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2011 DIGILAW 2538 (RAJ)

Anil Mehra v. State of Rajasthan

2011-11-22

MAHESH CHANDRA SHARMA

body2011
Hon'ble SHARMA, J.—This is a criminal misc. petition under section 482 Cr.P.C against the order dated 14.10.2011 passed by learned Sessions Judge, Kota in criminal Misc. Case No. 1352/11 whereby he dismissed the application moved by the petitioners under section 409 Cr.P.C for transferring the Sessions Case NO. 145/11 pending in the Court of learned Addl. Sessions Judge No.3, Kota to the Court of learned Addl. Sessions Judge No.1 (Fast Track) Kota. 2. Brief facts of the case are that a criminal case for offence under section 302/34 IPC was registered at P.S. Nayapura, Kota. After completion the police submitted the charge-sheet against the petitioners in the court concerned, who committed the case to the Court of learned Sessions Judge, Kota. The learned Sessions Judge, Kota transferred the case to the Court of learned Addl. Sessions Judge No.1 (Fast Track) Kota for trial. During trial the charges were framed against the accused petitioners and statements of certain prosecution witnesses were also recorded. After initiation of the trial the learned Sessions Judge, Kota transferred the case from Addl. Sessions Judge No.1 (Fast Track) Kota to the Court of learned Addl. Sessions Judge No.3, Kota. 3. Against the said order of transfer from learned Addl. Sessions Judge No.1 (Fast Track) Kota to learned Addl. Sessions Judge No.3, Kota the petitioners moved an application under Section 409 Cr.P.C before learned Sessions Judge, Kota submitting that the above transfer is in contravention of legal provisions and hit by section 409(2) Cr.P.C, wherein it has been directed that no case or appeal may be transferred or withdrawn from the court of any Addl. Sessions Judge by the Sessions Judge concerned after initiation of trial but the learned Sessions Judge dismissed the said application vide order dated 14.10.2011. Hence, present criminal misc. petition before this Court. 4. Mr. Surendra Sharma, learned counsel for the petitioners submits that the impugned order has been passed by the learned Sessions Judge in contravention to the provisions of Section 409 (2) Cr.P.C because when the trial has been started and the statements of three prosecution witnesses have already been recorded, then learned Sessions Judge, Kota cannot transfer the case because the matter has already been transferred from learned Addl. Sessions Judge No.1 (Fast Track) Kota to the Court of learned Addl. Sessions Judge nO.3, Kota. 5. In support of his case, he has placed reliance upon the following Judgments: 1. Sessions Judge No.1 (Fast Track) Kota to the Court of learned Addl. Sessions Judge nO.3, Kota. 5. In support of his case, he has placed reliance upon the following Judgments: 1. Smt. Gulzar vs. Nizam and another, 1981 Cr.L.J. NOC 22(AII.); 2. Balraj Yadav and other vs. State of Bihar, 1990 Cr.L.J. NOC 90 (Patna); 3. Manoj Majumdar vs. State of West Bengal, 1984 Cr.L.J. 28; State of West Bengal vs. Gangadhar Dawan and others, 1989 Cr.L.J. 563; and 4. Amrithappa and another vs. State of Karnataka, 1982 Cr.L.J. 1336. 6. Thus, the impugned order may kindly be quashed and set aside. 7. Learned P.P. appearing for the State could not oppose the submissions regarding transfer of the case from the Court of learned Addl. Sessions Judge No.1 (Fast Track) Kota to the Court of learned Addl. Sessions Judge No.3, Kota. He submits that the learned Sessions Judge has power under section 408 Cr.P.C for transfer of the cases and appeals but once the trial has been started and statements of three prosecutions witnesses have been recorded then the provisions of Section 409 Cr.P.C are applicable. According to him, he can recall his order before framing of the charge but he cannot recall his order when charges have been framed and statements of three prosecution witnesses have been recorded. 8. The provisions of sections 408 and 409 Cr.P.C run as under: "408. Power of Sessions Judge to transfer cases and appeals. (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 may 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 subsection (1) of section 407, except that 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. 409. 409. Withdrawal of cases and appeals by Sessions Judges. (1) 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." 9. From a bare perusal of the aforesaid sections it is clear that under section 408 Cr.P.C the learned Sessions Judge has power to transfer the cases and appeals from one Criminal Court to another Criminal Court in his sessions division and it may act either on the report of the lower court, or on the application of a party interested or on his own initiative. 10. So far as section 409 (1) Cr.P.C. is concerned, the learned Sessions Judge has power of withdrawal of cases and appeals from, or recall any case. Provisions of Section 409(2) Cr.P.C. specifically deals with that the learned Sessions Judge may recall any case or appeal at any time before the trial of the case or the hearing of the appeal but when the charge has already been framed and the statements of three prosecution witnesses have been recorded then there is no question of transferring of the case from the court of learned Addl. Sessions Judge No.1 (Fast Track) Kota to the Court of learned Addl. Sessions Judge No.3, Kota and passing the order dated 14.10.2011. Though the learned Sessions Judge in its order has observed that the transfers of the cases are being made so as to distribute the work in proportionate way but this observation of the learned Sessions Judge, Kota is in contravention to the provisions of section 409 (2) Cr.P.C. because here in the instant case the charges have already been framed and statements of three prosecution witnesses have been recorded. Thus, in my considered view, the learned Sessions Judge has committed an illegality in passing the order dated 14.10.2011 which needs to be quashed by this Court. 11. In the result, this criminal misc. petition is allowed and the order dated 14.10.2011 passed by learned Sessions Judge, Kota in criminal Misc. Case No. 1352/11 whereby he dismissed the application moved by the petitioners under section 409 Cr.P.C. for transferring the Sessions Case No. 145/11 pending in the Court of learned Addl. Sessions Judge No.3, Kota to the Court of learned Addl. Sessions Judge No.1 (Fast Track) Kota is quashed and set aside and I direct the learned Addl. Sessions Judge No.1 (Fast Track), Kota to conclude the trial as early as possible.