Raghunandan Bakshi and Others vs Bidi Chand

G.D. Sharma, J.—Through the medium of this petition quashing of order dated 1-12-94 passed by the learned Sessions Judge, Jammu

whereby he recalled the record of two Revision Petitions titled Bidi Chand v. Raghunandan Bakshi from the Court of learned Additional Sessions

Judge, Jammu to his own file and then on 10-12-94 he stayed the operation of the order passed by the latter is sought by pleading that these

orders were passed without any jurisdiction.

The factual matrix of the case lies in a narrow compass and is to the effect that on 26-11-94 in the absence of learned Sessions Judge, Jammu,

learned Additional Sessions Judge, Jammu was incharge as Sessions Judge, and revision petitions in question i.e. No. 105/94 and 1067 94 (titled

Bidi Chand v. Raghunandan Bakshi) were filed against the orders dated 26-6-92 and 19-11-94 passed by the learned Additional District

Magistrate, Jammu u/s 145 Cr. P.C. and he transferred the same to his own file ""i.e. to the file of Additional Sessions Judge, Jammu. He issued the

notice to the other side after registering the revisions petitions in his record. The record of the subordinate Magistrate was also called.

On 1-12-94 respondent herein namely, Bidi Chand made an application before the learned Sessions Judge, Jammu for transferring the above

stated revision petitions to his own Court from the file of learned Additional Sessions Judge, Jammu. Learned Sessions Judge, Jammu without

issuing the notice to the petitioners herein recalled the revision petitions in question to his own file and passed the impugned order on 10-12-1994

whereby the operation of the impugned orders in the revision petitions were stayed.

The orders dated 1-12-94 and 10-12-94 have been challenged on the ground that the learned Sessions Judge, Jammu had no jurisdiction to

recall the record of the revision petitions from the Additional Sessions Judge, Jammu and the subsequent order i.e. impugned order dated 10-12-

94 was also without jurisdiction.

Heard the arguments.

Mr. JP Singh has referred to the provisions of Section 528 of Code of Criminal Procedure which authorises the Sessions Judge to withdraw

cases from Assistant Sessions Judges. Sub-clause (1)(a) of the said section authorises the Sessions Judge that at any time before the trial of the

case or hearing of the appeal has commenced before the Additional Sessions Judge, any Sessions Judge may recall any case or appeal which he

has made over to any Additional Sessions Judge. Nowhere the section authorises the Sessions Judge to recall the record of the revision petition at

any stage. It is further contended that there is no other specific provision in the Code which authorises the Sessions Judge to recall the record of

revision petition from the file of learned Additional Sessions Judge after making over the record of the revision petitions to his file. Mr. Makhnotra

could not show any provision of the Code or any other law in order to controvert this legal submission being made by Mr. Singh. Rather, Mr.

Makhnotra has contended that the Sessions Judge when has been vested with the powers under the Code of Criminal Procedure to transfer a

revision petition to an Additional Sessions Judge for trial, by the same power, he can recall the record because there is no specific bar for recalling

the record of the revision petition. This argument has been countered by the other side by referring to Sub-clause (2) of Section 438 Cr. P.C.

wherein an Additional Sessions Judge has been authorised to exercise all the powers of a Sessions Judge under Chapter XXXII which also covers

Section 435 in its ambit. In other words, while hearing the revision petition which has been transferred to him under any general or special order of

the Sessions Judge, Additional Sessions Judge is found under law to be exercising power of a Sessions Judge and without any specific

authorisation by any provision of law, the transfer of revision petition from the file of Additional Sessions Judge by the Sessions Judge is not

authorised. Recalling of the case by the Sessions Judge has been authorised under the provisions of Section 528 Cr. P.C. from the Court of

Additional Sessions Judge only in case of trial of cases or in respect of appeals, but before such trial begins or hearing of the appeal begins. In case

the learned Additional Sessions Judge starts with the trial of the case or hearing of the appeal, the Sessions Judge is devoid of the power of

recalling those cases i.e. trial case and appeal case before him. In view of such clear intention of the Legislature expressed in the provisions of law

any other liberal interpretation will run contrary to the scheme of the Code and the spirit of law. In view of such discussion being made, it is found

that learned Sessions Judge passed the order on 1-12-94 without any authority of law whereby he recalled the revision petitions in question to his

own file and subsequently, on 10-12-94 without giving any notice to the other side stayed the operation of the orders impugned in the revision

petitions. These orders are thus without any jurisdiction and non est in the eye of law. Accordingly, the revision petition is accepted and the orders

(dated 1-12-94 and 10-12-94) are set-aside. In the result the record of the revision petitions Nos. 105/94 and 106/94 (titled Bidi Chand v.

Raghunandan Bakshi) will go back from the file of learned Sessions Judge, Jammu to the file of learned Additional Sessions Judge, Jammu for

passing fresh orders in accordance with law.