Usmangani Adambhai Vahora vs State Of Gujarat & Anr

3. The facts which are essential to be stated are that the 2nd respondent faced trial for the offences mentioned hereinbefore in Sessions Case No. 291 of 2003. After examination of 18 prosecution witnesses, the informant preferred an application under Section 319 CrPC for arraigning one Natubhai Maganbhai Edanwala as an accused in the sessions case. The said application was rejected by the learned trial judge vide order dated 18.05.2006. Aggrieved by the aforesaid rejection, the informant preferred Special Criminal Application No. 1444 of 2006 before the High Court which vide order dated 02.12.2011 rejected the same. The said order was assailed before this Court in Special Leave Petition (Criminal) No. 17262 of 2012 which was dismissed on 11.01.2013 with the observation that it would be open to the informant to file an appropriate application under Section 319 CrPC, if at the end of the examination of all the witnesses, some material is found to connect the person sought to be arraigned as an accused in the alleged crime. As the factual matrix would exposit, the informant filed another application under Section 319 CrPC after the examination of the prosecution witnesses Nos. 19 to 23 and the application was allowed. The newly arraigned accused preferred Special Criminal Application No. 1731 of 2013 before the High Court challenging the said order, and the High Court had stayed the same.

4. As the factual score would undrape on 31.07.2015 when the sessions trial was fixed before the learned 3rd Additional Sessions Judge, Kheda at Nadiad, as alleged, the second respondent was standing in the parking area meant for the four wheelers and at that time he could overhear certain conversation between the informant and his son that the trial would be surely taken up for hearing from the next date onwards and all the accused persons would definitely be convicted. As further alleged, the Presiding Officer said something regarding the trial which the accused correlated with the conversation he had overheard between the informant and his son. Under such circumstances, he filed Criminal Miscellaneous Application No. 545 of 2015 under Section 408 CrPC before the Principal Sessions Judge, Kheda for transfer of the sessions case to any other court in the same Sessions Division. The learned Principal Sessions Judges called for the remarks of the concerned Presiding Officer and, after taking into consideration the remarks and adverting to the position of law, rejected the application. The learned Principal Sessions Judge while rejecting the application had observed that once the trial commenced, he had no jurisdiction to transfer the case in exercise of the power under Section 408 CrPC. As has been stated earlier, the High Court had unsettled the said view and we have no hesitation to say correctly so.

13. Thus analysed, we are unable to sustain the order of transfer passed by the High Court. Consequently, the appeals are allowed in part. The finding recorded as regards the jurisdiction of the learned Sessions Judge is sustained, and as far as the direction to the Principal Sessions Judge to transfer the case from the 3rd Additional Sessions Judge to some other court being vulnerable and wholly unsustainable is set aside. The learned trial judge shall proceed with the trial and dispose of the same within six months.