KAUSHAL KISHORE Vs. STATE OF U P

JUDGEMENT

(1.) This is an application 407, Cr. P.C., seeking transfer of Sessions Trial No. 258 of 1986, State v. Kaushat and others to the court of Sri A.B. Shukla, Fourth Additional Sessions Judge, Etah, on the grounds; that in the aforesaid case charges were framed by Sri A.B. Shukla, the then Fifth Additional Sessions Judge, Etah, on 13-11-1986 and he fixed the case for evidence for 2nd and 3rd December, 1986. Though Sri Shukla was thereafter transferred in the same sessions division as the Fourth Additional Sessions Judge, the case remained with him as part heard, but the District and Sessions Judge transferred the aforesaid case on 12-1-1987 on the application Smt. Krishna Devi dated 9-1-1987 to Seventh Additional Sessions Judge, Etah, and hence learned counsel for the applicant has contended that the order of the Sessions Judge was improper, illegal and without jurisdiction and was liable to be set aside. The learned counsel for the applicant has also contended that Smt. Krishna Devi had no locus standi to move the transfer application dated 9-1-1987.

(2.) I have heard the learned counsel on either side and have perused the affidavit. Smt. Krishna Devi is a witness in the aforesaid case. It was her husband who was done to death and the first information report was lodged by her son Dhananjai. Under section 407(2), Cr. P.C., the High Court may act either on the report of the lower court or on the application of a party interested or on its own initiative. Smt. Krishna Devi is definitely a party interested in the case and, therefore, had every locus siandi to move the transfer application.

(3.) There can be no controversy with the decision of a case in Punjab Singh v State, that the jurisdiction of a Judge does not cease by mere change in his designation, but in the present case, I am of the opinion that Sri A.B. Shukla cannot be held to be a Judge who had heard and recorded any evidence in this case within the meaning of section 326, Cr. P.C. It is only when a Judge or a Magistrate has heard and recorded the whole or part of the evidence in a case that the case becomes part heard with that Judge or Magistrate and is in such a case that his jurisdiction does not cease merely by a change in his designation. Sri A.B. Shukla as admittedly not recorded any evidence in this case. He had only framed charges in this case and mere framing of charge does not amount to recording of evidence in the case. The relevant portion of section 326(1), Cr. P.C. reads as under: Whenever any Judge or Magistrate after having heard and recorded the whole or any part of evidence in an inquiry or trial. The words after having heard and recorded whole or any part of the evidence clearly indicate that the Judge or Magistrate contemplated in this case is that the Judge Magistrate who has recorded whole or any part of the evidence in the case. When a Judge or Magistrate frames charge in a case under section 228, Cr. P.C., he does not record any evidence in the case. In fact, the recording of evidence in a case starts when the trial against an accused commences and the trial commences not with the framing of charge but immediately after it. The purpose of a charge framed by a court is: (i) only to tell the accused the matter with which he is charged, (ii) to convey to him what actually the prosecution intends to prove and (iii) the matter which he will have to face at the trial. Framing of charges does not, therefore, amount to recording of evidence in the trial which he will have to face at the trial. Framing of charges does not, therefore, amount to recording of evidence in the trial, which in fact follows after the charge is read over to the accused.