ABDUL HAMID Vs. STATE OF U P

JUDGEMENT

(1.) This is a petition un der Section. 407 Cr. P. C. The. accused are the applicants.-They pray that the Sessions Judge, Allahabad be directed to send the record of S. T. No. 418 of 1978, State v. Abdul Hamid and others, pending in the court of HI Addl. Sessions Judge to the Court of IV Addl. Sessions Judge. The circumstances leading upto this pe tition are as follows:- The case was committed to the court of Sessions, and the Sessions Judge transferred it to the court of IV Addl. Sessions Judge in the year 1979. Sri Govind Prasad was the Presiding Officer of that court. Sri Go vind Prasad framed the charges. It was submitted that by the framing of charges the case became part-heard with him. Sri Govind Prasad thereafter died and Sri V. K. Sircar was posted as IV Addl. Sessions Judge in his place. Sri V. K. Sircar IV Addl. Sessions Judge, did not commence any proceedings in the case, only the file of the case lay in his court. The Sessions Judge, by an order, transferred the case to the court of III Addl. Sessions Judge, which is now presided over by Sri D. C. Asarwal. The petitioners have challenged the or der of transfer of the case from the court of IV Addl. Sessions Judge to the court of III Addl. Sessions Judge on the ground that the proceedings having commenced in the court of IV Addl. Sessions Judge, it could not be transferred to the Court of III Additional Sessions Judge. It was suggested that since the case was part-heard in the court of IV Addl. Sessions Judge, the Sessions Judge had no power to transfer it from that court. Learned coun sel invited my attention to sub-section (2) of Section 409 of the Code of Criminal Pro cedure and contended that the transfer was in breach of that provision, and accordingly bad in law. Section 409 deals with the with drawal of cases by the Sessions Judge and reads: "409 (1 ). A Sessions Judge may with draw any case of appeal from, or recall any case or appeal which he has made over to, any Assistant Sessions Judge or Chief Judicial Magistrate subordinate to him. (2) At any time before the trial of the case or the hearing of the appeal has commenced before the Additional Ses sions Judge, a Sessions Judge may recall any case or appeal which he has made over to any Additional Sessions Judge. (3) Where a Sessions Judge with draws or recalls a case or appeal under sub-section (1) or sub-section (2), he may either try the case in his own court or hear the appeal himself, or make it over in accordance with the provisions of this Code to another court for trial or he aring as the case may be". The allotment of a case by the Sessions Judge to the court of an Addl. Sessions Judge is provided for by Section 194, Code of Criminal Procedure. It states that an Additional Sessions Judge or Assistant Ses sions Judge shall try such cases as the Ses sions Judge of the Division may. by general or special order, make over to him for trial, or as the High Court may, by special order, direct him to try. The contention of the learned counsel was that as the trial of the case had commenced in the court of IV Addl. Sessions Judge, the Sessions Judge had no power to recall or transfer the case from that court, as it was a part-heard case, has no force. A case is part heard by an officer or a Judge and not by a court. By sub-section (2) of Section 409 a Session Judge may not recall any case trial of which has commenced before the Addl. Sessions Judge. Three conditions have to be satisfied to attract the restriction on re call: (i) that the trial of a case has com menced i. e. the process of trial is conti nuing; (ii) that the trial has been commenc ed by the Addl. Sessions Judge i. e. by a particular Addl. Sessions Judge; (iii) that the commenced trial is be fore the Additional Sessions Judge i. e. it is pending before him. The intention of the Legislature seems to be that if a trial has been commenced by a particular Sessions Judge and is continu ing before him, the case which is part heard by him may not be transferred by the Ses sions Judge. It is not a mere commencement of a trial but the commencement of it before a particular Sessions Judge which attracts the provisions of sub-section (2) of Section 409. The provision does not merely say "at any time before the trial of the case or the hear ing of the appeal has commenced" but states further that it is before the Additional Ses sions Judge. This clearly contemplates the presence of the Addl. Sessions Judge to con tinue the case. If the particular Addl. Ses sions Judge before whom the case had com menced has either been transferred outside the Sessions Division or has died, the res triction imposed by sub-section (2) of Sec tion 409 would not come into play. Learned counsel then submitted that, if the particular Addl. Sessions Judge was not available in the Sessions Division, sub-sec tion (2) of Section 409 would be inapplicable and the Sessions Judge would then have no power to recall a case. This regimen is fallacious and devoid of any merit. Sub section (2) of Section 409 which deals with the power of the Sessions Judge to recall a case from the court of an Additional Ses sions Judge, by its first part, places a res triction on that power which otherwise is absolute. The second part of sub-section (2) of Section 409 gives the power of re call to the Sessions Judge and states ". . . . a Sessions Judge may recall a case at any time 'which is hedged in by the restriction contained in the first part which states' be fore the trial of the case or the appeal has commenced before the Additional Sessions Judge. " The Sessions Judge thus can re call a case at any time before an Addl. Sessions Judge has commenced the proceed ings and is available to continue it. It is not only the commencement of the proceed ings but the seizing of it by the Additional Sessions Judge which attracts the restriction contained in sub-section (2 ). In the instant case, the Judge who commenced the pro ceedings died. His successor did not com mence any proceeding. The Sessions Judge was thus fully competent to transfer the case to another court. Hon'ble C. S. P. Singh, I. , in Dilshad v. State Cr. Misc. Transfer Application No. 2581 of 1980, went to the ex tent of observing that under Section 408 of the Code of Criminal Procedure, a Session Judge could transfer even a part-heard case. He observed: "the powers under Sections 408 and 409 are distinct powers, and, although an order of transfer results in withdrawal a case from a court, the Act seems to draw a distinction between these two po wers, for, although the Sessions Judge can exercise his powers under Section 408 at any stage of the case, he cannot do so while exercising powers under Section 409. Inasmuch as the legislature has made separate provision for the exercise of these two jurisdictions and hedged in one, qua-Additional Sessions Judges, by the rider that the power of withdrawal can be exercised only in case the trial or the hearing of the appeal has not started while it has imposed no limitation in the case of other courts, it is not possible to read Sec tion 408 as being subservient to Section 409. " It is not necessary to go that far or dis cuss that question in the instant case. Under Section 409 itself, the Sessions Judge had the power to transfer the instant case. The petition fails and is dismissed. .