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2003 DIGILAW 839 (PNJ)

Umed Singh v. State Of Haryana

2003-05-29

NIRMAL SINGH

body2003
Judgment Nirmal Singh, J. 1. The point arises in these petitions is whether the District and Sessions Judge has the power to withdraw or recall the Sessions case after the commencement of the trial. 2. The facts are not disputed in these cases.11 Sessions trials were pending in the Court of Additional Sessions Judge, Fast Track Court, Sonepat. List of these cases is attached as Annexure P1 (Crl. Misc. No.11597-M of 2003 ). The cases mentioned at Serial Nos.1, 3 to 11 were fixed for prosecution evidence, whereas case mentioned at Serial No.2 was fixed for arguments. The learned District and Sessions Judge, Sonepat vide order dated 12.12.2002 withdrew all the cases from the Court of Mr. B. S. Rawat, Additional Sessions Judge, Fast Track Court and made over to the Court of Mrs. Anita Chaudhary, Additional Sessions Judge, Sonepat for disposal in accordance with law. 3. The Sessions Judge has been empowered under Sec.409, Cr. P. C. to withdraw the cases and appeals. Sec.409, Cr. P. C. reads as under: 409. Withdrawal of cases and appeals by Sessions Judge- (l) 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 a 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. 4. A perusal of Sub-section (2) to Sec.409, Cr. P. C. shows that 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. But when the proceedings has commenced in the trial or appeal, then Sessions Judge has no power to withdraw or recall the case or appeal. But when the proceedings has commenced in the trial or appeal, then Sessions Judge has no power to withdraw or recall the case or appeal. Similar proposition has came up before Division Bench of Karnataka High Court in Amirthappa andanotherv. State of Karnataka, and it was held by the D. B. as under: Under the powers vested in me under Sec.409,cr. P. C.1973, the Sessions Case No.21 of 1990 now pending on the file of II Additional Sessions Judge, Dharwar is hereby withdrawn from his file and taken to the file of Principal Sessions Judge, Dharwar for disposal according to law. It is plain from the order that the principal Sessions Judge while passing the order has overlooked Sec.409 (2) of the Cr,p. C. which reads as follows 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. and has made use of the provisions in Sec.409 (1) of the Cr. P. C. Sec.409 (1) of Cr. P. C. would have been applicable in case the Second Additional Sessions Judge had not commenced the trial. What the Principal Sessions Judge has done after passing the above order is to examine one more witness as PW 10 and five Court witnesses. He had no jurisdiction to withdraw the case under Sec.409 (1), Cr. P. C. in view of the case under Sec.409 (2) of the Cr. P. C. and proceed with the trial. Therefore, the trial held by the Principal Sessions Judge is not in accordance with law and as such is without jurisdiction. 5. The Division Bench of Delhi High Court in Ram Singh V/s. The State and Another, while examining the powers of the Sessions Judge to withdraw the cases under Sec.409, Cr. P. C. has observed that after commencement of the proceedings when evidence was being recorded, the withdrawal of the case is in contravention of the provisions of Sub-section (2) of Sec.409, Cr. P. C. in that case, case of petitioner Ram Singh was withdrawn along with number of other cases pending in the Court of Mr. Lokeshwar Parshad, Additional Sessions Judge, Delhi and was assigned to the Court of Mr. S. L. Bhayana, a newly appointed Additional Sessions Judge. P. C. in that case, case of petitioner Ram Singh was withdrawn along with number of other cases pending in the Court of Mr. Lokeshwar Parshad, Additional Sessions Judge, Delhi and was assigned to the Court of Mr. S. L. Bhayana, a newly appointed Additional Sessions Judge. The Division Bench held that the Sessions Judge has no power to withdraw the case after the commencement of the trial. 6. Similar view has been expressed by Karnataka High Court in case of P. Sridhar V/s. State by Cubbon Park-Police. 7. The Haryana Additional District and Sessions Judge (Ad hoc) Service Rules have been notified vide notification dated 16.10.2001. Under Rule 10 of the Rules, the District and Sessions Judge has been given powers to transfer and withdraw the cases from the Fast Track Court. When these rules have been framed, Sec.409, Cr. P. C. has not been taken into consideration as the rules do not take precedence over the provisions of Criminal Procedure Code as it has been laid down by the Apex Court in State of Punjab V/s. Raj Kumar. 8. In the instant case, cases mentioned at Serial Nos.1 and 3 to 11 were fixed for prosecution evidence and case mentioned at Serial No.2 was fixed for arguments. In all the cases the proceedings have commenced. There-fore, the order passed by the Sessions Judge is not in consonance with Sub-section (2) to Sec.409, Cr. P. C. 9. For the reasons mentioned above, this and connected petitions are accepted. Order dated 12-12-2002 passed by the Sessions Judge, Sonepat is set aside. The case will remain for adjudication before Additional Sessions Judge, Fast Track Court and the proceedings in all the cases will commence from the date those were withdrawn from the Fast Track Court. The Fast Track Court is directed to dispose of the cases in accordance with law. Petition allowed.