IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL REVISION APPLICATION No 357 of 2000 For Approval and Signature: Hon'ble MR.JUSTICE D.P.BUCH ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO -------------------------------------------------------------- RAJU @ BIMALDAS SINDHI Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: MRS SHILPA J UNWALLA for Petitioner MR KG SHETH APP for Respondent No. 1 -------------------------------------------------------------- CORAM : MR.JUSTICE D.P.BUCH Date of decision: 01/05/2001 CAV JUDGEMENT 1. The petitioner abovenamed, being original accused no. 5 in Sessions Case No. 77/2000 pending before the City Sessions Court at Ahmedabad, has preferred this Criminal Revision Application under Section 397 of the Code of Criminal Procedure, 1973 (for short "Code"), challenging the order dated 29th August, 2000 recorded by the learned City Sessions Judge, Court No. 1, at Ahmedabad, dismissing the Criminal Revision Application No. 1648/2000 in Sessions Case No. 77/2000, which was filed by the present petitioner for transferring the said sessions case No. 77/2000 on file of the learned Additional City Sessions Judge, who has framed the charge against the petitioner and other accused persons for the offences punishable under Sections 302 read with 34, 114, 201 of Indian Penal Code. 2. It seems to be the case of the present petitioner that the aforesaid sessions case being Session Case No. 77/2000 is pending in the City Sessions Court at Ahmedabad. It has also his case that the charge was framed by the learned Additional Sessions Judge of Court no. 2 for the aforesaid offences. That the present matter was placed before another Additional Sessions Judge for trial according to law. The petitioner abovenamed preferred aforesaid application stating that since the charge was framed in the aforesaid matter by the learned Additional Sessions Judge of Court no. 2, the trial ought to be conducted by that Additional Sessions Judge and not by any other Additional Sessions Judge of the City Sessions Court at Ahmedabad. Therefore, the petitioner prayed that not to the transfer the said sessions case for being tried by the learned Additional Sessions Judge, who has not framed the charge as aforesaid against the petitioner and other accused person and to transfer it to the additional City Sessions Judge, who has framed charge. 3. The learned City Sessions Judge after hearing the learned advocates for the parties, dismissed the said application of the petitioner. 4. Feeling aggrieved by the said order of the learned City Sessions Judge, the petitioner has preferred this Criminal Revision Application before this Court. 5. It is mainly contended that the charge was framed by the Additional Sessions Judge and therefore, the trial has commenced against the petitioner and other accused persons in aforesaid Sessions Case No. 77/2000. That once the trial commences, then in that case the learned Sessions Judge could not make over the case or transfer the case to any other Sessions Judge for trial according to law. That therefore, on one hand, transfer of the aforesaid sessions case before any other Sessions Judge of the City Sessions Court at Ahmedabad is illegal. That on the other hand, it was again illegal not to place the said case for trial before the learned Additional Sessions Judge, who had framed the charge against the petitioner and other accused persons. It is therefore contended by the petitioner that the aforesaid order of the learned City Sessions Judge is illegal and erroneous and deserve to be set aside. 6. The petitioner therefore, prayed that the present revision application be allowed and judgement and order of the learned Additional Sessions Judge be set aside and the aforesaid sessions case No. 77/2000 be ordered to be placed before the learned Additional Sessions Judge, who framed the charge against the petitioner and other accused persons. 