CRM-M-21377-2011 (O&M) [ 1 ] :::::::::: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRM-M-21377-2011 (O&M) Date of decision: 23.12.2011 Amarbir Singh ...Petitioner Versus State of Punjab ...Respondent CORAM: HON’BLE MR. JUSTICE RAKESH KUMAR JAIN Present: Mr. Harpreet S. Rakhra, Advocate, for the petitioner. Mr. A.S.Rai, DAG, Punjab. ***** RAKESH KUMAR JAIN, J. The petitioner has questioned the legality of order dated 24.05.2011 passed by the learned Sessions Judge, Bathinda by which he had transferred the case registered vide FIR No.15 dated 13.04.2010, under Sections 302, 307 & 34 IPC and 25/27/54/59 of the Arms Act, 1959 at Police Station Phul, District Bathinda titled as `State Vs. Amarvir Singh' and cross case lodged vide DDR No.18 dated 13.04.2010, under Sections 307, 452, 148, 149 IPC and 25/54/59 of the Arms Act, 1959 at Police Station Phul, District Bathinda titled as `State Vs. Harbans Singh' from the Court of Shri Sukhdev Singh, Additional Sessions Judge, Bathinda to the Court of Shri D.S.Johal, Additional Sessions Judge, Bathinda during the pendency of the trial contrary to Section 409(2) of the Code of Criminal Procedure, 1973 [for short “Cr.P.C.”] and the administrative instructions of this Court (Annexure P-12). Admittedly, the aforesaid cases were pending in the Court of Shri S.K.Sachdeva, Additional Sessions Judge (Fast Track Court), CRM-M-21377-2011 (O&M) [ 2 ] :::::::::: Bathinda but on withdrawal of the said Court, the aforesaid cases were transferred to the Court of Shri Sukhdev Singh, Additional Sessions Judge, Bathinda vide order dated 03.04.2011 from where it has now been transferred to the Court of Shri D.S.Johal, Additional Sessions Judge, Bathinda. Learned counsel for the petitioner has submitted that the challan was presented on 19.07.2010 and the charge was framed on 27.09.2010, whereas the aforesaid cases were assigned to the Court of Shri Sukhdev Singh, Additional Sessions Judge, Bathinda on 03.04.2011 on withdrawal of the Court of Shri S.K.Sachdeva, Additional Sessions Judge (Fast Track Court), Bathinda and have been further transferred to the Court of Shri D.S.Johal, Additional Sessions Judge, Bathinda on 24.05.2011. He has submitted that the learned Sessions Judge had no jurisdiction to transfer the case to any other Additional Sessions Judge after the commencement of the trial in view of Section 409(2) of the Cr.P.C. and since Shri D.S.Johal, Additional Sessions Judge, Bathinda was not having two years' experience at the relevant time, therefore, in terms of the letter No.12201-Gaz.II(2)/IX.C.18 dated 11.04.2008 (Annexure P-12), the trial of the case registered under Section 302 IPC could not have been assigned to him. At the first instance, this Court had found it appropriate to seek comments of the learned Sessions Judge, Bathinda in respect of both the aforesaid assertions made by learned counsel for the petitioner. Learned Sessions Judge, Bathinda had sent his comments vide his letter dated 03.08.2011 in which he has averred that both the cases were pending in the Court of Shri S.K.Sachdeva, Additional Sessions Judge (Fast Track Court), Bathinda, but on the withdrawal of the said Court, these cases were transferred to the Court of Shri Sukhdev Singh, Additional Sessions Judge, Bathinda vide order dated 03.04.2011 and after the creation of the Court of Shri D.S.Johal, Additional Sessions Judge, Bathinda, these cases were assigned to him on the administrative ground vide order dated 24.05.2011 in order to provide him work. It is also averred that Shri D.S.Johal had apprised him that while posted as Additional Sessions Judge (Fast Track Court), Patiala, he was trying the cases under Section 302 IPC also and by now Shri D.S.Johal has completed two years' of experience as Additional Sessions Judge. CRM-M-21377-2011 (O&M) [ 3 ] :::::::::: As per the aforesaid admitted facts, the trial of this case was before the Court of Shri S.K.Sachdeva, Additional Sessions Judge (Fast Track Court), Bathinda whose Court was withdrawn and both the cases were transferred to the Court of Shri Sukhdev Singh, Additional Sessions Judge, Bathinda on 03.04.2011 from whom the cases were withdrawn and assigned to the Court of Shri D.S.Johal, Additional Sessions Judge, Bathinda on 24.05.2011. Admittedly, the charge was framed on 27.09.2010. It is well settled that the trial of a Sessions case commences