KARAM CHAND Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) This is an application for transfer of S. T. No. 234 of 1978, pending in the Court of the III Additional Sessions Judge, Nainital. The accused have been implicated in case under Sections 307/34 of the Indian Penal Code and Sec. 27 of the Arms Act. After investigation of the crime, the case was committed to the Court of Sessions. The District and Sessions Judge transferred the case to the Court of the II Additional Sessions Judge, Sri K. C. Jain. Charges were framed by him under Section 307/34, Indian Penal Code on 16-3-1979 and 274-1979 was fixed for evidence; that the District and Sassions Judge transferred the case to the Court of III Additional Sessions Judge, Nainital. An application was moved by the accused to the District and Sessions Judge stating that the transfer of the case from the Court of the II Additional Sessions Judge to the Court of the III Additional Sessions Judge was without jurisdiction, but was dismissed. The District and Sessions Judge appears to have exercised his powers under Section 409 of the Criminal Procedure Code for withdrawing the case from the Court of the II Additional Sessions Judge, and sending it to the Court of the III Additional Sessions Judge. Section 409, so far as relevant runs thus: ''409 (2); At any time before the trial of the case or hearing of the appeal as fixed before the Additional Sessions Judge, a Sessions Judge may recall any case or appeal which he has made over to any Additional Sessions Judge. The only question in the present case is as to whether the trial of the case had started before the Court of the II Additional Sessions Judge. For if the trial of the case was started before the II Additional Sessions Judge, the District and Sessions Judge could not, in exercise of powers under Section 409 (2) Criminal Procedure Code withdraw the case from the file of the II Additional Sessions Judge, and send it to the file of the III Additional Sessions Judge. The word 'trial' has not been defined in the Code. All that the Coae defines is an inquiry under Section 2 (g), which defines inquiry as meaning every inquiry-other than trial conducted under the Code by a Magistrate or a Court. The Code of Criminal Proceedings taken in Court after a charge has been drawn up, and included punishment of the offender. " This definition was dropped in the later Acts of 1882, 1898 and 1923. It does not also occur in the Act of 1923. There is uniformity of judicial opinion that the word 'trial' has no fixed or universal meaning, and has to be considered with regard to the particular context in which it is used, and with regard to the scheme and purpose of the particular Act. See Pyare Dusadh v. Emperor, (A. I. R. 1944f. C. 1 ). Yeluchuri Venkata Chennaya and others v. Emperor, (A. I. R. 1920 Mad. 377 ). Ramjit and others v. The State, (A. I. R. 1959 All. 439 ). These views have received the stamp of approval of the Supreme Court in the case of State of Bihar v. Ram Naresh Pandey (A. I. R. 1957 S. C. 389), where the Supreme Court after referring to Strouts Judicial Dictionary and Wherlm's Lax Lexicon has held that the word 'trial'used in the Code of Criminal Procedure has no fixed meaning, and the meaning ascribed to it depends on the context, and the provision in which it is used. It would be profitable to refer Chapter XVIII of the Code for appreciat ing the true meaning ascribed to word 'trial' as occurring in Sec. 409 Criminal Procedure Code Chapter XVIII deals with the trial before a Court of Sessions as is the case here. Section 225 requires a Public Prosecutor to conduct every trial before the Court of Session. Section 226 of the Criminal Procedure Code sets out the procedure when the accused appears or is brought before the Court in persuance of the commitment made under Section 209. On the accused appearing before the Court, the Prosecutor has to open his case by setting out the charge brought against the accused, and state the evidence by which he propose to prove the guilt of the accused. The Sessions Judge then has to consider the record of the case and documents submitted by the prosecution, and after hearing the statement of the accused and the prosecution, the Judge, if he considers that there is no sufficient ground for proceeding against the accused, can discharge the accused after recording his reasons for doing so (Section 227 ). In the event of the Judge being satisfied that there are grounds for presuming that the accused has committed an offence, in case not exclusively triable by Court of Session, he has to transfer the case to the Court of the Chief Judicial Magistrate, and in a case which is exclusively triable by Court of Session, the Sessions Judge had to frame charge. The charge then has to be read out and explained to the accused, and he has to be asked whether he pleads guilty of the offence or claims to be tried. This procedure is contained in Section 228 of the Criminal Procedure Code. Then, in case the accused pleads guilty, a conviction is recorded under Section 229 of the Criminal Procedure Code. If he does not do so, or does not plead at all, or claims to be tried, the Judge has to fix a date for the examination of witnesses (See Section 230 Criminal Procedure Code ). One has to glean from these provisions as to when trial of Sessions case starts. If the Code contained the old definition of the word 'trial', the trial would start only nfter the charge had been framed and not earlier. This is what the learned counsel has contended, but in view of the fact that the Legislature had abandoned that definition, it will not be proper to be guided by the voices of past. It will be safer to seek indication from the provisions of Chapter XVIII of the Code. This method of interpreting the word 'trial' wherein it has not been defined in the statute, was used by the Supreme Court in the case of Harish Chandra Bajpai and another v. Triloki Singh and another (A. I. R. 1957 S. C. 441), a case arising under the Representation of Peoples Act, where it was held that the word 'trial' was a word which had no definite mean ing, and its meaning depends on the context in which it is used. Let us now scrutinize Chapter XVIII of the Code again. Section 225 of the Criminal Procedure Cods does not start the trial, for the relates to appoint ment of a public prosecutor to conduct the trial. Section 226 of the Code does, for this stage prosecutor opens his case, describes the charge against the accused and states what evidence he proposes to give against the accused to prove the guilt of the accused. This begins after the accused is brought before the Court, for till such time the accused is not brought before the Court, the case cannot be opened and afortorari the trial against the accused cannot begin, as there is no provision for exparte trial against an accused. Even in case of absconding accused all that the Court can do is to record evidence of witnesses under Section 299 of the Code, which can be used later when the accused is produced before the Court. Then, under Section 227 of the Code, the Court applies its mind to the record of the case consisting of the documents submitted by the Public Prosecutor, and the arguments addressed to it, and to decide whether the accused to be discharged or not. In case he decides to do so, he has to record his reason. In the event of its taking the view that there are grounds for presuming that the accused had committed an offence, it has to frame a chirge under Section 228 of the Criminal Procedure Code. The judicial function of the Court begins as soon as the public prosecutor opens his case, and produces documents in support of his case. Hearing arguments and considering documents produced by a party in the presence of the accused is the exercise of a judicial function, and once that is done the trial starts. In the present case it is not disputed that a charge had already been framed against the accused. This being so, the trial of the case had already been started, and the District and Sessions Judge could not in exercise of his powers under Section 409 of the Criminal Procedure Code transfer the case from the file of the II Additional Sessions Judge to that of the III Additional Sessions Judge. Counsel for the applicant referred to me a number of other cases on the question as to when a trial concludes, but no useful purpose would be served by referring to those cases, for they do not help in resolving the controversy. The application is accordingly allowed and the case is transferred to the Court of the II Additional Sessions Judge from the Court of the III Additional Sessions Judge, Nainital. .