Section 409 CrPC: Withdrawal of Cases and Appeals by Sessions Judges
Section 409 of the Code of Criminal Procedure, 1973 (CrPC) empowered a Sessions Judge to withdraw or recall specified cases and appeals assigned to subordinate judicial officers. Its corresponding provision under the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) is Section 449.
Meaning and scope of Section 409 CrPC
Withdrawal means taking a case or appeal away from a court to which it was assigned; recall means taking back a case or appeal previously made over by the Sessions Judge. The provision concerns judicial allocation of cases, not withdrawal of criminal prosecution by a prosecutor.
Under Section 409(1), the Sessions Judge could withdraw or recall a case or appeal from an Assistant Sessions Judge or a subordinate Chief Judicial Magistrate. Under Section 409(2), recall from an Additional Sessions Judge was expressly limited to the period before commencement of the trial or hearing of the appeal.
Section 409 CrPC, 1973: Statutory text
409. Withdrawal of cases and appeals by Sessions Judges
(1) A Sessions Judge may withdraw any case or appeal from, or recall any case or appeal which he has made over to, any Assistant Sessions Judge or Chief Judicial Magistrate subordinate to him.
(2) At any time before the trial of the case or the hearing of the appeal has commenced before the Additional Sessions Judge, a Sessions Judge may recall any case or appeal which he has made over to any Additional Sessions Judge.
(3) Where a Sessions Judge withdraws or recalls case or appeal under sub-section (1) or sub-section (2), he may either try the case in his own Court or hear the appeal himself, or make it over in accordance with the provisions of this Code to another Court for trial or hearing, as the case may be.
Section 449 BNSS, 2023: Corresponding current law
Section 449 BNSS retains the central power of the Sessions Judge to withdraw or recall assigned cases and appeals. Unlike the former Section 409(1), its first sub-section refers to the Chief Judicial Magistrate but does not refer to an Assistant Sessions Judge.
449. Withdrawal of cases and appeals by Sessions Judges
(1) A Sessions Judge may withdraw any case or appeal from, or recall any case or appeal which he has made over to a Chief Judicial Magistrate subordinate to him.
(2) At any time before the trial of the case or the hearing of the appeal has commenced before the Additional Sessions Judge, a Sessions Judge may recall any case or appeal which he has made over to any Additional Sessions Judge.
(3) Where a Sessions Judge withdraws or recalls case or appeal under sub-section (1) or sub-section (2), he may either try the case in his own Court or hear the appeal himself, or make it over in accordance with the provisions of this Sanhita to another Court for trial or hearing, as the case may be.
Conditions, reasons and effect of withdrawal
1. Who may exercise the power?
The Sessions Judge of the relevant sessions division exercises the statutory power. The authority is not a general power for any party to select a preferred judge.
2. When can a case before an Additional Sessions Judge be recalled?
Section 409(2) CrPC and Section 449(2) BNSS expressly permit recall of a case or appeal made over to an Additional Sessions Judge only before its trial or appeal hearing has commenced. Other transfer powers must be considered separately where appropriate.
3. What happens after withdrawal or recall?
The Sessions Judge may hear the appeal or try the case personally, or assign it to another competent court in accordance with the applicable criminal procedure law.
4. Must reasons be recorded?
Yes. Section 412 CrPC required reasons to be recorded for an order under Section 409. The corresponding requirement is now contained in Section 452 BNSS, which applies to orders under Sections 448 to 451 BNSS.
5. How is this different from a transfer application?
Section 408 CrPC (now Section 448 BNSS) addresses the Sessions Judge's power to transfer cases and appeals where expedient for the ends of justice. Section 409 CrPC (now Section 449 BNSS) specifically addresses withdrawal or recall of matters made over to specified judicial officers. Their conditions should not be treated as interchangeable.
Kerala state amendment note
The source text historically included a Kerala note referring to Kerala Act 5 of 1957, Section 4, with the heading "Appeals to Court of Session how heard" and a provision for appeals heard by Sessions Judges or Additional Sessions Judges. That 1957 reference predates the CrPC, 1973, and should not be treated as a verified substitution of Section 409 CrPC or as an amendment to Section 449 BNSS. The current applicability of any Kerala-specific procedural amendment should be checked against the relevant state legislation and notifications.
Official legislation and further reading
For authoritative statutory text and any subsequent amendments, consult the India Code official legislation portal, the Bureau of Police Research and Development BNSS text, and the government-hosted BNSS text and CrPC correspondence table. Also see the CrPC section index.
This article provides general legal information. The procedural law applicable to a particular proceeding depends on its facts, commencement date, transitional provisions, and judicial interpretation.