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2002 DIGILAW 79 (GAU)

Subrata Pal v. Ratna Gope

2002-02-13

B.B.DEB

body2002
B.B. DEB, J. — This petition is registered as Criminal Transfer Petition on the basis of a petition filed by Mr Subrata Pal, learned Additional Session Judge, West Tripura, Khowai requesting the High Court for withdrawal of Session Triable Case bearing No. S.T. 134(WT/K)/2000 under Sections 341/3027 34 I.P.C. from the file of the learned Additional Sessions Judge, West Tripura, Khowai and to transfer the same to any other competent Court of jurisdiction on the following grounds:- (a) The accused persons are attempting to drag the case by this or that plea; (b) The Additional Public Prosecutor appears to be unwilling to conduct the case and for which he wrote a letter to the Secretary (Law) for appointing any other lawyer as Spl. Public Prosecutor. The Additional Public Prosecutor appears to be pressurised from other corner to withdraw himself from the case; Neither the prosecution nor the defence nor even the aggrieved victim sought for any such transfer of the case. 2. A question has been raised from the / Bar as to whether the learned Additional Sessions Judge could file the petition direct to the high Court seeking withdrawal of the case from his file having by-passed the learned Sessions Judge of the session division. To resolve this question, it is pertinent to decide whether a learned Additional Sessions Judge holds a Court separate from and independent of the Court of learned Sessions Judge? In this respect, provision of Section 9 of the Criminal Procedure Code is to be examined. The related parts of Section 9 of the Cr.P.C. are quoted below:- "9. Court of Session. - (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, (underline emphasised) *** *** *** *** *** *** *** *** From the aforequoted statutory provisions, it remains settled that in a 'sessions division' there shall be one Court of Session. For the aforesaid reason, the Parliament deliberately put the Article "a" before "Court of Session" in Section 9(1) of the CrPC. For the aforesaid reason, the Parliament deliberately put the Article "a" before "Court of Session" in Section 9(1) of the CrPC. As such in my considered opinion, there cannot be more than one "Court of Session" in a "sessions division" in its statutory meaning and that "Court of Session" shall be presided over by a Judge called "the Sessions Judge" to be appointed by the High Court and there may be one or more Additional Sessions Judge and Assistant Sessions Judge to exercise jurisdiction in a Court of Session meaning thereby a "Court of Session" can be presided over by a Sessions Judge or by an Additional Sessions Judge or an Assistant Sessions Judge as the case may be. Sitting arrangement and venue of the Court may be separately situated but that is an integral part of the sessions division. The Additional Sessions Judge or Assistant Sessions Judge as the case may be are holding the Courts of Sessions Judge in a sessions division and not of any independent Court of Additional Sessions Judge or Assistant Sessions Judge. That could be termed as a "Separate bench" of a sessions division. In a particular station there may be one Sessions Judge with one or more Additional Sessions Judge and one or more Assistant Sessions Judge. The Additional Sessions Judge or the Assistant Sessions Judge as the case may be, are holding separate bench of the same Court of Session in a sessions division, of course, for administrative convenience identification of such Courts as Court of Additional Sessions Judge and Court of Assistant Sessions Judge may be permissible, but not within statutory meaning under Section 9 of the CrPC. 3. That being the legal position, as has been pointed out, no Additional Sessions Judge or as the case may be Assistant Sessions Judge could make direct correspondence with the High Court in respect of their judicial functions unless otherwise called for. If any difficulty is faced by the Additional Sessions Judge or as the case may be by the Assistant Sessions Judge, that should be brought to the notice of the High Court through the Sessions Judge concerned who in turn would transmit the same to the High Court with his own comments, but unfortunately in the present case, the learned Additional Sessions Judge made direct correspondence to the High Court regarding the transfer of a criminal case. 4. 