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2002 DIGILAW 270 (HP)

TARA CHAND v. STATE OF HIMACHAL PRADESH

2002-09-19

R.L.KHURANA

body2002
JUDGMENT R.L. Khurana, J.—The appellant Tara Chand, hereinafter referred to as the accused, upon having been tried for the offence under Section 306, Indian Penal Code, stands convicted for such offence by the learned Sessions Judge, Solan vide judgment dated 27.11.1998 and sentenced to rigorous imprisonment for four years and to pay a fine of Rs. 5,000/-. In default of payment of fine, he has been sentenced to undergo imprisonment for a further period of six months. 2. The prosecution story need not be stated in the present case since the appeal is being disposed of simply on a legal question. Suffice to say that upon the accused having been committed to the court of Sessions for trial for the offence under Section 306, Indian Penal Code, by the learned Chief Judicial Magistrate, Solan, the learned Sessions Judge, Solan on 25.3.1996 assigned the case for disposal in accordance with law to the Additional Sessions Judge, Solan. The learned Additional Sessions Judge to whom the case was assigned on 17.7.1996 on, finding a prima facie case against the accused framed a charge for the offence under Section 306, Indian Penal Code, to which the accused pleaded not guilty and claimed trial. Having recorded the plea of the accused, the learned Additional Sessions Judge proceeded with the trial of the accused. The evidence of the prosecution was closed on 11.3.1997. The statement of the accused under Section 313, Code of Criminal Procedure, was recorded on 29.3.1997. Thereafter the defence evidence was recorded. Such defence evidence was concluded on 5.9.1997 and the case was thereafter posted for arguments. The arguments in the case were heard by the learned Additional Sessions Judge, Solan on 20.3.1998 and judgment reserved. The judgment could not be pronounced since, as per the record, in the meanwhile, the learned Additional Sessions Judge had proceeded on leave. The case was posted before the learned Additional Sessions Judge on 23.4.1998 when he directed the re-hearing of the case on 29.4.1998 when it was again adjourned to 18.6.1998. In the meanwhile, the officer who was then working as Additional Sessions Judge, Solan was transferred. No successor was appointed. On 3.11.1998, the case was taken up by the learned Sessions Judge, Solan who directed that the case be posted for arguments on 24.11.1998. In the meanwhile, the officer who was then working as Additional Sessions Judge, Solan was transferred. No successor was appointed. On 3.11.1998, the case was taken up by the learned Sessions Judge, Solan who directed that the case be posted for arguments on 24.11.1998. Arguments were heard in the case by the learned sessions Judge on 24.11.1998 and vide judgment dated 27.11.1998 recorded by the learned Sessions Judge, the accused came to be convicted and sentenced as aforesaid. 3. Feeling aggrieved by the conviction and sentence recorded against him. The accused has come up before this Court by way of the present appeal assailing such conviction and sentence. 4. At the very outset, an objection was raised on behalf of the accused that the Sessions Judge had no power and jurisdiction to hear the case and to record the impugned Order of conviction. 5. Admittedly, the entire prosecution evidence in the present case as well as the statement of the accused under Section 313, Code of Criminal Procedure and the defence evidence led by the accused was recorded by the learned Additional Sessions Judge, Solan. Section 326 of the Code of Criminal Procedure empowers the successor Judge to act on the evidence recorded by his predecessor or partly recorded by his predecessor and partly recorded by himself. A discretion has been given to the successor Judge under the proviso to sub-section (1) of Section 326, Code of Criminal Procedure to re-summon and further examine any of the witnesses whose evidence has already been recorded by his predecessor. 6. As stated above, no successor in office to the Court of Additional Sessions Judge, Solan was appointed by the High Court and such Court remained vacant. Sub-section (2) of Section 326, Code of Criminal Procedure, provides that when a case is transferred under the provisions of the Code from one Judge to another, the former shall be deemed to cease to exercise jurisdiction therein and to be succeeded by the latter within the meaning of sub-section (1). 7. Reading sub-sections (1) and (2) of Section 326, Code of Criminal Procedure together, the successor Judge would be the person who has either been appointed to the court where the case was pending or such court to which the case comes to be transferred by the competent authority for disposal under the provisions of the Code of Criminal Procedure. 8. Reading sub-sections (1) and (2) of Section 326, Code of Criminal Procedure together, the successor Judge would be the person who has either been appointed to the court where the case was pending or such court to which the case comes to be transferred by the competent authority for disposal under the provisions of the Code of Criminal Procedure. 8. In the present case, there is nothing on the record to show that at any time the case against the accused which was pending before the Additional Sessions Judge, Solan came to be transferred to the Sessions Judge, Solan so as to make the Sessions Judge, Solan as successor to the Court of Additional Sessions Judge, Solan. 9. The record also does not show if the case was ever withdrawn by the Sessions Judge from the Court of Additional Sessions Judge, Solan to his own files by exercising the powers under Section 409, Code of Criminal Procedure. Even otherwise, the powers under Section 409, Code of Criminal Procedure, could not have been exercised by the Sessions Judge, Solan for withdrawing the case which was pending trial before the learned Additional Sessions Judge to his own files or to transfer it to another Court for disposal. 10. Under Section 409 (2) of the Code of Criminal Procedure, a Sessions Judge can withdraw or recall a case or appeal for trial either by himself or to assign the case to another Court for trial only before the trial has commenced. Trial commences under the law after the charge is framed and the plea of the accused is recorded. The trial in the present case before the learned Additional Sessions Judge had already commenced since the entire evidence had been recorded. Therefore, once the trial had commenced, the learned Sessions Judge was not competent and had no power to withdraw the case from the court of Additional Sessions Judge, Solan to his own Court for disposal. In arriving at the conclusion, I am supported by a ratio laid down by a learned Single Judge of this Court in State of H.P. v. Y.V. Mehra, 1998 Cri.L.J. 1488. 11. In arriving at the conclusion, I am supported by a ratio laid down by a learned Single Judge of this Court in State of H.P. v. Y.V. Mehra, 1998 Cri.L.J. 1488. 11. Since the learned Sessions Judge, Solan was not a Successor Court to the Additional Sessions Judge, Solan nor he could have withdrawn the said trial to his own files for disposal, it can be said that the learned Sessions Judge had exercised the jurisdiction in passing the impugned judgment of conviction which was hot vested in him, and as such, the impugned judgment dated 27.11.1998 cannot be sustained and is liable to be set aside. 12. Resultantly, the present appeal is allowed. The conviction and sentence imposed upon the accused by the learned Sessions Judge, Solan vide the impugned judgment dated 27.11.1998 are set aside and the case is remanded to the Additional Sessions Judge, Solan in which court the case was pending trial for disposal in accordance with law. 13. The parties through their counsel are directed to appear before the learned Additional Sessions Judge, Solan on 21.10.2002. The record be returned forthwith so as to reach the concerned Court well before the date fixed. 14. Be it stated that the accused is on bail pursuant to the order dated 24.12.1998 of this court passed in Cr.M.P. No. 404 of 1998. The bail bonds furnished by the accused in pursuance of the orders of this Court shall continue to remain in force during the pendency of the trial before the learned Additional Sessions Judge, Solan. The amount of fine in pursuance of the impugned judgement dated 27.11.1998, if already deposited, shall be refunded to the accused. Appeal allowed.