Smt. Vidhyabai & Ors. vs Mohammad Salim Khan & Ors.

This criminal revision is directed against order dated 4.7.2017 passed by the Sessions Judge, District Chhatarpur in

M.J.C.No.23/2017, whereby Sessions Trial No.270/2016 pending in the Court of Additional Sessions Judge, Lavkushnagar, District Chhatarpur (Link Court) was transferred to the Court of Second Additional Sessions Judge, Chhatarpur for disposal in accordance with law.

The facts giving rise to this criminal revision may briefly be stated thus: Petitioners Naresh, Narendra, Tejram @ Tijju, Chandrashekhar, Dharmendra, Animesh, Karan @ Karunendra and Rehan were facing Session Trial No.270/2016 under Sections 147, 148, 149, 307 and 302 of the I.P.C. on the charge of committing murder of two sons of respondent/first informant Ravishanker Gupta in the Court of Additional Sessions Judge (Link Court) Lavkushnagar (Laudi), District Chhatarpur. Respondent/first informant Ravishanker Gupta moved an application in the Court of Sessions Judge, Chhatarpur under Section 408 / 409 of the Cr.P.C. on 28.4.2017 for transfer of aforesaid sessions trial from the Court of Additional Sessions Judge, Lavkushnagar to a Competent Court at Chhatarpur. It was submitted in the application that accused persons/petitioners, in prosecution of their common object had assaulted two sons of the respondent/first informant Ravishanker Gupta with rods, sticks, hockey sticks and baseball bats etc, while they were waiting at the bus stand Raghunia Trifurcation. As a result, both of them died. The accused persons/ petitioners are rogues and have a criminal past. They threatened the witnesses that if anyone deposes before the Court at Laukushnagar, same fate would befall such witness as that of the deceased persons. The first informant had lodged a written report in Police Station, Lavkushnagar on 28.1.2016 and had also made oral request to Town Inspector and Deputy Superintendent of Police at Lavkushnagar. The link Court of Additional Sessions Judge functions at Lavkushnagar only for a duration of a week every month. The trial of the case is progressing at snail''s pace; therefore, the accused persons/petitioners are taking advantage of the state of affairs by filing copies of the order sheets in the High Court. In these circumstances, it was prayed that the case be transferred from the Court of Additional Sessions Judge, Lavkushnagar, District Chhatarpur to a competent Court in the Head Quarter at Chhatarpur.

Learned Sessions Judge observed in the impugned order dated 4.7.2017 that the application for transfer of the case had been pending before his Court since 28.4.2017. The notices had been issued to the accused persons but none of the notices had been returned back after due service. Learned Public Prosecutor was present. The record of the Court of Additional Sessions Judge had been received; therefore, the service of notice upon the accused persons was not considered necessary and the application under Section 408 / 409 of the Cr.P.C. was decided. Learned Sessions Judge observed that the first informant Ravishanker Gupta had been receiving threat from the accused persons. He had filed a written report in Police Station Lavkushnagar on 28.10.2017 and has also orally complained before the police authorities at Lavkushnagar. The

public prosecutor supported aforesaid contention and admitted that the first informant and prosecution witnesses were being threatened and untoward situation may arise in the Court of Additional Sessions Judge at Lavkushnagar ; therefore, learned Public Prosecutor supported the application for transfer of the case. Learned Sessions Judge further observed that Session Trial No.270/2016 had been pending in the Court of Additional Sessions Judge, Lavkushnagar since 3.11.2016 and till 4.7.2017 only one witness had been examined. It was clear from the order sheets that the accused persons were inclined to protract the trial. Second Additional Sessions Judge, Chhatarpur held Link Court at Lavkushnagar only for a period of one week every month. Two sons of first informant Ravishanker Gupta had been murdered; as such, this was a serious case and attempt was being made to terrorize and influence the prosecution witness. The public prosecutor had conceded that it was not possible to provide proper security to the prosecution witnesses at Lavkushnagar. Safety of the witnesses in such a sensational case was of paramount importance; therefore, the Sessions Trial No.270/2016 was withdrawn from the Link Court of Additional Sessions Judge, Lavkushnagar and was transferred to the Court of Second Additional Sessions Judge, Chhatarpur.

Learned counsel for the petitioners/accused persons have challenged the impugned order mainly on the grounds that no notices had been served upon the petitioners and they were not granted opportunity of being heard before passing the order for

transfer of the case. Four of the eight accused persons were in jail and four were on bail. It would have been very easy to effect services upon the accused persons. Granting opportunity of hearing to the public prosecutor did not serve any purpose because he did not represent the interests of the accused persons. It has further been submitted that the order of transfer of the case was passed on an application made by a party; as such, it was not an administrative order. It was passed in exercise of judicial powers vested in Sessions Judge, under Section 408 of the Cr.P.C. and not in exercise of administrative powers vested by virtue of Section 409 (2) thereof; therefore, the order of transfer could not have been passed without affording the accused persons an opportunity of being heard. In support of aforesaid contentions, learned counsel for the petitioners/accused persons has invited attention of the Court to the judgment rendered by a Division Bench of this Court In reference by District and Sessions Judge Raisen, 2005(3) M.P.L.J 26.

