Court of Session :
Section – 9. (1) The State Government shall establish a Court of Session for every sessions division.
(2) Every Court of Session shall be presided over by a Judge, to be appointed by the High Court.
(3) The High Court may also appoint Additional Sessions Judges and Assistant Sessions Judges to exercise jurisdiction in a Court of Session.
(4) The Sessions Judge of one sessions division may be appointed by the High Court to be also an Additional Sessions Judge of another division, and in such case he may sit for the disposal of cases at such place or places in the other division as the High Court may direct.
(5) Where the office of the Sessions Judge is vacant, the High Court may make arrangements for the disposal of any urgent application which is, or may be, made or pending before such Court 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 ; and every such Judge or Magistrate shall have jurisdiction to deal with any such application.
(6) The Court of Session shall ordinarily hold its sitting at such place or places as the High Court may, by notification, specify ; but, if, in any particular case, the Court of Session is of opinion that it will tend to the general convenience of the parties and witnesses to hold its sittings at any other place in the sessions division, it may, with the consent of the prosecution and the accused, sit at that place for the disposal of the case or the examination of any witness or witnesses therein.
Explanation : For the purposes of this Code, “appointment” does not include the first appointment, posting or promotion of a person by the Government to any service, or post in connection with the affairs of the Union or of a State, whereunder any law, such appointment, posting or promotion is required to be made by Government.
STATE AMENDMENTS
UTTAR PRADESH
■ Section 9(5A)
Insert the following sub-section after sub-section (5) :
“(5A) In the event of the death, resignation, removal or transfer of the Sessions Judge, or of his being incapacitated by illness or otherwise for the performance of his duties, or of his absence from the place at which his Court is held, the senior-most among the Additional Sessions Judges and the Assistant Session Judges present at the place, and in their absence the Chief Judicial Magistrate shall without relinquishing his ordinary duties assume charge of the office of the Sessions Judge and continue in charge thereof until the office is resumed by the Sessions Judge or assumed by an officer appointed thereto, and shall subject to the provision of this Code and any rules made by the High Court in this behalf, exercise any of the powers of the Sessions Judge.”—Vide U.P. Act No.1 of 1984.
■ Sub-section (6)
Insert following proviso :
“Provided that the Court of Session may hold, or the High Court may direct the Court of Session to hold, its sitting in any particular case at any place in the sessions division, where it appears expedient to do so for considerations of internal security or public order, and in such cases, the consent of the prosecution and the accused shall not be necessary.”—Vide Uttar Pradesh Act No. 16 of 1976.
WEST BENGAL
■ Section 9(3)
Insert the following provisos to sub-section (3) :
“Provided that notwithstanding anything to the contrary contained in this Code, an additional Sessions Judge in a sub-division, other than the sub-division, by whatever name called, wherein the headquarters of the Sessions Judge are situated, exercising jurisdiction in a Court of Session, shall have all the powers of the Sessions Judge under this Code, in respect of the cases and proceedings in the Criminal Courts in that sub-division, for the purposes of sub-section (7) of section 116, sections 193 and 194, clause (a) of section 209 and sections 409, 439 and 449 :
Provided further that the above powers shall not be in derogation of the powers otherwise exercisable by an Additional Sessions Judge or a Sessions Judge under this Code.”—Vide W.B. Act No. 24 of 1988.
COMMENTS
Genesis of the provision – In the case of State of Assam v. Ranga Muhammad AIR 1967 SC 903, the Supreme Court has held that all transfers of District Judges (which under article 236 of the Constitution includes Sessions Judges, Additional Sessions Judges, Asstt. Sessions Judges and Chief Presidency Magistrates), must be made only by the High Court and not by the Government. The expression “control over district courts” used in article 235 of the Constitution covers “posting”, “appointment”, “promotion”, etc. The Government’s power under article 233 extends only to the making of the first appointment to the cadre of District Judges. Accordingly, section 9 is in two parts : the first part states that the State Government shall establish a Court of Session for every sessions division and the second part states that the High Court shall appoint a Judge of such court. The other sub-sections also refer to the High Court.
Sub-sections (5) and (6) – Provision has been made in sub-section (5) for the disposal of work of a Sessions Judge when the office becomes suddenly vacant (by reason, say, of the transfer or death of the Judge or otherwise). Sub-section (6) provides that a Court of Session will ordinarily hold its sitting at the place or places specified by the High Court.
Explanation – The Explanation clarifies the intention that “the provisions relating to the appointment of Sessions Judges and Magistrates are not repugnant to the provisions of the Constitution or any other law relating to the first appointment and posting of a person to the relevant service or post”.