7. On receipt of the aforesaid petition, notice was issued. Mr. K.G. Sheth, learned APP appears for the State of Gujarat. I have heard the arguments advanced on behalf of the parties and I have perused the papers shown to me. 8. It is not much in dispute that the chargesheet was filed and charge was framed against the petitioner and other accused persons by the learned Additional Sessions Judge of the City Sessions Judge at Ahmedabad. It is not in dispute that the said sessions case was placed before the learned Additional Sessions Judge of that Court for trial. It is not much in dispute that the learned Additional Sessions Judge to whom the matter has been assigned for trial has not framed the charge. Therefore, it is an admitted position that petitioner had applied for assigning the said Sessions Case No. 77/2000 to the learned Additional Sessions Judge, who had framed the charge and that application was turned down by the learned Sessions Judge. The learned advocate appearing on behalf of the petitioner has argued the matter at a great length. She has taken me through various provisions of the code. It has been contended by her that the learned Additional Sessions Judge has framed the charged and when the charge is framed, trial is commenced and when the trial commences, then, the Sessions Judge has no power to transfer a sessions case from one Additional Sessions Judge to another Additional Sessions Judge of that Sessions Division. On that aspect of the case, there are various decisions rendered by this Court to the effect that the trial commences at the stage of framing of charge and thereafter, the Sessions Judge could not transfer the sessions case from one Additional Sessions Judge to another Additional Sessions Judge of that Sessions Division. She has therefore, contended that in that view of the aforesaid legal position, the learned Sessions Judge ought to have assigned the aforesaid sessions Case No. 77/2000 to the learned Additional Sessions Judge, who had framed the charge. It is also her contention that the learned Sessions Judge could not have assigned the said Sessions case to another Additional Sessions Judge of that Sessions Division. 9. In order to appreciate the aforesaid arguments advanced by Ms. Shilpa Unwala, learned advocate appearing for the petitioner, it would be necessary to refer to the provisions made in Section 409 of the Code. It would be worthwhile to refer the said provision for ready reference as follows :- "(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, a 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 of appeal under subsection (1) or subsection (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. 10. Ms. Unwala has particularly emphasized on Subsection 2 of Section 409 of the Code. From the said section it is clear that at any time before the trial of the case or the hearing of the appeal has commenced before the Additional Sessions Judge, a Sessions Judge may recall any case or appeal which he has made over to any Additional Sessions Judge. 11. With respect to the aforesaid provisions of Sub-section 2 of Section 409 of the Code, it has been argued by Ms. Unwala that a power of transfer can be exercised by the Sessions Judge for transfer of a trial of sessions case from one Additional Sessions Judge to another Additional Sessions Judge of that Sessions Division only before the trial commence. It is also her argument that once the charge is framed, trial commenced and once the trial commenced, the power to transfer the sessions case from one Additional Sessions Judge to another Additional City Sessions Judge cannot be exercised and in fact, the learned Sessions Judge has no power or jurisdiction to transfer any such case in which, the trial has commenced. 12. In support of the said contentions, learned advocate for the petitioner has relied upon three decisions of this Court. The first decision relied upon by Ms. Unwala has been rendered by this Court in case of MUSA MAHAMMAD MALEK & ANR. VS. STATE OF GUJARAT, reported in 1995(1) GLR, P.845.. In the aforesaid matter, this Court has considered the provisions made in Section 409 of the Code and after referring to the provisions made in sub-section 1 of the Section 409 of the Code, this Court (Coram : K.R. Vyas, J.) has observed in para 5 as follows :- "Subsection (1) of Section 409 empowers a Sessions Judge to withdraw any case or appeal from, or recall any case or appeal which he has made over to any Assistant Judge or Chief Judicial Magistrate subordinate to him. However, reading sub-section 2 of Section 409, it becomes abundantly clear that the Sessions Judge is empower to recall any case or appeal, which he has made over to any Additional Sessions Judge, only before the trial of the case or the hearing of the appeal has commenced before the Additional Sessions Judge. In other words, at any time before commencement of trial of a case, hearing of an appeal before the Additional Sessions Judge, power to withdraw or recall any case or appeal is versted in the Sessions