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2007 DIGILAW 1569 (PAT)

Mukesh Kumar Mahto v. State Of Bihar

2007-09-24

NAVIN SINHA

body2007
Judgment 1. Heard learned counsel for the petitioner, State and Opposite party nos. 2 & 3. 2. The challenge in this application is to the transfer of Sessions Trial No. 359 & 359A of 1991 from the court of the Additional Sessions Judge. Fast Track Court No. IV, Lakhisarai to the court of Additional Sessions Judge, Fast Track Court No. I, Lakhisarai. 3. It is not in controversy that the trial had commenced in the court of Additional Sessions Judge, Fast Track Court No. IV by examination of witnesses when the Opposite parties moved an application that they had filed a petition for transfer before the Bench Clerk of the District & Sessions Judge, Munger on 23.11.2006. On 30.11.2006 the Opposite parties filed an application that the District & Sessions Judge had been pleased to order for transfer of the case from the court of Additional Sessions Judge, Fast Track Court No. IV to the court of Additional Sessions Judge, Fast Track Court No. V. The present impugned order for transfer was then passed on 5.12.2006. 4. Section 409(2) Cr.P.C. prohibits the transfer of a case from the court of Additional Sessions Judge after the trial of the case commenced. Recording of evidence having commenced, the trial was already in progress. Had the transfer been a routine administrative transfer the matter may have been different to be considered in its own perspective. In the facts and circumstances of this case, it is apparent that the transfer was not a routine one in normal course but that it was propelled by certain steps taken by the Opposite parties. The counter affidavit on their behalf does not dispute or deny the assertion of fact in that context made against them. This has created apprehension in the mind of the petitioner. 5. It is trite law that justice must not only be done but must appear to be done. Learned counsel for the petitioner rightly relies upon a Bench decision of the Madhya Pradesh High Court in the case of Krishna Dutt Sharma Vs. State of Rajasthan, reported in 1998 Cr. Law Journal 3512 to submit that the trial having commenced such transfer was not permissible under the Code. A Bench of this Court in the case of Rajakali Devi Vs. State of Bihar & ors., reported in 2002(3) PLJR 642 has held likewise. 6. State of Rajasthan, reported in 1998 Cr. Law Journal 3512 to submit that the trial having commenced such transfer was not permissible under the Code. A Bench of this Court in the case of Rajakali Devi Vs. State of Bihar & ors., reported in 2002(3) PLJR 642 has held likewise. 6. In the facts and circumstances of the present case, the facts urged on behalf of the petitioner not controverted by the private opposite parties, this Court is satisfied that the impugned transfer was in the guise of an administrative order. This Court, therefore finds it difficult to uphold the transfer of the present Sessions cases on its own facts from the court of Additional Sessions Judge, Fast Track Court No. IV, Lakhisarai to the court of Additional Sessions Judge, Fast Track Court No. I. Lakhisarai by order no. 200 (Misc.) dated 5.12.2006. 7. The application is allowed and the Sessions Trial no. 359 & 359A of 1991 are directed to be sent back to the Court of Additional Sessions Judge, Fast Track Court No. IV, Lakhisarai for final disposal.