Kaushal Kishore and Others vs State of U.P. and Another

R.P. Shukla, J.—This is an application u/s 407, Code of Criminal Procedure, seeking transfer of Sessions Trial No. 258 of 1986 State v. Kaushal Kishore and Ors. to the court of Sri A.B. Shukla, Fourth Additional Sessions Judge, Etah, on the grounds, that in the aforesaid case charges were framed by Sri A.B. Shukla, the then Fifth Additional Sessions Judge, Etah, on 13.11.1986 and he fixed the case for evidence for 2nd and 3rd December, 1986. Though Sri Shukla was thereafter transferred in the same sessions division as the Fourth Additional Sessions Judge, the case remained with him as part heard, but the District and Sessions Judge transferred the aforesaid case on 12.1.87 on the application of Smt. Krishna Devi dated 9.1.1987 to Seventh Additional Sessions Judge, Etah, and hence learned Counsel for the applicant has contended that the order of the Sessions Judge was improper, illegal and without jurisdiction and was liable to be set aside. The learned Counsel for the applicant has also contended that Smt. Krishna Devi had no locus standi to move the transfer application dated 9.1.1987. I have heard the learned Counsel on either side and have perused the affidavits. Smt. Krishna Devi is a witness in the aforesaid case. It was her husband who was done to death and the first information report was lodged by her son Dhananjai. u/s 407(2), Code of Criminal Procedure, the High Court may act either on the report of the lower court or on the application of a party interested or on its own initiative. Smt. Krishna Devi is definitely a party interested in the case and, therefore, had every locus standi to move the transfer application.

There can be no controversy with the decision of a case in Punjab Singh v. State 1983 A CrR 35 that the jurisdiction of a Judge does not cease by mere change in his designation, but in the present case, I am of the opinion that Sri A.B. Shukla cannot be held to be a Judge who had heard and recorded any evidence in this case within the meaning of Section 326, Code of Criminal Procedure. It is only when a Judge or a Magistrate has heard and recorded the whole or part of the evidence in a case that the case becomes part heard with that Judge or Magistrate and is in such a case that his jurisdiction does not cease merely by a change in his designation. Sri A.B. Shukla has admittedly not recorded any evidence in this case. He had only framed charges in this case and mere framing of charge does not amount to recording of evidence in the case. The relevant portion of Section 326(1), Code of Criminal Procedure reads as under:

Whenever any Judge or Magistrate after having heard and recorded the whole or any part of evidence in an inquiry or trial". The words "after having heard and recorded whole or any part of the evidence clearly indicate that the Judge or Magistrate contemplated in this case is that the Judge or Magistrate who has recorded whole or any part of the evidence in the case. When a Judge or Magistrate frames charge in a case u/s 228, Code of Criminal Procedure, he does not record any evidence in the case. In fact, the recording of evidence in a case starts when the trial against an accused commences and the trial commences not with the framing of charge but immediately after it. The purpose of a charge framed by a court is: (i) only to tell the accused the matter with which he is charged, (ii) to convey to him what actually the prosecution intends to prove and (iii) the matter which he will have to face at the trial. Framing of charges does not, therefore, amount to recording of evidence in the trial which he will have to face at the trial. Framing of charges does not, therefore, amount to recording of evidence in the trial which in fact follows after the charge is read over to the accused.

In Punjab Singh''s case two kinds of cases are said to be part heard with a Judge: (i) where the Judge had framed only charges and R. Ps. had not recorded evidence and (ii) where the Judge heard and recorded evidence either wholly or in part. In the first category of cases, it has been clearly held in Punjab Singh''s case that Section 326, Code of Criminal Procedure in terms may not apply but with respect to second category of cases it has held that the Judge is "seized of the matter" and his jurisdiction to deal with it has not been terminated. In the second category of cases the Judge would continue to exercise his jurisdiction. Consequently, it cannot be held that the jurisdiction of Sri A.B. Shukla to proceed with the trial has not been terminated and he has still seized of the matter and, therefore, prayer for transfer of the case to the court of Sri A.B. Shukla cannot be granted.

In the end, I would say that the District and Sessions Judge can always transfer a case from one criminal court to another criminal court in his Sessions division if he finds that it is expedient in the interest of justice to do so.

In the result, the application fails and is dismissed. The stay order is hereby vacated. The office shall communicate this order to the Seventh Additional Sessions Judge, Etah so that he may proceed with the trial expeditiously.