DIWAKAR Vs. STATE NATIONAL CAPITAL TERRITORY OF DELHI

JUDGEMENT

(1.) This application under Section 407 of the Code of Criminal Procedure ('Code' for short) is for transfer of the case relating to FIR No..179/97, u/s 302/34 INDIAN PENAL CODE, presently pending trial before Shri D.C.Anand, Additional Sessions Judge, Karkardooma Courts, Delhi, to the court of Shri Ajit Bharihoke, presently Presiding Judge, MACT, Karkardooma Courts, Delhi. The main ground on which such a prayer has been made is that prosecution as well as defence evidence has been closed and statement of the accused has been recorded in terms of Section 313 of the Code and, therefore, trial is practically over. Since the evidence has been recorded by Shri Bharihoke, it is Just and proper that finality to the trial should be given by him.

(2.) When the matter was placed before the learned Single Judge, it was noticed that in another matter i.e. Crl.M.(M) No.3174/2000, a reference has been made to a larger Bench, doubting the correctness of view expressed by another learned Single Judge in Sushil Sharma v. State [Crl.M.(M) No .3202/2000] , accepting an identical prayer. Learned Single Judge hearing the present matter was of the view that scope and ambit of Section 326 of the Code was not kept in view while the matter was decided in Sushil Sharma's. Case (supra).

(3.) we had occasion to deal with a similar prayer in S. Muthukrishnan & Anr National Caoital Territory of Delhi & Ors. [CwP No.389/2001] which was decided on 19/4/2001. It was, inter alia, observed that "There is no provision in any law which permits re-calling of a judicial officer to deliver judgment/order after he has been transferred. In fact, such a course would be against the legislative intent reflected in Section 326 of the Code. It is not in dispute that the present incumbent is empowered to deal with the matter". It has to be noted that in several other cases, for example Chander Prakash * Ors. v. state 1995 III AD (Delhi) 578. similar prayer was rejected on the ground that every Presiding Officer is expected to act fairly and impart justice and that no prejudice would be caused to the accused, if the case is decided by the successor judge.