Gujarat High Court Abdul Raoof Alias Raoof Abdul Kader ... vs State Of Gujarat on 26 June, 2001 Equivalent citations: (2002)4GLR3252 JUDGMENT H.K. Rathod, J. 1. Rule. Service of rule is waived by Mr. H.L. Jani, learned APP appearing for the State. 2. Heard learned advocates for the parties. 3. Present petition has been filed by the petitioner under section 407 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code" for short) challenging the order passed by the learned Principal Judge, City Sessions Court, Ahmedabad dated 25th January, 2001 in criminal miscellaneous application no. 2453 of 2000 in sessions case no. 240 of 1996. The petitioner, initially, approached the learned Additional City Sessions Judge by filing application to transfer sessions case No. 240 of 1996 to other sessions court in the same sessions division. The concerned sessions court rejected the application filed by the petitioner on 20th October, 2000 and observed while rejecting the said application by observing that the petitioner may prefer transfer application before the forum if he is desired. With such observations, application submitted by the petitioner at Exh. 138 has been rejected by the learned Additional City Sessions Judge. After rejection of the said application, the petitioner preferred application before the Principal Judge, City Sessions Court by filing criminal miscellaneous application no. 2453 of 2000 in sessions court which too came to be rejected by the learned Principal Judge, City Sessions COurt, Ahmedabad by order dated 25.1.2001 and, thereafter, the petitioner has filed the present application before this Court under section 407 of the Code. 4. Learned advocate Mr. Malik, while challenging the orders in question, has submitted that the learned Additional Sessions Judge Shri A.J. Bhatt who tried sessions case no. 45 of 1998 has convicted the present petitioner and has also simultaneously tried and recorded the evidence in sessions case no. 240 of 1996 wherein the petitioner is an accused. In sessions case no. 240 of 1996, written arguments have been submitted by the parties and the case has been fixed for oral arguments. The case is at the stage of oral arguments to be advanced by the prosecution and the accused side. During the pendency of the arguments and in view of the fact that in previous sessions case no. 95 of 1998, documentary and oral evidence was led by the prosecution in both the sessions cases was common, similar and identical and, therefore, the petitioner, having reasonable apprehension that he will not get fair trial in sessions case no. 240 of 1996 before the learned Additional Sessions Judge Shri A.J. Bhatt, has filed application for transfer of the sessions case no. 240 of 1996 to other sessions court. The application submitted by the petitioner before the learned Additional Sessions Judge and then before the Principal Judge, City Sessions Court, Ahmedabad has been rejected as aforesaid. While rejecting the application submitted by the petitioner, the learned Principal Judge, City Sessions COurt, Ahmedabad has observed as under: "I am conscious that by the transfer of the sessions case no. 240 of 1996, the prosecution will not suffer and the accused will also better confidence in the court of law, however, in the present set of facts, whether it is proper for me to transfer the case is a question of million. " 5. The learned Principal Judge, City Sessions Court, Ahmedabad then observed as under: "In view of the facts stated in the application, I am of the opinion that once judicial order is passed by brother judge Shri A.J. Bhatt by rejecting the application Exh. 138 in sessions case no. 240/96, I cannot sit in appeal or review the order passed by Shri A.J. Bhatt. Section 408 of the Cr.P.C. says that whenever it is made to appear to a sessions judge that order under this sub sec. is expedient for the hands (ends) of justice, he may order that particular case be transferred from one criminal court to another court in his sessions division. In my opinion, the order passed by brother judge Shri A.J. Bhatt by rejecting the application Exh. 138 was not administrative order but judicial order. On administrative side, if any order is passed by any other additional sessions judge to invoke its own power, however, where the order is passed in judicial proceedings. I am afraid. I cannot interfere in the said order. Under the circumstances, I am of the opinion that now my hands are tight and I cannot review or sit in appeal over the order passed by brother judge Sri AJ Bhatt by rejecting application Exh. 138." 6. Learned advocate Mr. Malek has heavily relied upon the observations as aforesaid made by the learned Principal Judge, City Sessions Court, Ahmedabad and has pointed out that though the observations are in favour of the petitioner, however, the application has been rejected considering the fac