Research › Search › Judgment

Allahabad High Court · body

2015 DIGILAW 388 (ALL)

Gaurav Shukla v. State of U. P

2015-02-25

ATTAU RAHMAN MASOODI, DINESH MAHESHWARI

body2015
JUDGMENT Dinesh Maheshwari, J. Heard learned counsel for the parties and perused the material placed on record. 2. The petitioner who is appellant in an appeal preferred under Section 52 of the Juvenile Justice (Care and Protection of Children) Act, 2000, has preferred this writ petition while seeking to question the order dated 02.01.2015, as passed by the Sessions Judge, Lucknow transferring the said appeal from the Court of First Additional District and Sessions Judge, Lucknow to Fast Track (Special Court), Lucknow. 3. Looking to the subject of this writ petition, we need not dilate on all the factual aspects of the case. Suffice it to notice for the present purpose that the said appeal of the petitioner relates to Crime No. 80 of 2005 pertaining to offences under Sections 365/376 IPC, Police Station-Ashiyana, District-Lucknow. It appears that the complainant of the said case, who is arrayed as respondent No. 3 herein, had earlier approached this Court by way of a petition U/s 482 Cr.P.C. bearing No. 5507 of 2014, wherein, a prayer was made before this Court for direction to the First Additional District and Sessions Judge, Lucknow to decide the appeal within the stipulated period. Thereupon, a learned Single Judge of this Court, in the order dated 11.12.2014, directed expeditious disposal of the appeal, preferably within a maximum period of three months, in case there was no legal hurdle thereto. 4. It appears from the material placed on record that even before passing the aforesaid order dated 11.12.2014 by this Court, the matter in appeal had been taken up by the appellate Court; and it was mentioned in the orders-sheets of 03.07.2014 and 07.07.2014 that the matter in appeal was heard and the parties prayed for yet further time and hence, the matter was adjourned. Thereafter, as per the order-sheet placed on record, the matter was further adjourned on 11.07.2014 at the request of the counsel for the petitioner. Then, the matter was further adjourned on 07.11.2014 with the noting that the oral arguments were heard and the case be posted on 14.11.2014 for remaining arguments. 5. Thereafter, as per the order-sheet placed on record, the matter was further adjourned on 11.07.2014 at the request of the counsel for the petitioner. Then, the matter was further adjourned on 07.11.2014 with the noting that the oral arguments were heard and the case be posted on 14.11.2014 for remaining arguments. 5. It appears, however, from the pleadings taken and the material placed on record that on 02.01.2015, the learned Sessions Judge, Lucknow proceeded to transfer the aforesaid appeal bearing No. 104 of 2014 along with some other cases from the Court of First Additional District and Sessions Judge, Lucknow to F.T.C. (Special Court), Lucknow. Then, a request for adjournment was made before the transferee Court on behalf of the present petitioner on 02.02.2015 with the submissions that in the appeal, arguments had been heard by the Court of First Additional District and Sessions Judge, Lucknow and yet the learned District and Sessions Judge has transferred the matter without any reason and such a transfer order was unsustainable. 6. The learned transferee Court, in its order dated 02.02.2015, declined such a prayer for adjournment and directed the petitioner to proceed with the matter while also indicating that the proper assistance was not forthcoming for compliance of the order passed by the High Court. As noticed hereinbefore, as per observations made by this Court in the order dated 11.12.2014, the appeal is expected to be decided expeditiously, preferably within a period of three months from 11.12.2014. 7. Now, the petitioner has approached this Court with the submissions that as per the knowledge gathered by him, by a notification dated 01.09.2014, the State Government has created Fast Track Courts for disposal the cases of offences against women. A cursory suggestions has been in the writ petition that the notification dated 01.09.2014 is unguided, uncontrolled, uncanalized and without jurisdiction. It is also the ground of the petitioner in the writ petition that when the arguments had almost been completed before the Court of First Additional District and Sessions Judge, Lucknow, it was impermissible for the District and Sessions Judge, Lucknow to recall the appeal from that Court and to transfer the same to any other Court. 8. Learned counsel Mr. 8. Learned counsel Mr. L.P. Mishra appearing for the petitioner, in the first place, attempted to make submission as regards the validity the notification dated 01.09.2014 but we had to express our reservations in dealing with any such argument after noticing that no specific ground has been spelt out in the writ petition in that regard except a cursory suggestion, as noticed hereinbefore. Realizing this, the learned counsel for the petitioner has not pressed such an argument and submitted that such a ground may be left open to be examined and considered in an appropriate case. 9. Having regard to the circumstances and taking note of the submission so made, we leave the matter as regard validity of the notification dated 01.09.2014 at that only. 10. The learned counsel for the petitioner has, however, referred to provision contained in Section 408 , 409 and 412 of the Code of Criminal Procedure and has particularly referred sub section (2) of Section 409 to contend that in the present matter, for the hearing having commenced, there was no jurisdiction with the Sessions Judge to recall the case and to make it over to any other Court. The learned counsel has further submitted that the order passed by Sessions Judge remains unjustified and unsustainable for being not in conformity with the requirement of Section 412 Cr.P.C. inasmuch as the Sessions Judge has failed to record any reason for making it. The learned counsel also submitted in the alternative that even if it be assumed for the sake of argument that the hearing was yet to commence, the requirement of Section 412 of Cr.P.C. having not been met, the order in question cannot be sustained. 11. We have given thoughtful consideration to the submission made, and have examined the record with reference to the law applicable. 