Indian Music Industry (Imi) vs State And Anr.
2006 Latest Caselaw 2217 Del

JUDGMENT

Badar Durrez Ahmed, J.

Page 3928

1. This revision petition is directed against the order dated 16.11.2006 passed by the learned Sessions Judge whereby the Criminal Appeal titled as Indian Music Industry v. State etc was withdrawn from the court of Ms Ravinder Kaur, Additional Sessions Judge, New Delhi (hereinafter referred to as Judge "A") and "transferred" to the court of Shri S.P. Garg, Additional Sessions Judge, New Delhi for disposal in accordance with law.

2. The learned Counsel for the petitioner has raised several points of law. He submits that this order passed by the learned Additional Sessions Judge is not in accordance with the provisions of either Section 408 or 409 of the Code of Criminal Procedure, 1973 which empowers the Sessions Judge to transfer and withdraw/recall cases and or appeals pending before the subordinate courts in the same district.

3. Before the questions that arise in this matter are formulated, it would be appropriate if the genesis of this order is set out. The said appeal was being heard by Judge "A" on 1.11.2006 which was directed to be put up for arguments on 3.11.2006. On that date, part arguments were heard and it was directed that the appeal be put up for further arguments on 7.11.2006. On 7.11.2006, further arguments were heard and Judge "A" directed that the matter be put up on 13.11.2006 at 4.00 p.m. for orders. The position as it obtained on that date was that the arguments in the appeal had concluded and the matter had been reserved for orders.

4. The printed cause list, in respect of the court of Judge "A" for 13.11.2006 showed the appeal at item No. 24 under the heading "order/judgment". It is, therefore, clear that on 13.11.2006, the order/judgment was to be pronounced by Judge "A". However, before that could be done, an application which was hurriedly written in hand was placed before the court by the respondent through one Mr Deepak Malhotra, who is the director of respondent No. 2. The application consisted of two paragraphs and it would be pertinent to set out the same:

Application praying keeping the proceedings in abeyance, respondents pray for transfer of proceedings.

Hon'ble Madam,

1. That the above matter is fixed today for proper orders and further proceedings.

2. That the respondents pray that the matter may please not be decided today and order the transfer to some other court.

Prayed accordingly.

Respondents

(M/s Rhythem Music)

Through : sd/-

Dt.13.11.2006. (Deepak Malhotra)

A reading of the application clearly indicates that no reasons whatsoever were given in the same for seeking transfer of the appeal to some other court. The Page 3929 request was an unusual one requiring Judge "A" not to decide the matter on that date and to pass an order transferring the appeal to some other court. It is also noteworthy that this application was not supported by any affidavit.

5. On receipt of this application, Judge "A" passed the following order on 13.11.2006 itself:

An application has been moved on behalf of respondent No. 2, for transfer of the matter. Parties are directed to appear before Sh K.C. Lohia, Judge in charge, Patiala House Courts, New Delhi, today itself at 3.00 p.m. for necessary orders.

Thereafter, the matter was placed before the Judge-in-charge who, in turn, on 13.11.2006 itself passed the following order:

This case file has been received from the court of Ms Ravinder Kaur, ASJ, New Delhi with the request that the case file may be transferred to some other court as some application has been moved on behalf of respondent No. 2 for transferring the matter.

Shri Manoj Taneja has submitted that he is filing a reply to the application filed by respondent No. 2 for transfer of the case file. Copy has been given to Sh S.C. Puri, Advocate.

It is also submitted that this matter may be placed before Learned Sessions Judge, Delhi for appropriate directions in the matter as such the case file be sent to the Ld. Sessions Judge and both the parties are directed to appear before the Ld. Sessions Judge on 16.11.2006 at 2.00 P.M. for further directions in the matter.

6. This was followed by the impugned order which was passed by the learned Sessions Judge on 16.11.2006 in the following manner:

Indian Music industry v. State etc.

Pr.: Shri Manoj Taneja, Adv, Along with Shri Pragyan Sharma and Shri Neeraj Chaudhary, Advocate for the appellant.

Shri Deepak Malhotra, representative of Respondent.

Brief written submissions have been filed by the Ld. Counsel for the appellant.

Perused the order dated 13.11.2006 passed by the Learned ASJ Ms. Ravinder Kaur, as well as the report dated 13.11.2006 made by learned Judge, in charge, Patiala House Court, New Delhi.

In view of the order made by Ld. ASJ and the report of Ld. Judge in charge, Patiala House Courts, New Delhi, the criminal appeal titled as Indian Music Industry v. State etc. is withdrawn from the court of Ms. Ravinder Kaur, ASJ, New Delhi and transferred to the court of Shri S.P. Garg, ASJ, New Delhi, for disposal in accordance with law.

