HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Reserved Criminal Revision No.66 of 2011 Baccharam Shukla ...Applicant/Revisionist Versus State of U.P. And others ...Opp.parties. *** Hon'ble Shri Narayan Shukla,J.
Heard Mr.Daya Shanker Mishra, learned counsel for the revisionist and Mr.Rajendra Kumar Dwivedi, learned Additional Government Advocate for the State as well as Mr.Sharad Dixit, learned Advocate appearing for the victim.
The revisionist has challenged the order dated 11th of February, 2011, passed by the Special Judge (Gangster Act), Gonda in Sessions Trial No.146 of 2002, rejecting the revisionist's application being application No.Kha-219. Further he has also challenged the subsequent order dated 14th of February, 2011, passed by the court concerned, whereby the revisionist's request to provide time for additional arguments has been rejected.
Upon perusal of the record it appears that the revisionist moved an application under Section 311 of the Code of Criminal Procedure to summon P.W.1 to P.W.5, namely, Ram Pujan, Munna Ram, Anand Prakash, Shiv Das and Amar Nath for re-cross examination, which has been rejected by the court.
Upon perusal of the record it is obvious that earlier also the revisionist moved an application being application No.91-Kha for summoning those witnesses for their re-examination, which had already been rejected on 25th of September, 2008, whereas the revisionist did not choose to challenge the said order, rather after two years again moved the application in question.
Keeping in view the past conduct of the revisionist during the course of trial as he has not cooperated with the proceedings, the trial court has expressed its opinion to the effect that the revisionist is not interested in disposal of the matter, rather he is interested in lingering on the case for one or another reason by moving such an application, which is fortified by his conduct as when he could not succeed upon the said application, he sought further time for an additional argument, even after arguments are over in the matter, which has been rejected by the court concerned, as the revisionist is involved in a heinous crime like murder. The revisionist is on bail that is why he is making his all efforts to delay the trial.
The learned Additional Government Advocate raised objection against the maintainability of the revision on the ground that the Hon'ble Supreme Court in the case of Sethuraman versus Rajamanickam, reported in 2009 (2) JIC 586 (SC) has held that the order passed by the trial court, refusing to call the witnesses and documents and rejecting the application under Section 311 of the Code of Criminal Procedure, was interlocutory in revision and as such the revision against the said order is clearly barred under Section 397 (2) Cr.P.C. In support of his submission he has also cited the following decisions:-
(1) Asif Hussain versus State of U.P. And another, reported in 2007 (57) ACC 1036.
(2) Hanuman Ram versus State of Rajasthan and others, reported in (2008) 15 SCC 652.
In reply, on the point of maintainability, the learned counsel for the revisionist has cited the decision of Mahabir Singh and another versus Emperor, reported in AIR (31) 1944 Calcutta 17 (Full Bench), but I am of the view that once the Hon'ble Supreme Court held that the order passed on the application moved under Section 311 of the Code of Criminal Procedure is not revisable, there was no occasion to deviate from the aforesaid dictum of the Hon'ble Supreme Court and in view of the settled view of the Hon'ble Supreme Court, no further discussion is needed.
The learned counsel for the revisionist further submitted that the principles of res judicata as enumerated in Section 11 of the Code of Civil Procedure or the general principles thereof will have no application in a criminal procedure, as has been held by the Hon'ble Supreme Court in the case of Devendra and others versus State of Uttar Pradesh and another, reported in (2009) 7 SCC 495.
Without discussing the aforesaid preposition of law laid down by the Hon'ble Supreme Court, I am of the view that the revisionist kept mum for two years and as such he accepted the earlier order, but after a considerable delay, he again raised the same plea, which does not appear reasonable and bonafide keeping in view the revisionist's conduct in the proceeding, therefore, I am of the view that the aforesaid plea raised by the revisionist does not help him in the matter. It is a clear instance of misuse of the process of court by the revisionist.