Judge. However, after commencement of the trial of a case or hearing of an appeal, such a power is not left with the Sessions Judge. In this case, it is not in dispute that the charge has already been framed by the third Additional Sessions Judge on an application directing the investigating agency to produce certain evidence. That order has also been partly complied with. Therefore, in the present case, the trial had already commenced when the charge was framed. It was, therefore, not open to the Sessions Judge to withdraw the said case from the file of third Additional Sessions Judge and to make over the same to Additional Sessions Judge. The Supreme Court in Ratilal Bhamji Mithani Vs. State of Maharashtra AIR 1979 SC 94 has held that the trial in a warrant case starts with the framing of charge; prior to it, the proceedings are only an inquiry. Therefore, exercise of power under Section 409 of the Code by a Sessions Judge after the commencement of the trial is not permissible. In this case, as the trial had already commenced with the framing of charge, the learned Sessions Judge had thereafter, no power or authority under Section 409 of the Code to recall the case from the file of the third Additional Sessions Judge. 13. Thereafter, after referring to a decision of Manoj Majmudar Vs. State of West Bengal, 1984, Cri. L.J. 28, learned Single Judge of this High Court (Coram : K. R. Vyas, J.) has observed that the learned Sessions Judge, was not right in the present case in recalling Sessions Case No. 45 of 1993 from the 3rd Additional Sessions Judge after the trial commenced therein and transferring the same to the Additional Sessions Judge. The said judgement was rendered by this Court on 12.12.1994. 14. The second decision relied upon by Ms. Unwala can be gathered from Misc. Criminal Application No. 463 of 1996 in case of YUNUSBEG AHMEDBEG MIRZA VS. STATE OF GUJARAT, the said matter also relates to transfer of Sessions case from one Additional Sessions Judge to another Additional Sessions Judge after framing of charge. It appears from the copy of the judgement of this matter, that one sessions case being sessions case No. 107/95, was ordered to be transferred by the learned Sessions Judge of the Sessions Division at Vadodara from the court of one Additional Sessions Judge to the Court of another Additional Sessions Judge of that Sessions Division. Same way, another sessions case No. 1134/95 was also transferred accordingly. 15. When the matter was taken up before this Court by way of the Misc. Criminal Application No. 463/96, this Court (Coram : S.D. Dave, J. ) considered the provisions made in Section 409 (2) of the Code and after examining the said provision, came to a conclusion that when the charge was framed, it was not open to the learned Sessions Judge to transfer the said sessions case from one Additional Sessions Judge to another Additional Sessions Judge. 16. Learned Judge of this Court has observed in that decision that if the learned Sessions Judge wanted to recall the said two sessions cases pending on the file of the learned Additional Sessions Judge with a view to see that they are made over to some other learned Additional Sessions Judge, the prerequisite condition was that the trial should not have commenced. This is especially so because the charge has been framed. The plea of the accused persons have been recorded and there has been the issuance of the summons to the prosecution witnesses also. This all would go to show eloquently and without any manner of doubt that, when the said orders came to be passed, the trial in respect of both the sessions cases had commenced. It is therefore, clear that under Section 409(2) of the Code, also, this exercise could not have been done. The aforesaid decision was rendered by this Court on 26/4/1996. 17. Then we can turn to the third decision of this Court. It has been incidentally recorded in the case of GAMBHIRSING BHAVSINHJI PADHERIYA VS. STATE OF GUJARAT, reported in 1993(1)GLH P.433. Almost similar principles had been enunciated in the said decision (Coram : A.N. Divecha,J.) and the said decision has been rendered on 11.2.1993. In para 13 of the said judgement, the learned Single Judge of this Court clearly observed that the learned Sessions Judge, named Shri V.C. Mandalia, was not shown to be divested of the powers to conduct cases under the Act. In that view of the matter, the learned Sessions Judge could not have withdrawn the sessions case in question from the file of the leaned Additional Sessions Judge, named Shri V.C. Mandalia. 