Jitendra Singh vs State Of U.P. & 3 Others
2016 Latest Caselaw 2204 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 

 
Court No. - 27
 

 
Case :- TRANSFER APPLICATION (CRIMINAL) No. - 154 of 2016
 

 
Applicant :- Jitendra Singh
 
Opposite Party :- State Of U.P. & 3 Others
 
Counsel for Applicant :- Sunil Vashisth
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Mrs. Ranjana Pandya,J.

1. Heard learned counsel for the applicant and learned Additional Government Advocate for the State-respondent.

2. By means of this transfer application, the applicant has prayed that Sessions Trial No. 385 of 2011 (State vs Gajendra and others) under sections 307, 504 IPC, Police Station Ramala, District Baghpat pending in the court of Fast Track Court-II, Baghpat be transferred to the court of Additional Sessions Judge-I, Baghpat.

3. It has been submitted on behalf of the applicant that about 47 dates for arguments were fixed by the court of Ist Additional Sessions Judge, Baghpat, but the accused persons for one reason or other sought time.

4. I fail to understand why the case was kept pending by the court concerned from 26.2.2014 till 1.4.2016 i.e. for more than two years just for hearing arguments and how could the accused manage to get dates continuously for two years just for arguing the matter. This reflects the in-activeness of the Additional Sessions Judge, Court No. 1, Baghpat in dealing with the matter.

5. It has also been submitted that this was a case, which was pending for arguments before the Additional Sessions Judge, Court No. 1, Baghpat, but the Sessions Judge in this case passed administrative orders and transferred the case to the court of Fast Track Court-II, Baghpat. No reason was assigned for transferring the case as has been envisaged under section 412 Cr.P.C. and on this ground, the administrative order also is bad and the matter should be transferred back to the court of Additional Sessions Judge-I, Baghpat, who should decide the case.

6. I do not think, the administrative order could be challenged before this Court. However, I think, this ground in itself is sufficient for the District Judge to transfer the case from the court because 47 dates were given for arguments and ten dates were given for the defence from 10.10.2013 to 12.2.2014.

7. Learned counsel for the applicant has placed reliance in the case of Malik Ram and others vs State of U.P., 1984 (21) ACC 332, wherein it has been decided that if the Additional Sessions Judge, who has heard the case in part, remains in the same district, he should hear and decide the part heard case and section 407 Cr.P.C. could not be invoked by the High Court in such cases, but in the case of Radhey Shyam Agarwal vs State of U.P., 1984 (21) ACC 240, it has been laid down that the Sessions Judge is empowered under section 408 Cr.P.C. to transfer a part heard case from the court of Additional Sessions Judge to another competent court within his sessions division if it is expedient in the interest of justice and the limitations imposed under section 409(2) Cr.P.C. are not applicable in exercise of powers of transfer conferred under section 408 Cr.P.C.

8. Thus, the powers of the Sessions Judge to transfer a part heard case from one Judge to another does not confer by virtue of any provisions of Code of Criminal Procedure. By no stretch of imagination, it can be said that the Sessions Judge has no power to transfer a part heard case. The word "trial" is not defined in the Code of Criminal Procedure, but trial would suppose 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).

9. The limitations imposed under section 409(2) of the Code are applicable in exercise of power of transfer conferred under section 408 of the Code, which is thus independent judicial power, which is not subject to the bar imposed by 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.

10. In 2015 (89) ACC 723, Anil Kumar Agarwal vs State of U.P. and another, it has been observed that under section 326 Cr.P.C. conviction of commitment can be done on evidence partly recorded by one Magistrate and partly by another.

11. Section 326 Cr.P.C. reads as follow:

"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."

12. Learned counsel for the applicant has submitted that the learned Ist Additional Sessions Judge must have observed the demeanor of the witnesses, hence he would be in a better position to decide the matter.

13. I think, the demeanor of a witness cannot be kept in the mind by a Judge, but it has to be noted on the statement itself, which can very well be looked into by the Judge presently trying the trial. Under section 326 Cr.P.C., the succeeding Judge can act on the evidence recorded by his predecessor either in whole or in part.

14. The sole ground in the transfer application is that the case was part heard by the Ist Additional Sessions Judge.

15. Learned Additional Government Advocate while opposing the transfer application has stated that judicial discipline demands that for a fair trial of the case, the party cannot be permitted to pick and choose the court of his choice.

16. I have no hesitation in stating that the Ist Additional Sessions Judge, Baghpat kept the case unnecessarily pending for years. Hence, the Sessions Judge in his wisdom was perfectly justified in transferring the case from his court to the court of Fast Track Court-II, Baghpat. The Fast Track Court in the State and even in country are expected to dispose of case very expeditiously. This is a ripe case and it is expected that the court concerned shall dispose of this case on the date fixed without granting any unnecessary adjournments to either of the parties.

17. Thus, the transfer application has no force and is liable to be rejected.

18. Accordingly, the present transfer application is rejected.

19. However, it is directed that the present presiding officer shall decide the aforesaid sessions trial on the date fixed.

Order Date :- 4.5.2016

Sazia