Pradip Sharma vs State of Assam

I.A. Ansari, J.—This is an application made u/s 482 Cr.P.C. seeking direction from this Court to the learned Sessions Judge, Kamrup to dispose of Sessions Case No. 216(K)/2002, arising out of GR Case No. 3808/2002, under Sections 342/376 IPC registered against the accused petitioner.

This revision has raised an important question of law. For the purpose of disposed of this revision, the material facts leading to the present revision may, in brief, be stated as follows :-

The accused-petitioner faced in Sessions Case No. 216(K)/2002 aforementioned trial in the Court of learned Additional Sessions Judge, Kamrup, on the charges framed against the accused-petitioner under Sections 342/376 IPC. As the accused pleaded not guilty to the charges so framed, the recording of evidence of prosecution evidence commenced and after recording the evidence of as many as four witnesses for the prosecution, the learned Additional Session Judge, Kamrup, got transferred. Thereafter, on a petition made by the accused-petitioner himself, the learned Sessions Judge, Kamrup, withdrew the case aforementioned to his own file and recorded the evidence of two more witnesses, namely, PW 5 (HA Ahmed) and PW 6 (Labanya Kumar Talukdar) both of whom are sub Inspectors of Police and Investigating Officers of the case. The learned Sessions Judge, Kamrup, then, recorded the statement of the accused-petitioner u/s 313 Cr.P.C.

Having realized that the withdrawal of the case by the learned Sessions Judge, Kamrup, to his own file was illegal and without jurisdiction, the petitioner has approached this Court with the help of the present application made u/s 482 Cr.P.C. It needs to be noted and emphasised that under Sub-section (1) of Section 409 Cr.P.C., 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. So far as withdrawal of cases from the Additional Sessions Judges is concerned, Sub-section (2) of Section 409 Cr.P.C. lays down that 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.

From a combined reading of the provisions of Sub-sections (1) and (2) of Section 409 Cr.P.C., it becomes abundantly clear that while a Sessions Judge may withdraw any case or appeal, at any stage, from the Assistant Sessions Judge or Chief Judicial Magistrate, the Sessions Judge cannot withdraw any case or appeal from the Additional Sessions Judge if the trial of the case or the hearing of the appeal has commenced.

It logically follows that in the present case, when the Additional Sessions Judge had already framed the charges and the evidences of as many as four witnesses already stood recorded, the learned Sessions Judge could not have withdrawn the case from the Additional Sessions Judge for the purpose of disposal.

From the above, it is clear that after the trial commences in the Court of Additional Sessions Judge, the Sessions Judge has no power to withdraw such a case to his own file and dispose of the same. Viewed from this angle, the withdrawal of the Sessions Case No. 216(K)/2002 aforementioned by the learned Sessions Judge, Kamrup, Guwahati, was without jurisdiction and illegal inasmuch as the trial had, admittedly, commenced in the Court of learned Additional Session Judge, Kamrup, and the evidence of as many as four witnesses already stood recorded. In consequence, thereof, the recording of evidence of PWs. 5 and 6 as well as the recording of the statement u/s 313 Cr.P.C. by the learned Session Judge, Kamrup, was without jurisdiction and must be treated as non est in law. However, the fact remains that the Court of Additional Session Judge, Kamrup, is still vacant and the Sessions Case No. 216(K)/2002 aforementioned deserves to be expeditiously disposed of.

Considering, therefore, the matter in its entirety and in the interest of justice, the order dated 10.3.2003, whereby the learned Session Judge, Kamrup, had withdrawn the case aforementioned from the Court of learned Additional Session Judge, Kamrup, is hereby set aside and quashed. This apart, the evidence of the two witnesses aforementioned, namely, PWs 5 and 6 as well as the statement of the accused-petitioner recorded u/s 313 Cr.P.C. are also set aside and quashed and the same shall be treated as non est in law.

In the interest of justice, it is further directed that Sessions Case No. 261(K)/2002 aforementioned shall, now stand transferred to the Court of learned Session Judge, Kamrup, and the learned Session Judge, Kamrup, is hereby directed to record afresh the evidence of Sub-Inspector. HA Ahmed and Sub-Inspector, Labanya Kumar Talukdar aforementioned and dispose of the case in accordance with law contained in that behalf.

With the above observations and directions, this revision shall stand disposed of.