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2008 DIGILAW 375 (ALL)

BADRI BISHAL TRIPATHI v. STATE O

2008-02-19

AMAR SARAN

body2008
AMAR SARAN, J. Heard learned Counsel for the applicant and Sri Shashi Dhar Tripathi, learned Additional Government Advocate. 2. An order dated 3. 1. 2008 passed by the Additional Sessions. Judge/f. T. C. in S. T. No. 123/02 has been challenged by means of this application. 3. By the said order, the learned Judge has transferred the case (relating to Case Crime No. 18 of 2002 under sections 302/307/304/506 IPC and section 3 (5) of S. C. /s. T. Act, P. S. Raipura, district Chitrakoot (with which the applicant is principally concerned) and certain other cases for other offences to the Special Judge, Gangsters Act, Jhansi, where the charge-sheet has been submitted, in case crime No. 35/02 under sections 2/3 of the Gangsters Act, P. S. Raipura, against the accused Kamlesh alias Raju Lala, Prakash Misra and Shiv Vilas. Ostensibly this has been effected in furtherance of a decision of this Court in the case of Subhash v. State of U. P. , 1988 JIC 405 (Alld. ). where it has been observed that the F. I. Rs. mentioned in the Gangsters Act offence which were pending on the said date should be tried by the Special Court to avoid multiplicity of proceedings and sentences. 4. However, learned Counsel for the applicant contends that so far as the applicant is concerned, he was not at all wanted in the case under the Gangsters Act (hereinafter referred to as the Act) and his trial in his case, which was near conclusion ought to have been disposed of before the Court where it was pending at present i. e. in Chitrakoot. 5. Furthermore, it was argued that only the High Court has power under section 407 of Code of Criminal Procedure to transfer a case out of the district and under section 408 of the Code of Criminal Procedure, no such powers are conferred on a Court of Sessions. 6. 5. Furthermore, it was argued that only the High Court has power under section 407 of Code of Criminal Procedure to transfer a case out of the district and under section 408 of the Code of Criminal Procedure, no such powers are conferred on a Court of Sessions. 6. It may be noted that under section 8 of the Gangsters Act, it is specifically provided that the Special Court trying any offence punishable under the Act may also try any other offence with which the accused may, under any other law for the time being in force, be charged at the same trial and also if during the course of the trial it is found that the accused has committed any other offence under this Act or any rule there under or under any other law, the Special Court may convict such person of such other offence and pass any sentence authorised by the Act or such rule that may exist or under such other law, for the periods prescribed for the punishment. Section 8 reads as follows:- " 8. Power of Special Courts with respect to order offences.- (1) When trying any offence punishable under this Act a Special Court may also try any other offence with which the accused may, under any other law for the time being in force, be charged at the same trial. (2) If in the course of any trial under this Act of any offence, it is found that that accused has committed any other offence under this Act or any rule there under or under any other law, the Special Court may convict such person of such other offence and pass any sentence authorised by this Act or such rule or, as the case may be, such other law, for the punishment thereof. " Furthermore, section 7 provides that where a Special Court has been constituted for any local area, every offence punishable under any provision of the Act shall be tried by the Special Court within whose local jurisdiction it was committed whether before or after the constitution of such Special Court. 7. " Furthermore, section 7 provides that where a Special Court has been constituted for any local area, every offence punishable under any provision of the Act shall be tried by the Special Court within whose local jurisdiction it was committed whether before or after the constitution of such Special Court. 7. Section 7 also provides that if it appears to any Court in the course of any enquiry or trial that the accused is one who should be tried by a Special Court constituted under this Act for the area where such case has arisen, it shall transfer such case to the Special Court, and the case shall then be disposed of by the Special Court in accordance with the provisions of the Act. Also it shall be lawful for a Special Court to act on the evidence, if any, recorded by the predecessor Court. It will also be open to the Special Court, if it feels that further examination of any witness whose evidence has already been recorded is necessary to re-summon the witness for further examination, cross-examination or re-examination. 8. Sections 7 (1) (2) and (3), in so far as they are material are being quoted here as under:- 1. Jurisdiction of Special Courts.- (1) Notwithstanding anything contained in the Code, where a Special Court has been constituted for any local area, every offence punishable under any provision of this Act or any rule made there under shall be triable only by the Special Court within whose local jurisdiction it was committed whether before or after the constitution of such Special Court. (2) All cases triable by a Special Court, which immediately before the constitution of such Special Court were pending before any Court, shall on creation of_ such Special Court having jurisdiction over such cases, stand transferred to it. (2) All cases triable by a Special Court, which immediately before the constitution of such Special Court were pending before any Court, shall on creation of_ such Special Court having jurisdiction over such cases, stand transferred to it. (3) Where it appears to any Court in the course of any inquiry or trial in respect of any offence that the case is one which should be tried by a Special Court constituted under this Act for the area in which such case has arisen, it shall transfer such case to such Special Court, and thereupon such case shall be tried and disposed of by the Special Court in accordance with the provisions of this Act: Provided that it shall be lawful for the Special Court to act on the evidence, if any, recorded by the Court in the case in the presence of the accused before the transfer of the case under this section: Provided further that if the Special Court is of opinion that further examination of any of the witnesses whose evidence is already recorded in the case is necessary in the interest of justice, it may re summon any such witness and after such further examination, cross-examination and re-examination, if any, as it may permit, the witness shall be discharged. 9. In this view of the matter, I am of the opinion that the learned Judge has transferred the case to the Special Court at Jhansi in exercise of the special provisions under the Act and the transfer has not at all been effected in exercise of powers under section 408 Cr. P. C. 10. Also, it is desirable that the entire trial in case crime No. 18 of 2002 under sections 302,307, 504, 506 IPC and section 3 (2) 5 of the S. C. /s. T. Act, in which the applicant is an accused be tried in the same Court, where the other accused are being tried for avoiding any conflict of findings and it is not very material whether the applicant has been arrayed as an accused under the Gangsters Act or not. 11. 11. So far as the contention of the applicants Counsel that a substantial part of the evidence has been recorded before the present Court at Chitrakoot, there is not much substance in this argument because under the proviso to section 7 (3) it has been held lawful for the Special Court even to act on the evidence, if any, recorded by the predecessor Court in the presence of the accused before the transfer of the case was effected. The further prayer of the applicant to conclude the trial expeditiously is, however, allowed and the Special Court, Jhansi to whom the said case has been transferred should try and conclude the trial as early as possible after filing of the certified copy of this judgment before it. Office is also directed to forward the certified copy of the judgement to the Special Court, Jhansi within a week. Application is disposed of with the aforesaid observations. Application Disposed Of. .