Sampurnanand Pandey vs State of U.P. and Another

Barkat Ali Zaidi, J.—Complainant in S. T. No. 653 of 2004, State v. Surya Narain and Ors. S.T. No. 653 of 2004 under Sections 498A and 304B I.P.C., pending in the Court of XIIIth Addl. Sessions Judge, Allahabad, wants his case to be transferred to another Court.

Heard Sri Swetashwa Agrawal, advocate for the applicant Sri Sanjai Sharma, Additional Government Advocate for the State, and Sri A. K. Malviya, advocate for opp. party No. 2 accused Surya Narayan.

The facts relating to this transfer application are that initially the case was pending in the court of Additional Sessions Judge, Fast Track Court No. 20, Allahabad. On transfer of the Presiding Judge and there being no incumbent the trial was transferred to the court of IIIrd Additional Sessions Judge, Allahabad, where the Presiding Officer, at that time, recorded evidence of five defence witnesses, who was subsequently shifted to another court of Special Judge (E.C. Act), where he remains as such till a day.

On his transfer, and since the Court had become vacant, the complainant filed an application before the District and Sessions Judge, requesting him that the case being part-heard, be sent to the court of Additional Sessions Judge/Special Judge (E.C. Act) for the trial.

Before the application could be decided, a new Presiding Officer joined as IIIrd Additional Sessions Judge, who recorded statements of two more defence witnesses. Thereafter, he was shifted as Additional Sessions Judge, Court No. 15 and the Court No. 3 again became vacant.

The applicant, therefore, moved one more Transfer Application saying that since the Judge who recorded the statements of two defence witnesses, was now shifted to Court No. 15, the case being part-heard, be shifted to his Court or to the Court of earlier Judge, who had recorded the statements of five defence witnesses, and is Special Judge (E.C. Act), for the present, but the District and Sessions Judge rejected this application vide order dated 4.3.2008 and sent the case to the Court of Additional Sessions Judge, Court No. 13, Allahabad.

Counsel for the applicant has cited a Full Bench decision in case of Radhey Shyam v. State of U.P. and Anr. (XXI) 1984ACC 241: 1984 ACR 297 , wherein, it has been held that the Sessions Judge is not empowered to transfer a part-heard case, from one Additional Sessions Judge to another, on administrative side. Of the Additional Sessions Judge, who was trying the case, continues to be in the District as Additional Sessions Judge. The principle enunciated by the Full Bench decision has to be applied in the present case and on the basis thereof, the case has to go to the Additional Sessions Judge, who recorded the statements of five defence witnesses and who recorded the statements of five defence witnesses and who continues to be at the station as Addl. Sessions Judge/Special Judge (E.C. Act).

The order of the District and Sessions Judge dated 4.3.2008 is set aside and the case shall be placed on the file of Additional Sessions Judge/Special Judge (E.C. Act), Allahabad for trial.