Parties to appear before the transferee court on 17.11.2006 at 2 P.M.

It appears that thereafter the matter has been placed before the transferee court on 17.11.2006 and the said court, in turn, adjourned the matter for arguments on 14.12.2006. This is where the matter rests today.

7. In the context of these orders, the learned Counsel for the petitioner essentially made three submissions with regard to the illegality of the Page 3930 impugned order. He submitted that first of all the application filed on behalf of the respondent for transfer of the appeal was not supported by any affidavit and this was in violation of the provisions of Section 408(3) of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code) read with Section 407(3) which mandates that such an application should be supported by an affidavit. The second point urged on behalf of the petitioner was that the provisions of Section 408(3) read with Section 407(5) of the Code was also given a go-by as no notice of hearing of the application was given to the public prosecutor. This would be apparent from the absence of the public prosecutor on the date on which the impugned order dated 16.11.2006 was passed. The third and most formidable point urged by the learned Counsel for the petitioner was that the requirements of Section 412 of the Code were given a complete go-by inasmuch as no reasons whatsoever have been given in the impugned order which ultimately decided the said application.

8. As against this, Mr I.U. Khan, the learned Senior counsel appearing on behalf of the respondent No. 2, submitted that this was a matter where Judge "A" on being presented with the application thought it fit not to hear the matter any further and, therefore, passed the order dated 13.11.2006 requiring the same to be placed before the Judge-In-charge for assignment. Then, he submitted, the Judge-In-charge, in turn, thought it proper to place it before the Sessions Judge for assignment to a proper court and the Sessions judge, faced with such a situation where Judge "A" was not willing to hear the matter, directed the withdrawal of the appeal from her court and further directed that the same be heard by the transferee court. So, according to Mr Khan, there is no illegality or impropriety in the order passed by the learned Sessions Judge. He submits that such events happen virtually everyday in courts when one Judge or the other declines hearing of a particular matter and the same is then place before the Judge-In-charge or the Sessions Judge for assignment to another court having jurisdiction.

9. Mr Khan further submitted that it is also not a case where the public prosecutor had no notice of the application. According to him, this would be clear from the order dated 13.11.2006 passed by the learned Judge -In-charge wherein the learned APP's presence was noted and on that date itself the parties were directed to appear before the learned Sessions Judge on 16.11.2006. So, according to Mr Khan, there is no violation of the provisions of Section 407(5) of the Code. However, Mr Khan could not controvert the fact that the application filed on behalf of the respondent No. 2 was not supported by an affidavit. But, according to him, no such affidavit was necessary because Judge "A" had decided not to hear the matter and sent it to the Judge-In-charge for assignment to an other court. In the same vein, Mr Khan submitted that, since this was the circumstance, there was no necessity for providing any reasons and, therefore, there was no violation of Section 412 of the Code. Mr Khan submitted that, in any event, reasons have been given by the learned Sessions Judge because in the impugned order itself, it is noted that the order dated 13.11.2006 passed by Judge "A" was perused so also the "report" dated 13.11.2006 made by the learned Judge-In-charge. Mr Khan further pointed out that the Page 3931 direction of withdrawal and transfer was passed in view of the order made by Judge "A" as well as the "report" of the learned Judge-In-charge. So, the impugned order is not an order having been passed without any reasons.

10. Mr Pawan Sharma, who appeared on behalf of the State, submitted that the impugned order has been passed contrary to the provisions of the Code. He supported the arguments advanced by the learned Counsel for the petitioner that the application was not supported by any affidavit and that, in itself, was fatal. He further submitted that no reasons whatsoever were given in the order of the withdrawal and consequent transfer and as such the provisions of Section 412 of the Code have been violated. Mr Sharma submitted that no notice, as required under Section 407(5) read with Section 408(3) of the Code, was given by the respondent No. 2 to the public prosecutor in writing. He further submitted that the direction contained in the order of the Judge in charge dated 13.11.2006 was a direction to both the parties to appear before the Sessions Judge and it was not a direction issued to the public prosecutor.

11. Having heard the arguments advanced by the counsel for the parties, I am of the view that the application for transfer moved by the respondent No. 2 did not contain any reasons for seeking such transfer. It is clear that the said application was not supported by an affidavit and, therefore, the mandatory requirement of Section 408(3) read with Section 407(3) of the Code was not complied with. Non-compliance of such a requirement has been held by the Supreme Court in the case of Vijay Pal and Ors. v. State of Haryana and Anr. (1999) 9 SCC 67 to be fatal. This would be apparent from the following observation in the said decision:

The learned Judge should not have entertained it as an application made under Section 407 CrPC when it was not presented in the prescribed manner and was not supported by an affidavit.

