HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved Court No. - 27 Case :- TRANSFER APPLICATION (CRIMINAL) No. - 476 of 2015 Applicant :- Mohd. Umar @ Nazam And Others Opposite Party :- The State Of U.P. And Another Counsel for Applicant :- Sanjay Vikram Singh Counsel for Opposite Party :- Govt. Advocate, Bhuwan Raj Hon'ble Mrs. Ranjana Pandya, J.
1. Heard Shri Sanjay Vikram Singh, learned counsel for the applicants and Shri Bhuwan Raj, learned counsel for the opposite party No. 2.
2. By means of this transfer application, the applicants have prayed that Sessions Trial No. 274 of 2007, under section 302 IPC, Sessions Trial No. 271 of 2007, under section 25 Arms Act, Sessions Trial No. 272 of 2007, under section 25 Arms Act and Sessions Trial No. 273 of 2007, under section 25 Arms Act pending before the Additional Sessions Judge, Court No. 15, Allahabad be transferred to Special Judge (E.C.) Act Shri Mahtab Ahmad.
3. Learned counsel for the applicants have contended that it was not within the power of Sessions Judge to transfer the case from the court of one Additional Sessions Judge to the court of another Additional Sessions Judge as the powers of Sessions Judge are at par with the powers of Additional Sessions Judge.
4. He has further submitted that according to the provision of Sections 408 and 409 Cr.P.C., the Sessions Judge could not have transferred a part heard case partly heard by Additional Sessions Judge, Shri Mahtab Ahmad, previously presiding over court No. 2.
5. Section 408 Cr.P.C. reads as follows:
"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-sections (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."
6. Section 409 Cr.P.C. reads as follows:
"409. Withdrawal of cases and appeals by Sessions Judges.-
(1) A Sessions Judge may withdraw any case or appeal from, or recall any case or appeal which he has made over to, any Assistant Sessions Judge or Chief Judicial Magistrate subordinate to him.
(2) At any time before the trial of the case or the hearing of the appeal has commenced before the Additional Sessions Judge, as Sessions Judge may recall any case or appeal which he has made over to any Additional Sessions Judge.
(3) Where a Sessions Judge withdraws or recalls a case or appeal under sub-section(1) or sub-section (2) he may either try the case in his own Court or hear the appeal himself, or make it over in accordance with the provisions of this Code to another Court for trial or hearing, as the case may be."
7. A perusal of the record shows that as per order-sheet, on 11.02.2015 arguments were heard in part and 13.02.2015 was fixed, on which date again part arguments were heard and the accused persons were ordered to submit two bail bonds and personal bonds to the tune of Rs. 50,000/- each in compliance under the provisions of Section 437-A Cr.P.C. till the date fixed and 19.02.2015 was fixed.
8. Perusal of the record also shows that the aforementioned Sessions Trial was recalled, which are pending before the Additional Sessions Judge, Court No. 15, Allahabad on administrative grounds.
9. Grievance of the applicants is that the learned Sessions Judge did not record any reasons for transferring the particular case from the court of Shri Mahtab Ahmad to the court of Ms. Rashmi Nanda.
10. In this regard, learned counsel for the opposite party No. 2 has placed reliance on a Full Bench judgment of Hon'ble the Apex Court in Criminal Misc. (Transfer) Application No. 10069 of 1983, Radhey Shyam and another vs State of U.P., in which the Apex Court has observed as follows:
"6. Thus all Additional Sessions Judges in a sessions division are separate Criminal Courts for the purposes of the proviso to sub-section (2) of Section 407 Cr.P.C. and Section 408(1), Cr.P.C. although they exercise jurisdiction in the same court of Session."