12. The relevant background aspects of this particular case have been indicated hereinbefore. We may, however, before proceeding further, take note of the position of the notification dated 01.09.2014 (Annexure No. 7) that has been issued by the State Government in consultation with the High Court for the specific purpose of setting up of the Special Courts for dealing with the cases pertaining to the offences against women. We may, however, before proceeding further, take note of the position of the notification dated 01.09.2014 (Annexure No. 7) that has been issued by the State Government in consultation with the High Court for the specific purpose of setting up of the Special Courts for dealing with the cases pertaining to the offences against women. It is with this objective of social justice, of fast tracking and expeditious dealing of the maters pertaining to the offences against the women, that as many as eighty courts of the Additional District and Sessions Judge with support staff have been created with the requirement that in every district, one such Fast Track Court shall be established. From the submission as made in this matter, it remains hardly of any doubt that one such Fast Track Special Court has been created and has been made functional in the district of Lucknow. Once such a Court is created with a specific purpose, being that of expeditious proceedings in the matters pertaining to the offences against the women, we are clearly of the view that the Courts so created shall have jurisdiction to deal with the specified category of cases; and for achieving of the objective, it would be necessary to transfer such cases which could be of the jurisdiction a such Special Court. With these comments, we may take note of relevant provisions of Sections 408, 409 and 412 of Cr.P.C., which read 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. (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 sub-section (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. 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, as 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 subsection (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. 412. Reasons to be recorded. A Sessions Judge or Magistrate making an order under section 408, section 409, section 410 or section 411 shall record his reasons for making it. 13. It is at once clear from the scheme of Chapter XXXI of the Code of Criminal Procedure that power of transfer of cases and appeals are available with the Hon'ble Supreme Court (Section 406 Cr.P.C.) with the High Court (Section 407 Cr.P.C.) and with Sessions Judge (section 408 Cr.P.C.). With these general powers, the Sessions Judge, has been given specific power of withdrawal of cases, which he has made over to any particular Court, to recall the same and to try the case himself or to hear the appeal; or to make it over to any other Court for trial or hearing, as the case may be. With these general powers, the Sessions Judge, has been given specific power of withdrawal of cases, which he has made over to any particular Court, to recall the same and to try the case himself or to hear the appeal; or to make it over to any other Court for trial or hearing, as the case may be. The general power of Sessions Judge to transfer the trial cases or appeals, under Section 408 Cr.P.C., are nevertheless available with him irrespective of the power of withdrawal of cases under Section 409 Cr.P.C.; and it cannot be said that a particular case cannot be transferred by a Sessions Judge if such a transfer is expedient for ends of justice or if it is otherwise necessary. The powers of the Sessions Judge, as available under Section 408 Cr.P.C., cannot be read as curtailed down by Section 409 Cr.P.C. In any case, we are clearly of the view that the general power of the Sessions Judge to transfer the cases and the appeals to the extent it could done by him on his own initiative cannot be read as curtailed by Section 409 Cr.P.C. 14. Moreover, when specifically the Fast Track Court has been created for the purpose of dealing with the particular class of matters, such creation of Court cannot be said to be only for the purpose of dealing with the cases coming up after the date of notification; rather for the very objective being of expeditious dealing with the cases pertaining to the offence against women, it appears imperative that the pending cases are transferred to such a Court. 15. In our view, the transfer which has been ordered because of the notification and creation of new Court is rather a necessary consequence of such creation of the Court; and it cannot be said that the Sessions Judge was precluded from doing so. 16. It is of course true that in such exercise of power, whether under Section 408 Cr.P.C. or under Section 409 Cr.P.C., the Sessions Judge is required to record his reason for making such an order as per Section 412 Cr.P.C. The material that has been placed before us in this case in the form of Annexure No. 1 is only a list of cases and the endorsement of transfer by the Sessions Judge. The original of this documents has not been placed before us and only typed copy has been filed. Be that as it may, going by what has been placed on record before us and submitted on behalf of the petitioner, it is but clear that this transfer has been ordered by the learned Sessions Judge pursuant to the creation of Fast Track Court pursuant to the notification dated 01.09.2014. In such a matter, where the transfer has been ordered precisely pursuant to the creation of the Court for the special purpose, in our view, even if he has recorded the requirement of transfer in his own record that would remain sufficient for the purpose. In any case, it cannot be said that in the present matter any elaborate reasoned order was required to be passed and supplied to the petitioner nor there appears any prejudice to the petitioner for want of elaborate order. This argument, pertaining to Section 412 Cr.P.C., being rather of form than of substance is of no avail. 17. We may also indicate that even the suggestions that the hearing of the appeal had commenced in the Court of First Additional Sessions Judge, Lucknow appears to be having its own shortcomings. Although certain order sheets have been placed before us but in such order sheets, commencing from 03.07.2014 and even upto 07.11.2014, it is suggested as if the some part arguments were heard and for the remaining arguments, the matter stood adjourned. In our view, in an appeal before a Sessions Judge or Additional Sessions Judge, if at all hearing is commenced, it is ordinarily to be continued until concluded; and it does not stand to reason that such a hearing could also be spread over a period of four months on different dates. It is difficult to accept in the present matter that the effective hearing had commenced in the strict sense of term, as envisaged by Section 409 Cr.P.C. This is apart from what has been observed hereinabove that transfer has been validly made under Section 408 Cr.P.C. In any view of the matter, the order of transfer does not call for any interference by this Court. 18. For what has been observed and discussed hereinabove, the writ petition fails and is, accordingly, dismissed.