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2010 DIGILAW 378 (MP)

Suleman Khan v. State of M. P.

2010-03-31

INDRANI DATTA

body2010
JUDGMENT 1. With the consent of the parties, the matter is heard finally at motion stage. 2. Invoking extraordinary jurisdiction of this Court, this petition has been preferred under section 482 of CrPC for setting side the order dated 8.2.2010 passed by third ASJ, Shivpuri allowing prosecution's application filed under - Section 311 CrPC for recalling witness Ajeet Singh and also for setting aside the order dated 27.1.2010 passed by Sessions Judge, Shivpuri concerning transfer of Sessions trial No. 215 of 2006 from his Court to the Court of Third ASJ, Shivpuri. 3. The facts of the case in nut-shell giving rise to this petition are that the petitioners are facing Sessions Trial No. 215 of 2006 in the Court of Sessions Judge, Shivpuri for offence under sections 307, 323, 147. 148 and 149 IPC and a cross case is also pending against complainant party in that Court. Evidence of prosecution witnesses was recorded in the Court of Sessions judge, Shivpuri. Petitioners-accused were examined under section 313 CrPC in that Court and after examination of defence witnesses, the case was fixed for arguments on 27.1.2010. On that day, learned Sessions judge, transferred the case without any reason to the Court of Third ASJ, Shivpuri. Third ASJ, Shivpuri allowed the application filed by prosecution under section 311 CrPC for recalling witness Ajeet Singh, hence, this revision for setting-aside impugned orders. 4. It is contended on behalf of the petitioners that so far as order dated x.2.2010 passed by Third ASJ, Shivpuri allowing prosecution's application for recalling witness Ajeet Singh is concerned, that witness has already been recalled and cross-examined, therefore, he does not want to press his prayer for setting aside the order datcd 8.2.2010 passed by Third ASJ, Shivpuri. He is only confining his argument concerning order of transfer of the case passed by learned Sessions Judge, Shivpuri from his Court to the Court of Third ASJ, Shivpuri. 5. Learned counsel for the petitioners submitted that the order passed by' learned Sessions Judge is perverse and illegal as, when total trial of the case was conducted in Sessions Court and matter was fixed for arguments, it was not proper and reasonable to transfer the case without any ground under sections 408 and 409 CrPC. 6. 5. Learned counsel for the petitioners submitted that the order passed by' learned Sessions Judge is perverse and illegal as, when total trial of the case was conducted in Sessions Court and matter was fixed for arguments, it was not proper and reasonable to transfer the case without any ground under sections 408 and 409 CrPC. 6. Learned counsel for the complainant on the other hand has opposed the petition and submitted that the order of transfer of a case is purely an administrative order, so it is legal. It is further admitted by him that he has no objection if the case is heard by Sessions Judge. 7. Heard rival contentions of learned counsel for the parties and perused the documents on record. 8. In the present case, before going into the merits of the case, perusal of section 408 CrPC would be relevant, which reads as follows: "408. Power of Sessions Judge to transfer cases and appeal - (1) Whenever it is made to appear to a Sessions Judge that an order under this sub-section is expedient for the ends of justice, he may order that any particular case be transferred from one Criminal Court to another Criminal Court in his sessions division. (2). the Sessions Judge any act either on the report of the lower Court, or on the application of a party interested or on his own initiative. (3) the provisions of sub-sections (3), (4), (5), (6), (7) and (9) of section 407 shall apply in relation to an application to the Sessions Judge for an order under sub-section (1) as they apply in relation to an application to the High Court for an order under sub-section (7) of that section shall so apply as if for the words "one thousand rupees" occurring therein, the words "two hundred and fifty rupees" were substituted." 9. In case of Avinash Singh v. State of Chhattisgarh 2006 CriLJ 4152 it is held that powers under sections 408 and 409 of the Code are independent. Section 408 deals with the power of-Sessions Judge to transfer the case and appeals, whenever it is made to appear that an order under sub-section (1) is expedient for the ends of justice. It has further been provided that the Sessions Judge may act either on the report of the lower Court or on the application of' a party interested or on his own initiative. It has further been provided that the Sessions Judge may act either on the report of the lower Court or on the application of' a party interested or on his own initiative. Section 409 provides for withdrawal of cases and appeals by the Sessions Judge which he has made over to any Assistant Sessions Judge or the CJM subordinate to him. Sub-section (2) of section 409 indicates that the Sessions Judge would exercise this power at any time before the trial of the case or hearing of the appeal has commenced before the Additional Sessions Judge. Sub-section (3) provides that after calling of the case back, the Sessions Judge 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. A perusal of both these sections would show that the power exercisable under section 408 is a judicial power whereas the power exercisable under section 409 is an administrative power and for exercising a power under section 408, there is no such embargo on the Sessions Judge to see as to whether the trial of the case or the hearing of an appeal, as the case may be, has commenced or not". In this case, provision of section 408 CrPC are applicable. So it is fundamental importance that the case is only to be transferred when it is expedient for the ends of justice. 10. In case of Ajeem v. State of U.P. and another, 2006 Cri.LJ 2956 major part of evidence was recorded by special judge and thereafter, he was posted as Third Additional Sessions Judge in the same District, then the case was transferred to his Court considering the ground that the major part of evidence was recorded before him. 11. In the light of above legal position, it is specific that in the present case, the trial is on the verge of conclusion and was fixed for final 'arguments and then at that stage, case was transferred to the Court to Third ASJ, Shivpuri and nothing is apparent from the record that the case was transferred because, it was expedient for the ends of justice. Hence, the impugned order passed by learned Sessions Judge Shivpuri is not sustainable in the eyes of law. Hence, the impugned order passed by learned Sessions Judge Shivpuri is not sustainable in the eyes of law. Hence, the order dated 27.1.2010 passed Sessions Judge, Shivpuri is set a side. Case is sent back to the Court of Sessions Judge, Shivpuri for further proceedings.