IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr.MMO No. 15 of 2009 Decided on: 12.3.2009. _________________________________________________ Bhagat Ram and another …….. Petitioners Versus State of H.P. …….. Respondent Coram The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ? Yes. For the petitioners :Mr. Nimish Gupta, Advocate. For the respondent :Mr. J.S.Guleria, Asstt. Advocate General. Surinder Singh, J (oral). The present petition has been filed under Section 407 read with Section 482 of the Code of Criminal Procedure seeking transfer of the Criminal Case No.13/08/09, State vs. Bhagat Ram, pending in the Court of learned Additional Sessions Judge (Fast Tract Court), Chamba and also to set-aside the order dated 12.1.2009, passed by the Learned Sessions Judge, in Criminal Misc. Petition No.58/08. Briefly the facts of the case are that the accused-petitioners are facing trial _____________________________________________________ Whether reporters of Local Papers may be allowed to see the Judgment ?. Yes. - 2 - under Section 302 read with Section 34 of the Indian Penal Code in the court of learned Additional Sessions Judge (Fast Tract Court), Chamba. In this case, the prosecution has examined its witnesses and the statements of the accused persons under Section 313 of the Code of Criminal Procedure stood recorded on 2.6.2008. No evidence in defence was led by the accused persons and finally, the matter was fixed for final arguments on 28.6.2008, on which date learned Public Prosecutor sought time. Thereafter the case was adjourned for 18.7.2008. On 18.7.2008, accused-applicants who were on bail sought adjournment, on the ground that their counsel was unwell, thus the case was adjourned for 28.7.2008, but in the meantime an application was moved under Section 408 of the Code of Criminal Procedure before the learned Sessions Judge, seeking the transfer of the case, on the ground that the learned Additional Sessions Judge (Fast Tract Court) was in hurry to decide the matter despite the fact that the accused-petitioners were on bail. Secondly, during the trial he admitted inadmissible evidence i.e. part of - 3 - the zimini despite objection raised by the learned defence counsel. Learned Sessions Judge requisitioned the record and on going through it found that both the grounds were untenable, thus dismissed the application. Now the accused-petitioners moved the present petition under Section 407 read with Section 482 of the Code of Criminal Procedure, on the same grounds as aforesaid and also sought the setting aside of the order of the learned Sessions Judge. In fact Section 407 of the Code of Criminal Procedure sets out elaborately the circumstances in which the High Court may order transfer of a case or an appeal from one subordinate court to another or from another subordinate court to itself. This section can be brought into action in one of the three ways: (i) suo-moto; or (ii) on the lower court reports; and (iii) on the application of a party. To enable a party to apply for transfer, one or more of the three grounds in clauses (a) (b) and (c) of sub Section (1) of Section 407 of the Code must be alleged and - 4 - substantiated. It is thereafter, that the High Court is competent to pass any of the four orders enumerated in Clauses (i) to (iv) of sub section (1)ibid. However, the Powers under Section 407 are very wide. The High Court may transfer if it appears to it expedient to the ends of justice apart from other grounds as mentioned in sub Section(1)of the section aforesaid. In the instant case, neither the request of the petitioners fall within any of the categories mentioned (a), (b) and (c) of sub Section (1) of Section 407 of the Code, nor from the facts pleaded nor it appears to me that it is expedient to meet the ends of justice to accede to the request of the accused-petitioners. As a matter of fact, the proceedings in a sessions trial should be conducted on day to day basis, irrespective of the fact, whether the accused is/ are on bail or in custody, unless Judge adjourns it to some other date in the interest of justice, for the reasons to be recorded by him. But in the present case, it is very astonishing to note that the accused are not interested for the disposal of their case at earliest, rather - 5 - they pleaded that the cases of the under- trials be disposed of first and also sought withdrawal of their case on the ground that the admission of the inadmissible evidence by the trial court. Both these grounds neither fall within the ambit of Section 407 Cr.P.C. nor it is in the interest of justice to accede to their request. Further the Sessions Judge is not empowered under Section 408 of the Code of Criminal Procedure to withdraw and transfer a case from the court of Additional Sessions Judge after the commencement of the trial by the later. But however, the position is converse where the case is at a pre-trial stage as indicated in sub-Section(2) of Section 409 Cr.P.C. Both these two stages are different and not construed or regulated by the other. Thus in the above circumstances, the grounds taken by the accused-petitioners for the withdrawal of the case and seeking transfer are unsustainable, therefore, the present petition is dismissed. March 12, 2009. (Surinder Singh), (Pds) Judge.