Learned counsel for the petitioners further contended that one witness has already been examined in the Court of Additional Sessions Judge, Lavkushnagar; as such, trial in the case had begun; therefore, by virtue of sub section (2) of Section 409 of the Cr.P.C. the trial could not have been withdrawn by the Sessions Judge and made over to another Court. It has also been contended that since passing of the order, leaned Second Additional Sessions Judge, who used to hold link Court at Lavkushnagar for a period of one week per month only, has been permanently transferred to Lavkushnagar; therefore, the Court of additional Sessions Judge is now functioning at Lavkushnagar permanently. All witnesses and the parties are also from Lavkushnagar. The incident had occurred within the territorial jurisdiction of the Court at Lavkushnagar; therefore, even on merits, it was inappropriate for the learned Sessions Judge to have transferred the case from Lavkushnagar to Chhatarpur merely on the basis of bald allegations; therefore, it has been prayed that the impugned order be set aside.

Learned counsel for the respondent/first informant as well as learned panel lawyer for the respondent/State No.2 on the other hand, has supported the impugned order.

On perusal of the record and consideration of rival contentions, the Court is of the view that the impugned order warrants interference for the reasons hereinafter stated:

The application for withdrawal/transfer of the case was made under by the first informant " Sections 408 / 409 of the Cr.P.C.". Thus, the learned Sessions Judge invoked his jurisdiction on an application made by a party interested. The case was registered as a misc. criminal case and the order was passed after giving opportunity of hearing to the first informant and learned public prosecutor. Learned Session Judge has also recorded the reasons for withdrawal and making over the case; therefore, it is obvious that learned Session Judge had actually exercised his jurisdiction under Section 408 (1) of the Code . It has been held by a Division Bench of this

Court in the case In reference by District and Sessions Judge Raisen 2005(3) M.P.L.J. 26 that:

"In view of the above discussions, the position may be summarized thus:

(a) A Sessions Judge in exercise of judicial power under Section 408 of the Code may transfer any case pending before any Criminal Court in his Sessions Division to any other Criminal Court in his Sessions Division. That would mean that he can transfer even those cases where the trial has commenced from one Additional Sessions Judge in his Sessions Division to another Additional Sessions Judge in his Sessions Division. The transfer of a case under Section 408 of the Code being in exercise of a judicial power, it should be preceded by a hearing to the parties interested. Further, the reason or reasons why it is expedient for the ends of justice to transfer the case, has to be recorded. (b) The judicial power under Section 408(1) and the administrative power under Section 409 (1) and (2) are distinct and different and Section 408 is not controlled by Section 409(2). A Sessions Judge in exercise of his administrative power under Section 409 may : (i) withdraw any case or appeal from any Assistant Sessions Judge or Chief Judicial Magistrate subordinate to him; (ii) recall any case or appeal which he has made over to any Assistant Sessions Judge or Chief Judicial Magistrate sub-ordinate to him; (iii) recall any case or appeal which he has made over to any Additional Sessions Judge, before trial of such case or hearing of such appeal has commenced before such Judge. and try the case or hear the appeal himself or make it over to another Court for trial or hearing in accordance with the provisions of the Code. No hearing need be granted to any one before exercising such power. But the reason therefor shall have to be recorded having regard to Section 412.

In these circumstances, it was imperative to have granted opportunity to the accused persons of being heard before ordering withdrawal of the case but it is clear from the order sheets that no such opportunity of hearing was granted to the accused persons; therefore, the impugned order is not sustainable in the eyes of law and is liable to be set aside on this preliminary ground alone.

Therefore, without committing upon the merits of the case, this criminal revision is allowed and the impugned order dated 4.7.2017 passed by the learned Sessions Judge, Chhatarpur in M.J.C. No.23/2017 is set aside.

The matter is remitted back to the learned Sessions Judge for affording a reasonable opportunity to the accused persons of being heard and decide the application dated 20.4.2017 afresh.

The parties shall appear before the Learned Sessions Judge on 5.1.2018. The accused persons who are in jail shall be kept present before the learned Sessions Judge on aforesaid date.

Let a copy of this order be communicated immediately to learned Sessions Judge as well as appropriate authorities at Sub-Jail Lavkushnagar, for information and necessary compliance.