DINKERRAY RUGANATH MEHTA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This is an application for transfer of Special Case No. 1 of 1960 from of the Special Judge having that case to the file of Special Judge Rajkot.

(2.) Under sec. 526(1)(e) Criminal Procedure Code the High Court may for the reasons stated in that section order (1) that any offence be inquired into or tried by any Court not empowered under sec. 177 to 184 (both inclusive) but in other respects competent to inquire into or try such offences; (2) that any particular case or appeal or class of cases or appeals be transferred from a Criminal Court subordinate to its authority to any other such Criminal Court of equal or superior jurisdiction; (3) that any particular case or appeal be transferred to and tried before itself; or (4) that an accused person be committed for trial to itself or to a Court of Session. Where the order is passed under cl. (i) of sub-sec. (e) or cl. (ii) of sub-sec.. (e) of sec. 526 (i) Criminal Procedure Code a case can be transferred to a Court which has jurisdiction to hear such case. In the case of offences mentioned in sec. 6 of the Criminal Law (Amendment) Act it is only Special Judges who have jurisdiction. Sec. 6 of the Criminal Law (Amendment) Act reads as follows:-

(3.) Special Judges are appointed for an area or areas specified in the notification of the State Government. A Special Judge appointed for one area cannot try such an offence in another area. The disqualification to try such an offence in another area does not spring from sections 177 to 184 of the Criminal Procedure Code. If the incompetency of a person to try a case was merely due to sections 177 to 184 Criminal Procedure Code the case could nevertheless by transferred to him in view of sec. 526 (1) Criminal Procedure Code. but if incompetency of a Judge to try a case was due to sec. 6 of the Criminal Law (Amendment) Act sec. 526 (1) Criminal Procedure Code does not have the effect of removing that incompetency. A case like the present one can be transferred from one Special Judge to another only if the latter is competent to try the case as provided in sec. 6 of the Criminal Law (Amendment) Act in other words if he is a Special Judge for the area in question. The Special Judge of Rajkot has therefore no jurisdiction to try a Special Case arising out of the area of Kutch unless he is appointed a Special Judge for the area of Kutch by the Government under sec. 6 of the Criminal Law (Amendment) Act. The question whether or not to transfer a Special Case from the area of Kutch to the file of the Special Judge of Rajkot can only be considered after the State Government appoints the Special Judge of Rajkot as a Special Judge for Kutch where the offence is alleged to have taken place. Unless this is done the High Court cannot pass an order of transfer. The application is therefore rejected. Application Rejected.