub -division shall also be subordinate to the Sub-divisional Magistrate, subject, however, to the general control of the District Magistrate.
(2) The District Magistrate may, from time to time, make rules or give special orders, consistent with this Code, as to the distribution of business among the Executive Magistrates subordinate to him and as to the allocation of business to an additional District Magistrate.”
Ss. 407 and 408 deal with Powers of High Court to transfer cases and appeals:
“407. Power of High Court to transfer cases and appeals.
(1) Whenever it is made to appear to the High Court-
(a) That a fair and impartial inquiry or trial cannot be had in any Criminal Court subordinate thereto, or
(b) That some question of law of unusual difficulty is likely to arise; or
(c) That an order under this section is required by any provision of this Code, or will tend be the general convenience of the parties or witnesses, or is expedient for the ends of, justice,
it may order-
(i) That any offence be inquired into or tried by any court not qualified under sections 177 to 185 (both inclusive), but in other respects competent to inquire into or try such offence;
(ii) That any particular case, or appeal, or class of cases or appeals, be transferred from a Criminal Court subordinate to its authority to any other such Criminal Court of equal or superior jurisdiction;
(iii) That any particular case be committed for trial of to a Court of Session; or
(iv) That any particular case or appeal be transferred to and tried before itself.
(2) The High Court may act either on the report of the lower court, or on the application of a party interested, or on its own initiative:
Provided 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 been made to the Sessions Judge and rejected by him.
408. Power of Sessions Judge to transfer cases and appeals.
(1) Whenever it is made to appear to a Sessions Judge that an order under this sub-section is expedient for the ends of justice, he may order that any particular case be transferred from one Criminal Court to another Criminal Court in his session's division.
(2) The Sessions Judge may act either on the report of the lower court, or on the application of a party interested or on his own initiative.
(3) The provisions of sub-sections (3), 4), (5), (6), (7) and (9) of section 407 shall apply in relation to an application to the Sessions Judge for an order under sub-section (1) as they apply in relation to an application to the High Court for an order under subsection (1) of section 407, except that sub-section (7) of that section shall so apply as if for the words "one thousand" rupees occurring therein, the words "two hundred and fifty rupees" were substituted.”
Considering the language of above 2 Sections, the transfer application ought to go before the Sessions Court first. But, can a judicial forum transfer a matter pending before the executive forum (although function of an Executive Magistrate u/s. 107 is judicial one). Doubt also arises from the fact that an Executive Magistrate is direct subordinate to District Magistrate and not to any Judge or Judicial Forum.
Another provision which deals with transfer of proceeding is Section 411 of the code, which reads as under:
“411. Making over or withdrawal of cases by Executive Magistrates.
Any District Magistrate or Sub-divisional Magistrate may-
(a) Make over, for disposal, any proceeding that has been started before him, to any Magistrate subordinate to him;
(b) Withdraw any case from, or recall any case which he has made over to, any Magistrate subordinate to him, and dispose of such proceeding himself or refer it for disposal to any other Magistrate.”
But, I doubt that, a case (i.e. Section 107 proceeding) is initiated by the Executive Magistrate (say Assistant Commissioner of Police) having local jurisdiction upon report from the local police station, can be said to have made over to him by the District Magistrate or Sub-divisional Magistrate (say Commissioner of Police).