with the framing of the charge. The questions that arise in this case are as to “i) whether the Sessions Judge had the jurisdiction to transfer the case from the Court of Shri Sukhdev Singh, Additional Sessions Judge, Bathinda to the Court of Shri D.S.Johal, Additional Sessions Judge, Bathinda after the commencement of trial, on the administrative ground in order to provide him work” and “ii) whether the Sessions Judge had the jurisdiction to transfer the case from the court of Shri S.K.Sachdeva, Additional Sessions Judge (Fast Track Court), Bathinda to the Court of Shri Sukhdev Singh, Additional Sessions Judge, Bathinda consequent upon the withdrawal of the said Court”. Learned counsel for the petitioner has relied upon a Division Bench judgment of the Madhya Pradesh High Court in the case of In Re: by Distt. & Sessions Judge, Raisen – Petitioner, 2005(3) R.C.R. (Criminal) 779, in which the following two questions were framed: “(i) Whether the power under sub-section (1) of Section 408 can be exercised by the Sessions Judge to transfer a case from one Additional Sessions Judge to another Additional Sessions Judge in his sessions division, even if the trial has commenced? (ii) Whether sub-section (2) of Section 409 bars a Sessions Judge from recalling any case which he had made over to an Additional Sessions Judge, where the trial has commenced, even in the event of transfer, CRM-M-21377-2011 (O&M) [ 4 ] :::::::::: retirement or death of such Additional Sessions Judge?” The aforesaid questions were answered by the Division Bench as under: “(a) A Sessions Judge in exercise of judicial power under section 408 of the Code may transfer any case pending before any criminal Court in his Sessions Division to any other Criminal Court in his Sessions Division. That would mean that he can transfer even those cases where the trial has commenced from one Additional Sessions Judge in his Sessions Division to another Additional Sessions Judge in his Sessions Division. The transfer of a case under section 408 of the Code being in exercise of a judicial power, it should be preceded by a hearing to the parties interested. Further, the reason or reasons why it is expedient for the ends of justice to transfer the case, has to be recorded. (b) The judicial power under section 408(1) Cr.P.C. and the administrative power under sections 409(1) and (2) are distinct and different and section 408 is not controlled by section 409(2). A Sessions Judge in exercise of his administrative power under section 409 may: (i) withdraw any case or appeal from any Assistant Sessions Judge or Chief Judicial Magistrate sub-ordinate to him; (ii) recall any case or appeal which he has made over to any Assistant Sessions Judge or Chief Judicial Magistrate sub-ordinate to him; CRM-M-21377-2011 (O&M) [ 5 ] :::::::::: (iii) recall any case or appeal which he has made over to any Additional Sessions Judge, before trial of such case or hearing of such appeal has commenced before such Judge, and try the case or hear the appeal himself or make it over to another Court for trial or hearing in accordance with the provisions of Cr.P.C. No hearing need be granted to any one before exercising such power. But the reason therefor shall have to be recorded having regard to section 412. (c) A Sessions Judge in exercise of his administrative power under section 409, may also recall any case where trial of the case or hearing of an appeal has commenced before an Additional Sessions Judge (for the purpose of trying/hearing it himself or for being made over to another Additional Sessions Judge), if such Judge before whom it became part-heard has retired, resigned, died or is transferred outside the Sessions Division. No hearing need be given for such recalling though the reason should be recorded. It is not necessary to refer such matters to the High Court for transferring them by exercise of power under section 407 of the Code.” Before answering the questions which have been framed in the present case, it would be relevant to refer to Section 409 of the Cr.P.C., which reads as under: “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 CRM-M-21377-2011 (O&M) [ 6 ] :::::::::: 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.” According to Section 409(2) Cr.P.C., the Sessions Judge can recall any case or appeal which he has made over to any Additional Sessions Judge