PRITAM SINGH Vs. MANMOHAN SINGH

JUDGEMENT

(1.) The petitioner has filed this petition to seek transfer of the case which was pending before Sh.Manjinder Singh, Addl. Sessions Judge, Hoshiarpur, to any other Court in the interest of justice. Earlier, the petitioner had filed an application before Sessions Judge, Hoshiarpur for transfer of this case to any other Court at Hoshiarpur. Accepting the prayer, the Sessions Judge, had transferred the Case to the Court of Sh.J.S.Bhinder, Addl. Sessions Judge, Hoshiarpur for trial and disposal in accordance with law. Parties were directed to appear before the Court of Sh.J.S.Bhinder, on 21.02.2012.

(2.) The case was then listed before Sh.J.S.Bhinder, Addl. Sessions Judge, Hoshiarpur, who vide order dated 26.03.2012 sent the case back to Sessions Judge, Hoshiarpur, stating that the same appears to have been transferred inadvertently. Apparently, the Court was of the view that after commencement of the trial the case could not have been transferred and this could only be done by High Court. Sessions Judge, Hoshiarpur thereafter observed that the case was transferred inadvertently to the Court of Sh.J.S.Bhinder, Addl. Sessions Judge, Hoshiarpur and has given liberty to the petitioner to move before the appropriate forum for transfer of this case. It is in this background that the petitioner has now filed this petition for transfer of this case.

(3.) Sessions Judge, Hoshiarpur as well as Addl. Sessions Judge, apparently have not properly considered the legal position as would emerge from Sections 408 and 409 Cr.P.C. The orders have been passed by both the officers by just observing that the order of transfer was inadvertently passed. Apparently, both the Courts are of the view that case cannot be transferred by a Sessions Judge after commencement of the trial. This issue recently arose before this Court and has been dealt with in detail while deciding Criminal Misc.No.M-2621 of 2012 (Kamaldeen versus State of Punjab) on 03.04.2012. After making reference to various judgments, it is viewed in Kamaldeen's case that Sessions exercise judicial power under Section 408 Cr.P.C. and can transfer cases in the same session division even after commencement of the trial. The relevant observations are as under:-