18. Thereafter, she has also relied upon decision of the Hon'ble Supreme Court in the case of RATILAL BHANJI MITHANI VS. STATE OF MAHARASHTA, reported in 1979 Cri. L.J. Page 41. It has been observed in para 26 of the said decision that the trial in a warrant case starts with the framing of charge, prior to it, the proceedings are only an inquiry. 19. So, on one hand, the Hon'ble Supreme Court has clearly observed that in warrant case, the trial commenced from the stage of framing of charge and on the other hand, the aforesaid three decisions rendered by this Court on 11.2.1993, 12.7.1994 and 26.4.1996 clearly show that once the charge is framed, trial commences and once the trial commences, the Sessions Judge has no authority to transfer a sessions case from one Additional Sessions Judge to another Additional Sessions Judge, in view of embargo placed in Subsection 2 of Section 409 of the Code. 20. On the strength of the aforesaid decisions, Ms. Unwala, learned advocate for petitioner has argued that the learned Sessions Judge could not transfer the said matter from one Additional City Sessions Judge to another Additional City Sessions Judge in view of the provisions made in Subsection 2 of the Section 409 of the Code as has been discussed at length by three decisions of this Court referred to hereinabove. It is therefore, argued that when the learned Sessions Judge had no authority to transfer the said part heard sessions case from one Additional Sessions Judge to another Additional Sessions Judge. Therefore, the impugned order of the learned Sessions Judge is according to her arguments, illegal and therefore, as she argue , it is required to be interfered with in this Criminal Revision Application. 21. At the same time, it would also be worthwhile to refer to a decision of the Hon'ble Supreme Court in case of STATE OF KARNATAKA VS. KAPPURSWAMY GOWNDER, reported in 1987 Cri. L.J. P. 1075 (= AIR 1987 SC 1354). Para 10 of the said decision may be reproduced for ready reference hereinbelow :- "It is not disputed that the Metropolitan Area Banglore City has a Sessions Division and is presided over by a Principal Sessions Judge and has a number of Additional Sessions Judges. It is also not disputed that all the Sessions Judges sitting in this Division are notified as Sessions Judges for the Division and therefore, it is also not disputed that all of them have jurisdiction to try a case arising out of the Sessions Division. Even the judgement of the High Court does not indicate any lack of inherent jurisdiction. What has weight with the High Court is that as the charge was framed by the II Additional Sessions Judge the case could not be transferred to the board of III Additional City Civil and Sessions Judge without an order of transfer by the High court as it was observed that under S. 194 the case could not be withdrawn by the Principal Sessions Judge after the commencement of the trial and this was inferred from the provisions contained in S.409, Cl. (2) Section 194 reads as under : "Additional and Assistant Sessions Judges to try cases made over to them :- An Additional Sessions Judge or Assistant Sessions Judge shall try such cases as the Sessions Judge of the Division may be general or special order, make over to him for trial or as the High Court may, by special order, direct him to try." 22. On going to Para 13 of the said judgment, we can find an observation of the Hon'ble Supreme Court that only, objection which has prevailed with the High court is that as charge was framed and plea was recorded by the II Additional City Civil & Sessions Judge, it could not be have been withdrawn by the Principal Sessions Judge and made over to III Additional City Civil & Sessions Judge. It is not disputed that it was withdrawn and made over. In this view of the matte, therefore, the provisions contained in S. 465 are found to be important to some extent by the Hon'ble Supreme Court. 23. The Hon'ble Supreme Court considered the provisions made in Sections 462 and 465 of the Code and found that where there is no inherent lack of jurisdiction merely either on the ground of lack of territorial jurisdiction or on the ground of any irregularity of procedure, an order or sentence awarded by a competent court cannot be set aside unless a prejudice is pleaded and proved which will mean failure of justice. However, in absence of such a plea, merely on such technical ground the order or sentence passed by a competent court could not be quashed. 