11. The Hon'ble Apex Court has further observed as follows:
"14.- It is noteworthy that in view of Section 194 Cr.P.C. an Additional Sessions Judge is empowered to try only such cases as the Sessions Judge of the division by general or special order makes over to him for trial and in view of Section 381 (2) Cr.P.C. an Additional Sessions Judge is empowered to hear only such appeals as the Sessions Judge of the division may by general or special order make over to him. The making over of a case for trial or an appeal for hearing to an Additional Sessions Judge by the Sessions Judge is connected with the distribution of business which is purely administrative. It, therefore, follows that the power conferred on the Sessions Judge under Section 409 (2) Cr.P.C. to recall any case or appeal which he has made over to any Additional Sessions Judge before the trial of the case or hearing of the appeal has commenced, is also purely administrative as it must also be connection with the distribution of business. It is true that the Sessions Judge is barred by Section 409(2) Cr.P.C. to recall a case or appeal from an Additional Sessions Judge after the trial of the case or the hearing of the appeal has commenced, but from this it cannot be inferred that the power conferred on the Sessions Judge to recall a case or an appeal from an Additional Sessions Judge before the trial of the case or the hearing of the appeal has commenced is not administrative. It appears that this bar has been imposed on the Sessions Judge by the legislature as it may have thought that it would not be proper to confer administrative power on the Sessions Judge to recall a case or an appeal from an Additional Sessions Judge after the trial of the case or the hearing of the appeal has commenced, as an Additional Sessions Judge exercises jurisdiction in the same Court of Session in which the Sessions Judge exercises jurisdiction and is thus not subordinate to him. Once the trial of a case or hearing of an appeal commences before an Additional Sessions Judge it is only proper that it is concluded before him and is not transferred by the Sessions Judge in connection with distribution of business. It is noteworthy that the Sessions Judge is empowered under Section 409(1) Cr.P.C. to withdraw any case or appeal from or recall any case or appeal which he has made over to any Assistant Sessions Judge or the Chief Judicial Magistrate subordinate to him irrespective of the fact whether the trial of the case or hearing of the appeal has commenced or not. The bar imposed on a Sessions Judge to recall a case or an appeal which he has made over to an Additional Sessions Judge after the trial of the case or the hearing of the appeal has commenced is thus a bar on the administrative power of the Sessions Judge to recall a case or an appeal from an Additional Sessions Judge in connection with the distribution of business."
12. Thus, from what has been settled by the Apex Court, powers of the Sessions Judge to transfer a part heard case from one Judge to another does not cease by virtue of any of the provisions of Cr.P.C. By stretch of imagination, it can be said that the Sessions Judge has no power to transfer the part heard case. The word "trial" is not defined in the Code of Criminal Procedure, but trial would impose as the proceedings taken in the court after charges have been drawn up including the punishment of the offender. Although, in the 1973 Code, the word "inquiry" has been defined under section 2(g). Chapter XVIII deals with the trial before Court of Sessions.
13. Reliance has also been placed on section 232 Cr.P.C., which reads as follows:
"232. Acquittal.- If after taking the evidence for the prosecution, examining the accused and hearing the prosecution and the defence on the point, the Judge considers that there is no evidence that the accused committed the offence, the judge shall record an order of acquittal."
14. But the provisions of section 232 Cr.P.C. have not yet come into play since the order of acquittal was not pronounced by the trial Judge.
15. The limitation imposed under section 409 (2) of the Code are applicable in exercise of powers of transfer conferred under section 408 of the Code, which is thus independent judicial power, which is not subject to the bar imposed by section 409 (2) Cr.P.C. on the administrative ground while exercising administrative powers by the Sessions Judge of recalling the sessions trial after the trial of the case has commenced.
16. Both the learned counsel for the parties have placed reliance upon the case of Radhey Shyam (supra) referring to the case of Anil Kumar Agarwal vs State of U.P. and others, 2015 (89) ACC 723, it has been submitted that under section 326 Cr.P.C. conviction or commitment can be done on evidence partly recorded by one Magistrate and partly by another.
17. Section 326 Cr.P.C. reads as under:
"326. Conviction or commitment on evidence partly recorded by one Magistrate and partly by another.-
(1) Whenever any 1[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 1[Judge or Magistrate] who has and who exercises such jurisdiction, the 1[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 1[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 2[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."
18. Learned counsel for the applicants has further contended that it is necessary that Shri Mahtab Ahmad should conclude the trial, inasmuch as he was the Judge in whose presence statements were recorded and he is the Judge, who could have seen and observed the demeanor of the witnesses.
19. I think, the observation about the demeanor of a witness cannot be kept in mind by a Judge, but it is to be noted on the statement itself, which can very well looked into by the succeeding Judge. Under section 326 Cr.P.C., the succeeding Judge can act on the evidence recorded by his predecessor either in whole or in part.