at any time before the trial of the case or hearing of the appeal has commenced. Meaning thereby, he has no jurisdiction to recall any case or appeal for the purpose of handing it over to another Additional Sessions Judge after the commencement of the trial or hearing of the appeal. This provision has been discussed in para no.17 of the aforesaid judgment in the case of In Re: by Distt. & Sessions Judge, Raisen – Petitioner (supra), which reads as under: “17. Legislative intent behind Section 409(2) is that where the trial of the case has commenced or hearing of an appeal has commenced (for convenience 'becomes part-heard'), the case or the appeal should be continued to be tried or heard by the same Judge before whom the trial of the case or hearing of the appeal has commenced and there should be no interference with the progress of the case or appeal and, therefore, the administrative power of recalling should not be exercised. This salutary principle is to ensure speedy trial and hearing but when the Additional Sessions Judge trying the case retires or resigns or dies or is CRM-M-21377-2011 (O&M) [ 7 ] :::::::::: transferred out of the Sessions Division and the Court becomes vacant, the case or appeal ceases to be a part-heard case. A case or appeal can be said to be part-heard only when the trial of the case or hearing of the appeal is capable of being continued by the Judge before whom the trial or hearing has commenced. Where the Judge before whom the matter is part-heard, ceases to be a Judge or the Court falls vacant, the matter ceases to be a part- heard matter before that Judge and file bar relating to recalling of part-heard matters, ceases to apply. It is clear from the context in which sub-section (2) has been enacted, that it applies only to cases where trial of the case or hearing of the appeal has commenced before a particular Additional Sessions Judge and such Judge continues to preside over the same Court or continues in the same Sessions Division. If the Additional Sessions Judge is transferred to some other Sessions Division or ceases to be a Judge on account of resignation, retirement or death resulting, in the Court becoming vacant, the restriction placed on the power under sub-section (2) of Section 409 will cease to apply and as a consequence the Sessions Judge can recall the case or appeal under Section 409(2). But where the Additional Sessions Judge is transferred within the Sessions Division or is on leave or under suspension, the restriction over the administrative power under Section 409(2) may continue to exist.” In view of the aforesaid discussion, there is no room left to take another view that the Sessions Judge has the jurisdiction to recall any case or appeal for the purpose of handing it over to another Additional Sessions Judge after the commencement of trial of the case or hearing of the appeal. Hence, the first question is answered accordingly. In respect of the second question, it has been decided in the CRM-M-21377-2011 (O&M) [ 8 ] :::::::::: case of In Re: by Distt. & Sessions Judge, Raisen – Petitioner (supra) that in a case where the Judge, before whom the case has become part-heard, has retired, resigned, died or is transferred outside the Sessions Division, the Sessions Judge has the jurisdiction to recall the case and hear it himself or hand it over to any other Additional Sessions Judge. Hence, after the withdrawal of the Court of Shri S.K.Sachdeva, Additional Sessions Judge (Fast Track Court), Bathinda, the Sessions Judge, Bathinda had rightly transferred the case to the Court of Shri Sukhdev Singh, Additional Sessions Judge, Bathinda despite the fact that the trial had commenced. Hence, the second question is answered accordingly. However, keeping in view the facts and circumstances of this case, I am of the considered view that the ground on which case has been recalled and handed over to Shri D.S.Johal, Additional Sessions Judge, Bathinda on 24.05.2011 on administrative ground to provide him work is legally untenable and as such, the said order of the learned Sessions Judge, Bathinda is illegal and is hereby set aside/quashed and it is ordered that both the aforesaid cases be restored back forthwith to the Court of Shri Sukhdev Singh, Additional Sessions Judge, Bathinda. The petition stands disposed of accordingly. December23 , 2011 (RAKESH KUMAR JAIN) vinod* JUDGE