MUSA MAHAMMAD MALEK Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The petitioners, who are two amongst the original nine accused of Sessions Case No. 45 of 1993, are facing trial for offences punishable under Secs. 120-B, 143, 147, 148, 149, 302, 323 and 307 of the Indian Penal Code. It appears that there are cross-cases the other being Criminal Case No. 44 of 1993 which is also pending before the Sessions Court, Baroda.

(2.) It appears that Mr. M. H. Shah, 3rd Additional Sessions Judge, Baroda framed charge against the accused in the said case on 25-1-1994. Said Shri Shah was thereafter transferred from Baroda to Surat and the learned Sessions Judge entrusted the said Sessions Cases to Shri S. S. Patel, 3rd Additional Sessions Judge. An averment has been made in the petition that the said Shri Patel also decided application Ex. 35 on 4-7-1994 and directed the prosecution to produce certain evidence before the Court on or before 18-7-1994. The Investigating Agency has also partly complied with the said direction. However, the matter was thereafter adjourned to 16-8-1994. It further appears that the learned Sessions Judge, in exercise of the power conferred upon him under Sec. 194 read with Sec. 409 of the Criminal Procedure Code, has transferred the said Sessions Case Nos. 44 and 45 of 1993 to Shri V. S. Bhatt, Additional Sessions Judge. This order is challenged by the petitioners in this petition.

(3.) Mr. B. S. Patel, learned Advocate, appearing for the petitioners, has submitted that under Sec. 194 of the Code a Sessions Judge of the division may, by general or special order, hand over such cases for trial to an Additional Sessions Judge or Assistant Sessions Judge and according to this power, in the present case, the case of the petitioners was allotted to the 3rd Additional Sessions Judge, Baroda. It is submitted that as the said case is still pending before the 3rd Additional Sessions Judge, the Sessions Judge has become defunct officio and, therefore, has no power or control over the case made over to the third Sessions Judge and the power exercised under Sec. 409 of the Code is, therefore, without authority of law.