SUSHIL KUMAR Vs. STATE

JUDGEMENT

(1.) This is an application for transfer of the case under Section 407 of the Code of Criminal Procedure. Sushil Kumar was being tried by the Court of Mr. S.M. Aggarwal, Additional Sessions Judge on a charge under Section 302, Indian Penal Code The learned judge recorded the entire evidence in this case. He heard the arguments of counsel for the prosecution. He heard the arguments of counsel for the accused in part. The arguments were not concluded on 23rd August, 1982 by counsel for the accused. He was to continue his remaining arguments on 30th August, 1982. The case was at that stage when the learned Sessions Judge on 26th August, 1982 passed an order transfering this case from the court of Mr S.M. Aggarwal to the court of Mr. J.D. Kapur, Additional Sessions Judge. The following is the order made by him : "In pursuance of Delhi High Court letter No. 11680/VI E. 2(a) S2 dated 20.7.82 the following Sessions Cases pending in the court of Shri S.M. Aggarwal, Additional Sessions Judge, Delhi are hereby withdrawn and transferred to the court of Shri J.D. Kupur, Additional Sessions Judge, Delhi for disposal according to law. <FRM>JUDGEMENT_6_DRJ4_1983Html1.htm</FRM> This Older apparently was made on the administrative side. The High Court letter to which the learned Sessions Judge refers is in these terms :

(2.) In Pyare Lal v. State of Punjab AIR 1962 SG 690 (p. 693) the Supreme Court has observed that it is an important and well established right of the accused that his case should be decided by a judge who has heard the whole of it. The impugned order offends this cardial principle. It is a general principle of law that only a person who has heard the evidence in the case is competent to decide whether the accused is innocent or guilty. Section 326 is an exception to this rule and was introduced purely for administrative convenience. Beyond this it is not permissible to go. If the administrative orders are in conflict with the principle of fair trial the Code will prevail. In the case of Sessions Judges who usually try the more serious offences the departure from the principle that the person who hears the evidence must give judgment should not be permitted, except for compelling reasons. And those grounds arc enumerated in Section 407, Gr.P.G.

(3.) Reference was also made to an order of the Supreme Court in Tara Chand v. State (Cr. A. 41/82) decided on January 18, 1982. In that case a learned judge of this court in Cr.M. (M) 485/81 refused transfer of a case in very similar circumstances. In that case evidence of 25 witnesses had been recorded by a learned Additional Sessions Judge. Thereafter by an administrative order the case was transferred from that court to another court. The petitioner claimed that the first court ought to try the case because the judge of that court had recorded a substantial part of the evidence in the ase. This court refused to transfer the case back to the first court. The Supreme Court reversing the decision of this court transferred the case to the file of the first judge who had recorded the evidence of 25 witnesses.