12. I am not in agreement with the submissions made by Mr Khan that the first order passed by Judge "A" on 13.11.2006 amounted to an order of recusal. An application had been made albeit without any supporting affidavit, and Judge "A" in her wisdom thought it proper to send the said application before the Judge-In-charge for orders. There were three options available to her on the making of such an application. The first option would have been to have rejected the application outright. The second being that she could have accepted the application and recused herself from the case and the third being that she could have placed this application before the Judge-In-charge. I am unable to agree with Mr Khan that the order passed on 13.11.2006 by Judge "A" was an order of the second kind. In my view, the order was of the third kind where Judge "A" had merely placed the application for orders before the Judge-In-charge, who, in turn, by passing the order dated 13.11.2006 had not expressed any opinion at all nor had he made any "report". He merely forwarded the application to the Sessions Judge for orders. The Sessions Judge on receipt of the application did nothing except to treat the order dated 13.11.2006 passed by Page 3932 the Judge "A" and the Judge-In-charge as a request/report of transfer when there was no such request or report. When the application was placed before the learned Sessions Judge, it was for him to have exercised his powers under Section 408 and decided the matter on merits. Unfortunately, I find that the learned Sessions Judge did not exercise that power and, merely, on the presumption that there was a "report", passed the order of withdrawal and transferred the case to the transferee court.

13. It must be pointed out that the provisions of Section 409 of the Code have no application in the present case. This is so because Section 409(1) of the Code only refers to cases or appeals pending before Assistant Sessions Judges or Chief Judicial Magistrates. Such cases or appeals can be withdrawn or recalled under Section 409(1) of the Code. This sub-section has no reference to an appeal pending before an Additional Sessions Judge. Therefore, it has no reference to the appeal which was pending before Judge "A". Insofar as Sub-section (2) of Section 409 of the Code is concerned, that would also have no applicability in the present case because, although it applies to appeals before Additional Sessions Judges, it applies to a stage before the trial of the case or hearing of the appeal has commenced. In the admitted facts of this case, the hearing of the appeal had not only commenced, but had concluded. Therefore, Sub-section (2) of Section 409 would have no application. Consequently, Sub-section (3) of Section 409 of the Code would have also no application. Clearly, the matter had to be dealt with by the learned Sessions Judge in exercise of his powers under Section 408. Sub-section (3) of Section 408 of the Code makes the provisions of Sub-sections (3), (4), (5), (6), (7) and (9) of Section 407 applicable 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 of the Code. Admittedly, Section 407(3) has not been complied with as the application was not supported by an affidavit. Therefore, the learned Additional Sessions Judge ought not to have entertained the application at all in view of the dictum of the Supreme Court in the case of Vijay Pal (supra). The question of whether the notice was given to the public prosecutor under Sub-section (5) of Section 407 read with Section 408(3) of the Code is debatable one. Fortunately, I need not decide this issue inasmuch the application itself was defective for want of a supporting affidavit.

14. Furthermore, what is truly fatal to the impugned order is the fact that the Sessions Judge has not recorded any reasons for making the order of withdrawal and transfer. Section 412 of the Code reads as under:

412. Reasons to be recorded. - A Sessions Judge or Magistrate making an order under Section 408, Section 409, Section 410 or Section 411 shall record his reasons for making it.

I am unable to agree with the submission of Mr Khan that mere reference to the orders of Judge "A" and the Judge-In-charge indicate that reasons were recorded in the impugned order. I see no reasons recorded in the impugned order. In any event, neither the Judge "A" nor the Judge-In-charge expressed Page 3933 any opinion on the matter. So, there was also no question of the learned Sessions Judge having concurred with any such presumed expression of opinion by Judge "A" or the Judge-In-charge.

15. Lastly, I also do not agree with the submission made by Mr Khan that the order dated 13.11.2006 passed by Judge "A" amounted to an order of recusal. There is no such clear indication given in the order itself. If the learned Judge wanted to recuse herself, she would have stated so in clear terms. That she has not done. And, no inference can be drawn with regard to the alleged recusal on the part of Judge "A".

16. In view of the foregoing, the impugned order is set aside. It is open to the respondent No. 2 to move an appropriate application supported by an affidavit before the Sessions Judge, if the respondent No. 2 still feels aggrieved. It will be disposed of by the learned Sessions Judge in accordance with law.

The matter now be placed before Judge "A".