Abdul Hamid and Others vs State of U.P.

Gopi Nath, J.—This is a petition u/s 407 Code of Criminal Procedure. The accused are the applicants. They pray that the Sessions Judge, Allahabad be directed to send the record of S. T. No. 418 of 1978, State v. Abdul Hamid and Ors S. T. No. 418 of 1978. pending in the court of III Additional Sessions Judge to the Court of IV Addl. Sessions Judge.

The circumstances leading upto this petition are as follows:-

The case was committed to the court of Sessions, and the Sessions Judge transferred it to the court of IV Additional Sessions Judge in the year 1979. Sri Govind Prasad was the Presiding Officer of that court. Sri Govind Prasad framed the charges. It was submitted that by the framing of charges the case became part heard with him. Sri Govind Prasad thereafter died and Sri V.K. Sircar was posted as IV Additional Sessions Judge in his place. Sri V.K. Sircar IV Additional Sessions Judge, did not commence any proceedings in the case, only the file of the case lay in his court. The Sessions Judge, by an order, transferred the case to the court of III Additional Sessions Judge, which is now presided over by Sri D.C. Agarwal.

The Petitioners have challenged the order of transfer of the case from the court of IV Additional Sessions Judge to the court of III Additional Sessions Judge on the ground that the proceedings having commenced in the court of IV Additional Sessions Judge, it could not be transferred to the court of III Additional Sessions Judge. It was suggested that since the case was part-heard in the court of IV Additional Sessions Judge, the Sessions Judge had no power to transfer it from that court. Learned Counsel invited my attention to Sub-section (2) of Section 409 of the Code of Criminal Procedure and contended that the transfer was in breach of that provision, and accordingly bad in law. Section 409 deals with the withdrawal of cases by the Sessions Judge and reads:

(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 or 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.

The allotment of a case by the Sessions Judge to the court of an Additional Sessions Judge is provided for by Section 194, Code of Criminal Procedure. It states that an Addl. Sessions Judge or Assistant Sessions Judge shall try such cases as the Sessions Judge of the Division may, by general or special order, make over to him for trial or as the High Court may, by special order, direct him to try. The contention of the learned Counsel was that as the trial of the case had commenced in the court of IV Additional Sessions Judge, the Sessions Judge had no power to recall or transfer the case from that court, as it was a part-heard case, has no force. A case is part heard by an officer or a Judge and not by a court. By Sub-section (2) of Section 409 a Sessions Judge may not recall any case trial of which has commenced before the Additional Sessions Judge. Three conditions have to be satisfied to attract the restriction on recall:

(i) that the trial of a case has commenced i. e. the process of trial is continuing; (ii) that the trial has been commenced by the Additional Sessions Judge i. e. by a particular Additional Sessions Judge;

(iii) that the commenced trial is before the Additional Sessions Judge i. e. it is pending before him. The intention of the Legislature seems to be that if a trial has been commenced by a particular Sessions Judge and is continuing before him, the case which is part heard by him may not be transferred by the Sessions Judge.

It is not a mere commencement of a trial but the commencement of it before a particular Sessions Judge which attracts the provisions of Sub-section (2) of Section 409. The provision does not merely say "at any time before the trial of the case or the hearing of the appeal has commenced" but states further that it is before the Additional Sessions Judge. This clearly contemplates the presence of the Addl. Sessions Judge to continue the case. If the particular Additional Sessions Judge before whom the case had commenced has either been transferred outside the Sessions Division or has died, the restriction imposed by Sub-section (2) of Section 409 would not come into play.

Learned Counsel then submitted that, if the particular Additional Sessions Judge was not available in the Sessions Division, Sub-section (2) of Section 409 would be inapplicable and the Sessions Judge would then have no power to recall a case. This argument is fallacious and devoid of any merit. Sub-section (2) of Section 409 which deals with the power of the Sessions Judge to recall a case from the court of an Additional Sessions Judge, by its first part, places a restriction on that power which otherwise is absolute. The second part of Sub-section (2) of Section 409 gives the power of recall to the Sessions Judge and states "....a sessions judge may recall a case at any time which is hedged in by the restriction contained in the first part which states before the trial of the case or the appeal has commenced before the Additional Sessions Judge." The Sessions Judge thus can recall a case at any time before an Additional Sessions Judge has commenced the proceedings and is available to continue it. It is not only the commencement of the proceedings but the seizing of it by the Addl. Sessions Judge which attracts the restriction contained in Sub-section (2). In the instant case, the Judge who commenced the proceedings died. His successor did not commence any proceeding. The Sessions Judge was thus fully competent to transfer the case to another court. Hon''ble C.S.P. Singh, J., in Dilshad v. State (Cr. Misc. Transfer Application No. 2581 of 1980) went to the extent of observing that u/s 408 of the Code of Criminal Procedure, a Sessions Judge could transfer even a part-heard case. He observed:

The powers under Sections 408 and 409 are distinct powers, and, although an order of transfer results in withdrawal of a case from a court, the Act seems to draw a distinction between these two powers, for, although the Sessions Judge can exercise his powers u/s 408 at any stage of the case, he cannot do so while exercising powers u/s 409. Inasmuch as the legislature has made separate provision for the exercise of these two jurisdictions and hedged in one, qua Additional Sessions Judge, by the rider that the power of withdrawal can be exercised only in case the trial or the hearing of the appeal has not started while it has imposed no limitation in the case of other courts, it is not possible to read Section 408 as being subservient to Section 409.

It is not necessary to go that far or discuss that question in the instant case.

u/s 409 itself, the Sessions Judge had the power to transfer the instant case.

The petition tails and is dismissed.