AVINASH CHANDER Vs. STATE

JUDGEMENT

(1.) The petitioner was facing a trial before Mr. T.S. Oberoi, Addl. Sessions Judge, Delhi. The learned Additional Sessions Judge framed charges and adjourned the case for recording of the prosecution evidence. Two more cases were pending against him in the court of Mr. R.C, Jain, Addl. Sessions Judge. The case which was pending before Mr Oberoi was transferred by the learned Sessions Judge by his order dated 4-1-1982 to the court of Mr. R.C. Jain. The petitioner made an application to the learned Sessions Judge that in the face of section 499 the case pending in the court of one Additional Sessions Judge could not be transferred to the court of another Addl. Sessions Judge because the trial had already begun. Relying upon my decision in Suresh Kumar v. State and others, 1981 Cri. L.J. 928, the learned Session Judge rejected the application on 16-11-1982 stating that the transfer was ordered under section 408 and not under section 409 Criminal Procedure Code . This order is under challenge in this petition. It is also requested that this court may direct retransfer under section 407 Criminal Procedure Code . In fact, this is a petition for reconsideration of the decision in Suresh Kumar (supra). The learned counsel for the petitioner feels that the decision was made because certain authorities of other High Courts were not brought before me. In Suresh Kumar (Supra) I had said:

(2.) Yet, the learned Judges held that in view of sub-section (1A) of section 528, the Sessions Judge has no power to entertain an application for transfer even under sub-section (1C) thereof from the court of Additional Sessions Judge after the trial of the case or hearing of the appeal has commenced before him; also see State of U.P. v. Khurkhundi. 1971 A.L.J. 362, and Karam Chand v. State of U.P. 1980 (6) A.L.R. 625. In Smt. Gulzar v. Nizam a id another, 1981 A.W.C. 23, the trial of the case started in the Court of the IV Additional Sessions Judge Shri K.L. Sharma. Later on he was designated as II Additional Sessions Judge. One Shri Sarkar took over as IV Additional Sessions Judge and took up the case left by his predecessor and examined the witness of the defence. The Sessions Judge was requested to transfer the cases to the Court of Shri Sharma the II Addl. Sessions Judge. The leraned Sessions Judge rejected the application, while accepting a transfer petition made to it, the High Court held that the intention behind the Code seems to be that part heard cases should be tried by the Judge before whom the trial had commenced and who was seixed of the case. This case does not support the cantention raised by Shri Bawa because the Sessions Judge had made no order of transfer from the court of one Addl. Sessions Judge to another Additional Sessions Judge, and the reasoning adopted by the High Court is no more of any validity in view of the amendment of section 326 by virtue of which a part heard case may be tried by a successor Judge.

(3.) I have not been able to quite see how, having once said that the Court of Additional Sessions Judge is a criminal court, does it then cease to be so under section 408 Criminal Procedure Code . and limit the power of the Sessions Judge exercisable under that section ? It is not possible by any principle of interpretation to have read sub-section (1A) as a proviso or qualification to the powers available under sub-section (1C) of section 528. The new Code has split section 528 into section 408 (olds. 528 (1C,) and section 409 (old section 528 (1A). That cannot be and is not without any significance. Section 408 is the general power to be exercised for the ends of justice while section 409 provides for a power more of an administrative nature given to the Sessions Judge to withdraw any case or appeal made over by him to the Additional Sessions Judge. It should also be noticed that section 409 speaks of cases and appeals while section 408 speaks of a case only.