20. The sole ground in the transfer application is that the case was part heard by Shri Mahtab Ahmad, hence it be re-transferred to his court.
21. Learned counsel for the opposite party No. 2 while opposing the transfer application has stated that judicial discipline demands fair trial and the case cannot be permitted to pick and choose the court of his choice. He has further submitted that Shri Mahatab Ahmad had practically opened his mind that he was about acquit the accused, therefore, he directed for filing of bail bonds by the accused in compliance of section 437-A Cr.P.C.
22. Section 437-A Cr.P.C. reads as follows:
"437A. Bail to require accused to appear before next appellate Court.-
(1) Before conclusion of the trial and before disposal of the appeal, the Court trying the offence or the Appellate Court, as the case may be, shall require the accused to execute bail bonds with sureties, to appear before the higher Court as and when such Court issues notice in respect of any appeal or petition filed against the judgment of the respective Court and such bail bonds shall be in force for six months.
(2) If such accused fails to appear, the bond stand forfeited and the procedure under section 446 shall apply.''
23. The Law Commission of India in its 154th report on Cr.P.C. has laid down the several features on the attendance of the accused at the appellate stage. It has been specified that since the Code of Criminal Procedure, 1973 was silent on the point of securing attendance of the accused at a later stage after the acquittal in cases where appeals against acquittals have been filed or in cases where appeals for enhancement of sentence are filed. There are many instances where the appellate courts having admitted an appeal against acquittal are not in a position to secure presence of acquitted accused. Even though non-bailable warrants are issued the police agency has been unable to serve the notices as well as the non-bailable warrants on the respondents accused in spite of lapse of long time. Some time they are returned saying that the police have no information whatsoever regarding the respondents or their whereabouts. A large number of such appeals after admission have been pending in various appellate courts including the Supreme Court without being disposed of since the service could not be effected or where the presence of acquitted accused could not be secured in spite of issuance of non-bailable warrants. Number of such matters for want of service are piling up and have added to the pendency.
24. On a plain reading of Section 437-A Cr.P.C., it is clear that provisions of Section 437-A Cr.P.C. come into picture before conclusion of the trial and before disposal of the appeal, which requires the accused to execute bail bonds with sureties and undertaking to appear before the higher court when required to do so. Thus, it is clear that section 437-A Cr.P.C. was not introduced to allow the accused to be released prior to the judgment in order to enable the accused to do pairavi for filing appeal before the High Court, but in order to securing his presence before the appellate court by a drawing forfeiture of the bail bonds and his sureties and penalty and punishment under the provisions of Section 446 Cr.P.C.
25. The picture which emerges out from the aforesaid provisions is very clear that only in case the accused is being acquitted, he shall be required to furnish bail bonds under section 437-A Cr.P.C.
26. Thus, in case the accused is acquitted, I do not think the provisions of section 437-A Cr.P.C. shall apply. The amendment of section 437-A Cr.P.C. came into force on 21.12.2009.
27. The trial court before the arguments could be concluded vide order dated 13.02.2015 directed the accused to file bail bonds as per provisions of section 437-A Cr.P.C., thereby clearly opening his mind about acquitting the accused. Undoubtedly, if the matter would have been intended into end in conviction, such an order would not have been passed. Judicial propriety demands that it would not have been proper for the trial Judge to open his mind even before conclusion of the arguments that he would acquit the accused.
28. Perusal of the order dated 13.02.2015 makes it abundantly clear that the then Presiding Officer Shri Mahtab Ahmad had made his mind to acquit the accused persons, even before conclusion of the arguments. It appears that Shri Mahtab Ahmad acted in a very hurried manner in passing the orders. I have no doubt that if this order would have been passed at the time of passing of the judgment, there was no grievance for any of the purpose except as provided under law to approach the higher court, but to give out his mind by the Presiding Officer before he is passing any verdict would shake the confidence of the public in the judiciary.
29. The Sessions Judge in his wisdom transferred the case from the court of Shri Mahtab Ahmad to the court of Ms. Rashmi Nanda, which is fully justified and which circumstances of this case actually warranted.
30. The transfer application has no force.
31. Accordingly, the present transfer application is rejected.
32. The present Presiding Officer is directed to decide the aforesaid Sessions Trials as early as possible.
Order Date :- 15.12.2015 Sazia