4. Mr D. Sarkar, learned Public Prosecutor submits that in a given case when the learned Additional Sessions Judge already commenced the trial and recorded some evidence, the learned Sessions Judge becomes incompetent to recall or withdraw such case in exercise of power under Section 409(2) of the CrPC. 5. The jurisdictions of the learned Sessions Judge to withdraw or recall a case from the file of other Court and to transfer the same to any other competent Court are regulated by/under Sections 408 and 409 of the CrPC. Section 408(1) CrPC empowers the learned Sessions Judge to transfer a case from one criminal Court to another criminal Court in its sessions division when it is expedient for the ends of justice and that power could be exercised by the learned Sessions Judge either on the report of the learned lower Court or on application of the interested party or on its own initiative. Under Section 409(1) of the CrPC, the learned Sessions Judge is vested with the power to withdraw any case or appeal from any Assistant Sessions Judge or Chief Judicial Magistrate subordinate to him or may recall any case which he has made over to the Assistant Sessions Judge or Chief Judicial Magistrate and under sub-section (2) of Section 409 CrPC, the Sessions Judge is equally empowered to recall a case or, as the case may be, an appeal from the Additional Sessions Judge which he has made over, but that must be done before the commencement of the trial or as the .case may before hearing of the appeal. 6. It reveals from^he scheme of the provisions of Sections 408 and 409 Cr.P.C. that the learned Sessions Judge can transfer any criminal case from one criminal Court to another criminal Court either at his own initiative or at the instance of the party aggrieved or on the report of the learned lower Court and that must be done if it appears to be expedient for the ends of justice. Since the Parliament deliberately used the term 'transfer' of a case from one criminal Court to another criminal Court in sessions division under Section 408(1) of the CrPC, it must be construed that "recalling" or "withdrawing" any case from the file of learned Chief Judicial Magistrate and a case or appeal from the file of learned Additional Sessions Judge or Assistant Sessions Judge have been deliberately excluded from the purview of the provision under Section 408 CrPC. Regarding "withdrawal" or "recalling" of any case which has been made over to any Assistant Sessions Judge or withdrawal or recalling any case from the file of Chief Judicial Magistrate, the learned Sessions Judge is to exercise power under Section 409(1) CrPC and that can be done at any time either due to administrative exigencies or when it appears to be expedient for the ends of justice, but "recalling" a case or an appeal which has been made over to the file of learned Additional Sessions Judge can be done by the learned Sessions Judge at any time before trial or as the case may be before hearing of the appeal commences and not thereafter. The Parliament has deliberately avoided the word "withdrawal" so far it relates to a case under trial or an appeal in the file of learned Additional Sessions Judge, instead the power has been bestowed upon the learned Sessions Judge to "recall" the case or appeal which he has made over to any Additional Sessions Judge. 7. From the aforesaid analytical discussions of statutory provisions, I am of the considered opinion that the learned Sessions Judge has been vested with unconditional power to withdraw or transfer any criminal case from any criminal Court in his sessions division which are not covered by Section 409 CrPC and transfer the same to other criminal Court of competent jurisdiction under him in view of Section 408 CrPC. Similarly, the learned Sessions Judge in a sessions division has been vested with the power to withdraw or recall the cases he made over to the Assistant Sessions Judge or any case from the file of Chief Judicial Magistrate subordinate to him at any stage of the inquiry or trial or appeal, but recalling a case (not withdrawing) which he has made over to the learned Additional Sessions Judge, power is to be exercised, if so required, before the commencement of trial of a case or as the case may be before hearing of an appeal. In case, in the opinion of the learned Sessions Judge any case requires to be recalled from the file of the learned Additional Sessions Judge even after the commencement of the trial or hearing, he must report to the High Court with his own reasonings justifying such recalling of the case as permissible under sub-section (2) of Section 407 CrPC. 8. Revert back to the case in hand, I find no reason to withdraw the case from the file of the learned Additional Sessions Judge, West Tripura at Khowai. Since the learned Additional Public Prosecutor declined to conduct the case and already moved the State Government for appointment of Special Public Prosecutor, it is the State Government to appoint any competent Public Prosecutor to conduct the case at Khowai. 9. With these observations and directions, the petition is disposed of. Send a copy of this order to the State Government for appointing a competent Public Prosecutor specially to conduct the present case.