The revisionist has also raised the question on the jurisdiction of the court by asserting that once the court to whom the matter being entrusted was exercising the power, was very much available for functioning, there was no occasion for the District and Sessions Judge to transfer the matter to another court i.e. Special Judge (Gangster Act) for trial that too after recording the evidences of the witnesses.
The Sessions Judge has to exercise his power to transfer the case and appeal under Section 408 of the Code of Criminal Procedure, which is extracted below:-
"408. Power of Sessions Judge to transfer cases and appeals.-(1) Whenever it is made to appear to a Sessions Judge that an order under this sub-section is expedient for the ends of justice, he may order that any particular case be transferred from one Criminal Court to another Criminal Court in his sessions division.
(2) The Sessions Judge may act either on the report of the lower Court, or on the application of a party interested or on his own initiative.
(3) The provisions of sub-section (3), (4), (5), (6), (7) and (9) of section 407 shall apply in relation to an application to the Sessions Judge for an order under sub-section (1) as they apply in relation to an application to the High Court for an order under sub-section (1) of section 407, except that sub-section (7) of that section shall so apply as if for the words "one thousand rupees" occurring therein, the words "two hundred and fifty rupees" were substituted."
Since some of the provisions as inserted under Section 407 and 326 of the Criminal Procedure Code, apply in proceeding with an application moved under Section 408 of the Code, it is pertinent to reproduce Sections 407 of the Code of Criminal Procedure, which are as under:-
"407.Power of High Court to transfer cases and appeals.-(1) Whenever it is made to appear to the High Court-
(a) that a fair and impartial inquiry or trial cannot be had in any Criminal Court subordinate thereto, or
(b) that some question of law of unusual difficulty is likely to arise; or
(c) that an order under this section is required by any provision of this Code, or will tend to the general convenience of the parties or witnesses, or is it may order-
(i) that any offence be inquired into or tried by any Court not qualified under sections 177 to 185 (both inclusive), but in other respects competent to inquire into or try such offence;
(ii) that any particular case or appeal, or class of cases or appeals, be transferred from a Criminal Court subordinate to its authority to any other such Criminal Court of equal or superior jurisdiction;
(iii) that any particular case be committed for trial to a Court of Session;or
(iv) that any particular case or appeal be transferred to and tried before itself.
(2) The High Court may act either on the report of the lower Court, or on the application of a party interested, or on its own initiative:
Provided that no application shall lie to the High Court for transferring a case from one Criminal Court to another Criminal Court in the same sessions division, unless an application for such transfer has been made to the Sessions Judge and rejected by him.
(3) Every application for an order under sub-section (1) shall be made by motion, which shall, except when the applicant is the Advocate-General of the State, be supported by affidavit or affirmation.
(4) When such application is made by an accused person, the High Court may direct him to execute a bond, with or without sureties, for the payment of any compensation which the High Court may award under sub-section(7).
(5) Every accused person making such application shall give to the Public Prosecutor notice in writing of the application, together with a copy of the grounds on which it is made; and no order shall be made on the merits of the application unless at leas twenty-four hours have elapsed between the giving of such notice and the hearing of the application.
(6) Where the application is for the transfer of a case or appeal from any subordinate Court, the High Court may, if it is satisfied that it is necessary so to do in the interests of justice, order that, pending the disposal of the application, the proceedings in the subordinate Court shall be stayed, on such terms as the High Court may think fit to impose.
Provided that such stay shall not affect the subordinate Court's power of remand under section 309.
(7) Where an application for an order under sub-section (1) is dismissed, the High Court may, if it is of opinion that the application was frivolous or vexatious, order the applicant to pay by way of compensation to any person who has opposed the application such sum not exceeding one thousand rupees as it may consider proper in the circumstances of the case.
(8) When the High Court orders under sub-section (1) that a case be transferred from any Court for trial before itself, it shall observe in such trial the same procedure which that Court would have observed if the case had not been so transferred.
(9) Nothing in this section shall be deemed to affect any order of Government under section 197.
