IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.3216 OF 2008 Gianender Jaibhagwansingh Chauhan .. Applicant Vs. The State of Maharashtra .. Respondent Mr.A.H.H.Ponda with Mr.Mukesh Modi for the applicant. Mr.J.P.Yagnik, A.P.P for the State. CORAM CORAM CORAM : A.S.OKA, J. : A.S.OKA, J. : A.S.OKA, J. DATE DATE DATE : 26th September 2008. : 26th September 2008. : 26th September 2008. P.C.: . Perused the report submitted by the learned Registrar (Judicial I). In the report it is stated that there is no separate Sessions Division created at Sewree and in Mumbai, there are only two Session Divisions. One is at principal seat at Kalaghoda, Mumbai and the other is at Dindoshi. The Courts of learned Additional Sessions Judges at Sewree are a part of the Sessions Division at Mumbai. 2. The applicant is an accused in a sessions case which was pending in the Court of the learned Adhoc Additional Sessions Judge Mr.K.D.Bhosale who was sitting in the Court at Sewree, Bombay. He was presiding over the Court Room No.10 of the said Court. It is not disputed by the learned A.P.P that before the learned Judge Mr.Bhosale, four prosecution witnesses have been 2 examined. Thereafter, the learned Judge Mr.Bhosale was transferred to the Principal seat of the Sessions Court at Kalaghoda, Mumbai. 3. As a result of the transfer of Mr.Bhosale, the case was transferred to the Court presided over by the learned Adhoc Additional Sessions Judge Mr.Trivedi who is presiding over the Court Room No.2 at Sewree. An application was moved before the learned Principal Judge by the applicant for transfer of the case to the learned Judge Mr.Bhosale. Reliance was placed by the applicant on section 409 of the Code of Criminal Procedure, 1973. By the impugned order, the learned Principal Judge rejected the said application. It will be necessary to refer to paragraph 4 of the said order which reads thus: "4. The undersigned has not transferred the Sessions case mentioned in the application. The transfer of Shri Bhosale from Court of Sewree to present Court is made by the Hon’ble Bombay High Court. Thus, matters are not withdarwn from previous Court or from Court of Shri Bhosale. The applicant is asking withdrawal of the matter, which is pending as part heard matter in a particular court, and that is against the 3 spirit of section 409(2) of Cr.P.C. When judicial officer is transferred from a particular Court, provisions of section 409(2) of Cr.P.C. cannot be applied and it cannot be said the transfer of Judicial Officer is also prevented by this Section." In paragraph 5 of the order the learned Principal Judge observed that learned Judge Mr.Bhosale has not expressed desire to keep the matter with him. 4. In paragraph No.2 of the order the learned Sessions Judge has observed thus: ".... The undersigned had given liberty to them to carry with them the matters which are made substantially part heard by them. Shri Bhosale did submit a list of matters which are made substantially part heard by him and accordingly those matters were withdrawn from his previous Court and they are allotted to the new Court which is presided over by Shri Bhosale. The present matter was not mentioned in the list." 5. It must be stated here that the learned Judge 4 Mr.Bhosale is not transferred and he continues in the same Sessions Division. The learned Principal Judge also accepted that some of the part-heard sessions cases pending before the learned Judge Mr.Bhosale while he was sitting at Sewree have been transferred to the Court presided over by the learned Judge Mr.Bhosale. It appears that learned Sessions has made a distinction between a case which is "substantially part-heard" and a case which is "part-heard". In my view, in law, no such distinction can be made. In the present case four prosecution witnesses have been examined before the learned Judge Mr.K.D.Bhosale. Therefore, the learned Sessions Judge ought to have acceded to the prayer made by the applicant. 6. Hence, I pass the following order: (i) The order dated 05th September 2008 is quashed and set aside. (ii) The learned Sessions Judge, Mumbai will transfer the Sessions Case No.771 of 2005 pending at Sewree to the Court presided over by the learned Judge Mr.K.D.Bhosale. 5 (A.S.Oka,J)