AMRITHAPPA Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) THIS appeal is directed against the conviction and sentence passed by the Principal Sessions Judge, Dharwar, in SC No. 21 of 1980 dated 16-9-1980 convicting the appellants for having committed the offence punishable under S. 302 read with S. 34 of IPC, and sentencing etch one of them to under go imprisonment for life. On perusing the records and hearing the learned counsel for the appellants and the learned State Public Prosecutor, if is our considered opinion that the facts of the case and the evidence in the case need not be gone into as the trial held and the conviction recorded by the Principal Sessions Judge, cannot be considerded as having been done in valid exercise of his jurisdiction and therefore, according to law, and requires to be quashed. SC. Case No. 21 of 1980 after it was registered in Sessions Court, Dharwar, was made over by the Principal Sessions Judge to II Addl. Sessions Judge, Dharwar, in exercise of his powers under S. 194 of the Crl.P.C. Therefore, II Addl. Sessions Judge, Dharwar, got jurisdiction to try the said sesssions case. In fact in exercise of that he tried the case and examined nine prosecution witnesses. It is made clear by the Principal Sessions Judge, Dharwar, in his judgment that the II Addl. Sessions Judge expressed his inability-what was that inability is not known to us-to continue the trial and therefore, the Principal Sessions Judge withdrew the case to his own file. The records show that the order of withdrawal is passed on 21 7-1980. It reads as follows : "Under the powers vested in me under S. 409 Crl.P C , 1973, the SC. No. 21 of 1980. now pending on the file of II Addl. Sessions Judge Dharwad, is hereby withdrawn from his file and taken to the file of Principal Sessions Judge, Dharwad, for disposal according to law". It is plain from the order that the Principal Sessions Judge while passing this order has overlooked S. 409 (2) of the Crl. P C. which reads as follows : "At any time before the trial of the case or hearing of the appeal has commenced before the Addl. Sessions Judge, a Sessions Judge may recall any case or appeal which he has made over to any Addl. Sessions Judge." and has made use of the provisions in S. 409 (1) of the Crl.P.C. S.409 (1) of the Cr.P.C would have been applicable in case the II Addl. Sessions Judge had not commenced the trial. What the Principal Sessions Judge has done after passing the above order is to examine one more witness as PW-10 and five court witnesses. He had no jurisdiction to withdraw the case under S. 409 (1) of the Cr.P.C, in view of S. 409 (2) of the Cr.P.C. and proceed with the trial. Therefore the trial held by the Principal Sessions Judge is not in accordance with law and as such, is without jurisdiction. S. 326 of the Cr.P C as amended by Act 45 of 1978 empowers a succeeding Sessions Judge to continue the trial. The II Addl. Sessions Judge who examined P.Ws. 1 to 9 is succeeded by another Sessions Judge as the matter stands today. That II Addl Sessions Judge by virtue of amended provision in S. 326 of the Cr.P.C can continue the trial as it stood prior to the examination of PW-10 by the Principal Sessions Judge. In view of the aforementioned reasons, we have to quash the trial held by the Principal Sessions Judge, Dharwad, from the stage at which it stood after the examination of PW-9 by the II Addl. Sessions Judge, Dharwad, and set aside the judgment and order of conviction and sentence passed on the appellants. In view of this the original order made by the Principal Sessions Judge under S. 194 of the Cr. P.C. remains and the sessions case reverts back to the file of II Addl. Sessions Judge, Dharwad, who, in view of the amended provisions in S. 326 of the Cr. P.C.-as already stated-can continue the trial of the Sessions case from the stage at which it stood after the examination of PW-9. In the result, we quash the trial held by the Principal Sessions Judge, Dharwad, from the stage at which it stood after the examination of PW-9 and set aside the judgment and order of conviction and sentence passed against the appellants. We direct the II Addl. Sessions Judge, Dharwad, to continue the trial of the sessions case from the stage at which it stood after the examination of PW-9 and dispose of the same according to law.