Diwan Chand vs The State of U.P.

H.N. Kapoor, J.—This is a petition u/s 482, Cr. P.C. for setting aside the order dated 6-9-1974, of the Special Judge, West refusing to recall the witnesses whose evidence was recorded before the Special Judge, East (Anti-Corruption) in the case of Diwan Chand who was prosecuted u/s 409, I.P.C and Section 5 (2) read with Sections 5 (1) (c), 5 (1) (d) of the Prevention of Corruption Act, This case (which is Criminal Case No. 1 of 1966) State v. Diwan Chand was originally tried by the Special Judge, West who had jurisdiction in the area to which this case belonged. Subsequently, this case along with some other cases was transferred to the Special Judge, East by Notification No. 3995/6-729/68 dated 17-2-1969 of the Government of Uttar Pradesh (Home General) Department. It is said that the evidence had already been recorded partly by the Special Judge, West when the case was transferred to the Special Judge, East. A transfer application was moved before this Court u/s 526, Cr. P.C. (old). That transfer application (Cri. Misc. Case No, 443 of 1973) was allowed on 4-4-1974 (All) by Hon''ble K. B. Srivastava, J. He has observed in his order that according to notification shown to him the Judge, Anti-Corruption East, had no jurisdiction over the District of Saharanpur, to which district the case related. So he transferred the case to the Judge, Anti-Corruption West. A request thereafter was made before the Special Judge West to recall all the witnesses who had been examined before the Special Judge, East and he rejected that request by the impugned order. Learned Counsel for the State has argued that it appears that the attention of Hon''ble K. B. Srivastava, J. was not drawn to the notification dated 17-2-1969 by which this case along with some other cases was particularly transferred to the Special Judge, East u/s 6 of the Criminal Law (Amendment) Act, 1952 by the Government. In the petition Criminal Misc. Case No. 443 of 1973 there is mention of this notification. Section 6 of the Criminal Law (Amendment) Act empowers the State Government to appoint as many Special Judges as may be necessary for such area or areas as may be specified in the notification. In case there are more Judges in the same area it may be possible for the State to allot some cases to one Judge and to allot other cases to another Judge but it is not contemplated that the State Government can transfer a pending trial from the Court of one Special Judge to another Special Judge. In this view I am supported by a decision of the Punjab High Court in Ratilal M. Nanavati and Others Vs. State of Delhi, . A learned Single Judge of our Court in the case of State of Uttar Pradesh Vs. Sat Narain and Others, also took the view that there can be no appointment of Special Judge for particular cases but the appointment can be for particular area. Under these circumstances the proceedings before the Special Judge, East Anti-Corruption in the present case is, without jurisdiction. All the witnesses examined before that Judge should be recalled as prayed, and the Special Judge, West should proceed from the stage at which the case was when it was transferred from the Court of the Special Judge, West by the notification dated 17-2-1969.

In the result, the petition is allowed. The order of the Special Judge, West dated 6-9-1974 is set aside and he is directed to recall the witnesses who were examined before the Special Judge. East as prayed.