24. The above observations made by the Hon'ble Supreme Court in the aforesaid decision are incidently relied upon by the learned advocates for both the parties. 25. On the other hand, learned APP has relied upon a decision of this Court in a case of BIPIN SHANTILAL PANCHAL VS. PRUTHVIRAJ @ ANIRUDHSINGH & ORS., reported in 1998(3) GLR, P.2383. It appears that as per the fact of the case narrated in para 5 of the judgement, Sessions Case No. 162/94 was notified for framing of charge on the cause list of Addl. City Sessions Judge, Court no. 15 at Ahmedabad.. That in the mean time, the petitioner of the aforesaid matter being Criminal Revision Application No. 472/97, had moved an application at Ex. 17 in the said proceedings under Section 319 of the Code praying that respondent no. 1 in the said Criminal Revisions Application alongwith on Amrutbhai Soni and Bimal Amrutlal Soni be summoned before the Court under Section 319 of the Code and be directed to face the same charges which may be framed against present petitioner of the aforesaid Criminal Revision Application. 26. It would be worthwhile to reproduce para 9 of the said decision for ready reference hereinbelow :- " Shri R.K. Shah, learned Sr. Advocate appearing for the petitioner has assailed the impugned order by contending :- (a) that the impugned order is illegal and without jurisdiction in as much as, the transfer of the proceedings from the Court of Addl. City Sessions Judge, Ahmedabad, Court no. 14, after the framing of charge to the Court of Addl. City Sessions Judge, Ahmedabad, Court no. 10, is in violation of the provisions of S. 409(2) of the Code and settled proposition of law. (b) That the impugned order is not contradictory to the previous order passed by learned Addl. City Sessions Judge, Ahmedabad Court no. 14, under Section 319(1) of the Code but in effect it amounts to revision of the same which is impermissible under the law. (c) That the Court has erred in construing the scope of Sec. 227 of the Code and has exceeded the extent of permissible jurisdiction by considering the probative value of the evidence apparent from the material produced on the record.". 27. Learned Sr. Advocate appearing for the contesting respondent in the aforesaid revision application had supported the impugned order. During the course of the arguments in the matter, the decision of Musa Mahammad Malek & Anr. (Supra) as well as the decision of Ratilal Bhanji (Supra) were relied upon in the said matter. 28. The relevant consideration can be gathered from para 11 of the said Judgement and therefore, it would be necessary to refer it for ready reference hereinbelow :- "That in the matter of Musa Mahammad Malek & Anr. Vs. State of Gujarat, reported vide 1995(1) GLR 845, this Court having relied on observations made in the case of Ratilal Bhanji Vs. State of Maharashtra, reported vide AIR 1979 SC 94, held that the trial in a warrant case starts with the framing of charge. That prior to it proceedings are only an inquiry. That thereby, the Sessions Judge has no power to withdraw thee proceedings from the subordinate Court to him after the framing of the charge under Section 409(2) of the Code. However, in the instant case, it appears from the record that the proceedings of Sessions Case No. 162 of 1994 was posted in the cause list Court of Additional City Sessions Judge, Ahmedabad, Court no. 10 from the Court of Additional City Sessions Judge, Ahmedabad Court no. 14 on account of administrative order passed by learned City Sessions Judge and not under the provisions of Sec. 409(2) of the Code. It may be noted that as per the procedural practice followed at City Sessions Court, Ahmedabad under the provisions of Ahmedabad City Civil Court Rule 1961, the business of civil work as well as criminal work is being allotted to the Court of City Civil and Additional Sessions Judge by Principal Judge, who is also a City Sessions Judge, by rotation at periodical interval. That orders of allotment of sessions case to the Court of Additional City Sessions Judge, Ahmedabad does not amount to assign a case to a subordinate court by the Sessions Judge. That in the instant case as the Court of Addl. City Sessions Judge, Ahmedabad, Court no. 14, had competed the turn of criminal work and was assigned to the business and as such the proceedings of Sessions case No. 162 of 1994 was allotted to the Court of Addl. Sessions Judge, Ahmedabad Court no.