Sutjit Singh vs State of Punjab Etc.

Surinder Singh, J.—This petition which purports to have been filed under Article 227 of the Constitution of India, read with Sections 482 and 401 of the Code of Criminal Procedure thereinafter referred to as the Code), seeks to impugne the order passed by Shri Raghbir Singh Sessions Judge, Ludhiana, on April 28, 1976, in the circumstances which are these. The case State v. Amar Singh and others under Sections 302/307/148/149/120B, Indian Penal Code (hereinafter called the Penal Code, was committed u/s 209 of the Code to the Court of Session for trial. The Sessions Judge entrusted the case to the Court of Shri Mewa Singh, Additional Sessions Judge Ludhiana, for disposal. When the case was taken up by the latter Court on December, 18, 1975, charges for various offences were framed against the four accused persons and the case was adjourned to April, 1976 for recording prosecution evidence. As mentioned in the impugned order of the Sessions Judge, before the date fixed for recording prosecution evidence, one of the accused lodged complaint to Chief Justice of this Court, on the Administrative side, mating an allegation that Shri Hukam Singh, father-in-law of Shri Mewa Singh, Additional Sessions Judge, who bad to try the case, was inimical towards him and his co-accused Jagdish Singh. The accused, therefore, prayed that their case may be withdrawn from the Court of Shri Mewa Singh and entrusted to the Sessions Judge, for trial. As a result of that complaint, a confidential letter No. 358-RHO/61 - p/70 dated March. 5, 1976 was issued by this Court through the Registrar, to the Sessions Jugde, with the following directions:

I am directed to forward here with a copy of the complaint cited above as subject, together with the original affidavit, dated the 10th February, 1976, filed by the complainant, and to request you to take necessary action to transfer the case to your own Court.

In compliance with the above directions, the Sessions Judge issued orders on March 11, 1976, recalling the case from the Court of Shri Mewa Singh and thus brought the same on the file of his own Court. When the trial commenced in the Court of the Sessions Judge, and before arguments on the question of charges to be framed were addressed the complainant Sal jit Singh (now the Petitioner) moved an application before the Sessions Judge, objecting to the legality of the order passed by the Sessions. Judge, recalling the cane(sic) from the Court of the Additional Sessions Judge. The complainant played that the case may be sent back to the Court of Shri Mewa Singh Additional Sessions Judge, for trial. This application was disposed of by means of the order which is now impugned.

The principal and in fact the sole argument advanced by the Learned Counsel for the patitioner is that the withdrawal of the case by the Sessions Judge from the Court of the Additional Sessions Judge was not warranted by any provision of law. According to the counsel, such an order could have been passed only by the High Court and that too in consequence of an application filed u/s 407 of the Code. It is urged that none of the grounds of transfer of the case, as envisaged in Section 407, existed in the present case. The contention of the Learned Counsel is, however, fallacious. Section 407 of the Code provides for the transfer of an inquiry or trial from one subordinate Court to another or even to the transfer of such a matter to the High Court itself. For this purpose the High Court can act either on the report of the lower Court or on the application of the party interested or even on its own initiative. This provision does not however, preclude the High Court from exercising power''s available to it under the Constitution of India. Article 233 of the "Constitution confers upon the High Court wide powers over the working of District Courts and the Courts subordinate thereto. The term used in the Article is Control". The import of the word "control" used here was examined by the Supreme Court in The The State of West Bengal Vs. Nripendra Nath Bagchi, wherein it was held by their lordships that the use of this word as also the word "vest" in Article 235, shows that the High Court is made the sole custodian of the control over the judiciary. It was further observed that this control is not merely the powers to arrange day to day working of the Courts but contemplates disciplinary jurisdiction over the Presiding Judges of those Courts. It is significant to note that even before the Supreme Court, it was not disputed that the day-to-day working of the Courts falls within the ambit of the word "control".

The matter may be viewed from another angle also. The Letters Patent of the Lahore High Court of which this High Court is a successor) confers powers upon the High Court, in proper cases, to transfer proceedings, both of civil as well as criminal nature, from the Courts which are subject to the superintendence of the High Court. Clause 9 speaks of such a power in regard to civil cases, while Clause 2 states that the High Court shall have power to direct the transfer of any criminal case of appeal from any Court to any other Court of equal or superior jurisdiction. The exercise of these powers is not limited to any particular eventualities. In fact very wide powers for transfer of cases are envisaged. The contention of the Learned Counsel that beyond Section 407 of the Code, there is no other provision conferring upon the High Court the right to transfer case, must, therefore, be repelled.

The present petition is otherwise not competent, if we examine it from the point of view of technicalities. The order passed by the learned Sessions Judge is apparently not a result of the exercise of bis own discretion or power under the law. He had merely, complied with the directions issued by the High Court for the withdrawal of the case from the Court of the Additional Sessions Judge. What should pinch the Petitioner is, therefore, not the order of the Sessions Judge, but that of the High Court itself. Such an order, (which for all intents and purposes is the order of the High Court), cannot be impugned in a petition filed either under Article 227 of the Constitution of India or under Sections 482/401 of the Code. Article 227 of the Constitution merely confers upon the High Court, power of superintendence over all courts and Tribunals under its jurisdiction and not over the High Court itself. The same is the position in regard to Sections 482 and 40) of the Code. The petition, therefore, is liable to be dismissed on this ground alone. Apart from this, it is not competent for a complainant to resist the transfer of a case which is essentially a matter to be settled between the accused and the State. In the present case the learned Senior Deputy Advocate General, appearing on behalf of the State, assumed the role of the silent spector and did not support the stand of the Petitioner. This very joint was the subject matter of consideration in Brahmoutt v. State AIR 1950 all. 484. and it was held that a third person had no right to object to the transfer of a case, even though in certain circumstances, he may be considered to be an interested party. The objector in the said case was only a witness in the case. I have no reason to differ from the view expressed in Brahmdutt''s case (supra).

In the circumstances noticed above, there is no merit in this petition, which is consequently dismissed.