Section 326 of the Code of Criminal Procedure is also relevant for the matter, which is extracted below:-
326.Conviction or commitment on evidence partly recorded by one Judge or Magistrate and partly be another.(1) Whenever any Judge or Magistrate after having heard and recorded the whole or any part of the evidence in an inquiry or a trial, ceases to exercise jurisdiction therein and is succeeded by another Judge or Magistrate who has and who exercises such jurisdiction, the Judge or Magistrate so succeeding may act on the evidence so recorded by his predecessor, or partly recorded by his predecessor and partly recorded by himself:
Provided that if the succeeding Judge or Magistrate is of opinion that further examination of any of the witnesses whose evidence has already been recorded is necessary in the interests of justice, he may re-summon any such witness, and after such further examination, cross-examination and re-examination, if any, as he may permit, the witness shall be discharged.
(2) When a case is transferred under the provisions of this Code from one Judge to another Judge or from one Magistrate to another Magistrate, the former shall be deemed to cease to exercise jurisdiction therein, and to be succeeded by the latter, within the meaning of sub-section (1).
(3) Nothing in this section applies to summary trials or to cases in which proceedings have been stayed under section 322 or in which proceedings have been submitted to a superior Magistrate under section 325."
Learned counsel for the revisionist has cited a case i.e. Panjab Singh and others versus State of Uttar Pradesh reported in 1983 (2) Allahabad Criminal Cases, page 37. The scope of Section 407 and 326 of the Code of Criminal Procedure has been dealt with in the present case. In this case the question for decision was that "whether a Sessions Trial commenced by an Additional Sessions Judge who continues to be Additional Sessions Judge in the same Sessions division but whose designation has changed, should be concluded by him or by another Additional Sessions Judge who has been conferred the designation earlier possessed by the Additional Sessions Judge who had commenced the trial".
In the aforesaid case it has been held that it is the right of an accused that his case should be decided by a Judge who has heard and recorded the evidence. Thus, unless the jurisdiction of the Judge to continue the trial is taken away expressly or by necessary implication either under a statutory provision or an order passed to that effect by a competent authority, the Judge shall continue to exercise the jurisdiction to continue a part-heard trial, and he would not be deemed to have been divested of it merely because a change has taken place in his designation. If this be not the true rule, successive changes in the designation of Additional Sessions Judges would result in successive change of hands in the trial of part heard cases, which does not seem to be the intention of the legislature behind the provisions of Section 326.
So far as the jurisdiction of District and Sessions Judge to transfer a case from one Additional Sessions Judge to another Additional Sessions Judge is concerned, that has also been discussed by the Division Bench of this court in the aforesaid case, but slightly, as it was not the issue for decision. On the aforesaid point the court has expressed its opinion as under:-
"On the question of the powers of the Sessions Judge to transfer a case from one Additional Sessions Judge to another Additional Sessions Judge, it was canvassed by Sri Keshav Sahai, learned counsel for one of the petitioners, that words 'criminal Court' in Section 408 did not include an Additional Sessions Judge, and hence this provision did not apply to an Additional Sessions Judge. IN the reference made in State of U.P. Versus Gyan Chand and others (4) and State versus Gyan Chand (5) it was held by the Division Bench by the order dated 17.9.1974 that the Additional Sessions Judge was a criminal Court, and was covered by the provisions of Section 408. But a Sessions Judge, under that section had no power to transfer a part-heard sessions trial from one Additional Sessions Judge to another. As at present advised, we are in respectful agreement with this view. But since that question is not involved in the instant cases, we refrain from discussing that question and giving an opinion therein."
It is not in dispute that the present case was not a part heard with the earlier court, therefore, in light of the opinion as expressed above by the Division Bench of this court, it is always open to the District and Sessions Judge to transfer the case from one Additional District and Sessions Judge to another Additional District and Sessions Judge, therefore, I am of the view that the order impugned passed by the transferee Judge, does not suffer from jurisdiction and further it is observed that the court is competent enough to proceed with the trial.
With the aforesaid view the petition is dismissed.
Order Dated:10.3.2011 Banswar