GAMBHIRSINHJI BHAVSINHJI PADHERIYA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Can the Sessions Judge withdraw a part-heard case from the Additional Sessions Judge in exercise of his purported powers under Sec. 399 of the Code of Criminal Procedure, 1973 ('the Cr.P.C.' for brief) ? In the alternative, can the Sessions Judge withdraw a partheard case from the Additional Sessions Judge in exercise of his powers under Sec. 409 thereof ? These are the main questions that have cropped up in this petition under Sec. 482 of the Cr. P. C.

(2.) The petitioner has been facing trial for the offences inter alia punishable under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 ('the Act' for brief). It has come to be registered as Sessions Case No. 110 of 1991 in the Sessions Court at Rajkot. It appears that the learned predecessor of the learned present Sessions Judge, by his order passed on 3/12/1992 assigned that sessions trial to the learned Additional Sessions Judge, named, Shri V. C. Mandalia, for trial and disposal. It is not in dispute that the learned Additional Sessions Judge framed the charge against the present petitioner and proceeded with the trial on 10/12/1992. It appears that in the course of trial two witnesses came to be examined and certain documents produced on the record of the case on behalf of the prosecution as well as the defence were admitted to record. It appears that on 10/12/1992, the learned Public Prosecutor submitted one application to drop certain prosecution witnesses and got summons issued to certain witnesses and the next date for recording the evidence of the witnesses was fixed on 6/01/1993. It appears that in the meantime the learned predecessor of the learned present Sessions Judge was transferred and the present learned Sessions Judge assumed his charge on 12/12/1992. By his order passed on 14/12/1992, the learned Sessions Judge withdrew Sessions Case No. 110 of 1991 from the learned Additional Sessions Judge. It appears that the trial proceeded with the learned Sessions Judge and some four prosecution witnesses came to be examined in the course of trial. At that stage the present petitioner has approached this Court and has invoked the jurisdiction of this Court under Sec. 482 of the Cr.P.C. for the purpose of challenging the action of the learned Sessions Judge in withdrawing Sessions Case No. 110 of 1991 pending on the file of the learned Additional Sessions Judge, named, Shri V. C. Mandalia of Rajkot.

(3.) By the order passed on 13/01/1993, the report of the learned Sessions Judge was called for. After perusal of that report, this Court issued rule in this petition and made it returnable today.