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2010 DIGILAW 331 (JHR)

Jai Narayan Rai v. State of Jharkhand

2010-03-15

R.R.PRASAD

body2010
JUDGMENT : R.R. PRASAD, J. 1. A complaint was lodged on 20.10.2000 by the complainant against the petitioner which was sent to the police station for registration and, accordingly, Rajmahal P.S. case No. 183 of 2000 was registered under Sections 493, 376, 120B of the Indian Penal Code. On completion of investigation, the charge sheet was submitted, upon which cognizance of the offence was taken and the case was committed to the court of sessions. On its committal, case was registered as S.C. No. 42 of 2002 and the learned Sessions Judges transferred the case to the court of Additional Sessions Judge, F.T.C, Rajmahal where, according to the case of the petitioner, evidences were recorded and upon the closure of the case of the prosecution, statement of the accused was also recorded and the court even heard argument advanced on behalf of the defence on 10.12.2008 and the next date was fixed on 19.12.2008, on which date, the petitioner came to know that the case has been recalled by the learned Sessions Judge, Sahebganj to his own file. Subsequently on 27.1.2009, when the petitioner appeared there, submission was made to fix the case at Camp Court, Rajmahal. However on 8.7.2009, the case was transferred to the Additional Sessions Judge 1st, Rajmahal for disposal. 2. Thereafter a Misc. Petition being Cr. Misc. (Transfer) Petition No. 18 of 2009 was preferred before the learned Sessions Judge wherein prayer was made to recall the case from the file of Additional Sessions judge 1st, Rajmahal and to transfer it to the court of Additional Sessions Judge-cum-FTC, Rajmahal for its disposal but that application was dismissed on 21.11.2009 (Annexure 3). 3. Being aggrieved with that order, this application has been filed. 4. The impugned order was sought to be quashed on the ground that the Sessions Judge had no jurisdiction to withdraw/recall the case from the court of Additional Sessions Judge-cum-FTC as the FTC had not only recorded the evidence but had also heard the argument in part and in such situation, bar has been put u/s 409(2) of the Code of Criminal Procedure for recalling the case from the court where hearing of the case has commenced. 5. Learned Counsel in support of his submission has referred to a decision rendered in the case of State of West Bengal Vs. 5. Learned Counsel in support of his submission has referred to a decision rendered in the case of State of West Bengal Vs. Gangadhar Dawn and Others, (1989) CriLJ 563 and in the case of Amrithappa and Another Vs. State of Karnataka, (1982) CriLJ 1336. 6. Having heard learned Counsel appearing for the parties and on perusal of the record, it does appear that on committal of the case learned Sessions Judge earlier transferred the case to the court of Additional Sessions Judge-cum-FTC, Rajmahal where, according to the petitioner, evidences were recorded and even the case was heard in part. At that stage, the case was recalled by the learned Sessions Judge to his own file before 19.12.2008 but that order was never challenged, rather request was made on behalf of the defence before the leaned Sessions Judge to fix the case at Camp Court at Rajmahal which prayer was allowed. When the case was transferred to the 1st Additional Sessions Judge, Rajmahal for disposal, the same was challenged by filing Misc. Petition which was rejected on the ground that earlier when the case had been withdrawn from the file of Additional Sessions Judge-cum-FTC, that was not challenged and that the case had been recalled from the file of Additional Sessions Judge-cum-FTC in exercise of power u/s 408 of the Code of Criminal Procedure and as such, bar as contemplated u/s 409(2) of the Code of Criminal Procedure would not be applicable. 7. It would be significant to note here that it has never been disputed that earlier the case has been recalled from the file of F.T.C in exercise of power u/s 408 of the Code of Criminal Procedure. 8. In the circumstances, the cases relied upon on behalf of the petitioner is not applicable. Thus, I do not find any illegality in the order under which the case was transferred to the court of 1st Additional Sessions Judge. 9. On the other ground also the impugned order never warrants to be interfered with in view of the provision as contained in Section 465 of the Code of Criminal Procedure which does stipulate that no finding, sentence or order passed by a competent court should be reversed or altered in appeal or revision on account of any order, omission or irregularity in the proceeding unless it has occasioned a failure of justice. Of course, it has been pleaded that once the Additional Sessions Judge-cum-FTC recorded the evidence, it is desirable that the case be disposed of by him presumably, for the reason that the leaned Judge would have been in position to appreciate the evidence in better manner as he had occasioned to note the demeanor of the witnesses but the fact is that when the case was withdrawn from the file of Additional Sessions Judge-cum-FTC by the learned Sessions Judge and kept it in his own file, that order was never challenged and after a lapse of more than six months, the objection was raised when the case was transferred by learned Sessions Judge to the court of 1st Additional Sessions Judge, Rajmahal and due to the passage of time, one is not expected to remember the demeanor of the witnesses, if it has not been recorded in course of recording evidence and if the demeanor of the witnesses have been recorded, the other court may take notice of it. Thus, the petitioner can not be said to have suffered prejudice. 10. Thus, I do find that the order of transfer has never occasioned a failure of justice. Accordingly, I do not find any merit in this application. Hence, it is dismissed.