BHOLA PRASAD Vs. STATE

JUDGEMENT

(1.) This is an application Under Section 407(1)(c)(ii) read with proviso to Sub-section (2) of the said section of the Code of Criminal Procedure, 1973 (hereinafter to be referred to as the Code) for retaining T. Rule 7 of 1966 and T. Rule 2 of 1968 in the file of Shri P. N. Singh, Special Judge, Muzaffarpur. The application arises in the following circumstances.

(2.) The petitioner was suspended in 1961. In 1966 charge-sheet was submitted against him. Charges were framed against the petitioner Under Sections 409 and 477A of the Indian Penal Code, 1860 read with Section 5 (1)(c) and (d) and Section 5(2) of the Prevention of Corruption Act, 1947. Twenty-eight prosecution witnesses have been examined and only two police witnesses, who had partially investigated the case, remained to be examined. Thereafter, district of Muzaffarpur was bifurcated into three parts. In May, 1973 the trial court wrote to the Sessions Judge, Mazuffarpur, for transferring the cases aforementioned to the Special Judge, Sitamarhi as the cases arose within the jurisdiction of the Special Judge, Sitamarhi, On coming to know of this fact, the petitioner moved the Sessions Judge, Muzaffarpur, for refraining from transferring the cases to the file of the Special Judge, Sitamarhi. The matter was heard by the Sessions Judge, Muzaffarpur and, although he was of the view that the transfer of the cases from the file of the Special Judge, Muzaffarpur, to the Special Judge, Sitamarhi, would entail hardship to the petitioner, yet he refused to direct that the Special Judge, Muzaffanpur, would try the cases in view of the provision of Section 7(2) of the Criminal Law Amendment Act. He, therefore, dismissed the application filed by the petitioner by his order dated 20-12- 76. Being aggrieved by that order, the petitioner has moved this Court for setting aside the order of the Sessions Judge, dated 20-12-76.

(3.) The provisions contained in Section 407 of the Code are very wide. A similar question came up for consideration before the Supreme Court in Gurcharan Dass Chadha v. State of Rajasthan . That case related to the scope of Section 527 of the Code of Criminal Procedure, 1898, which has now been numbered as Section 406 of the Code of 1973. It was laid down in that case that the provisions contained in Section 7 (2) of the Criminal Law Amendment Act could not curtail the power of the Supreme Court in transferring case from one court to another if it was expedient for the ends of justice. On a parity of reasoning, the power of the High Court cannot be curtailed by the provisions of the Criminal Law Amendment Act. Section 407(1)(c) of the Code provides that the High Court may transfer a case whenever it is made to appear that it is expedient in the ends of justice. It cannot be doubted that the trial having started about 7 years ago and having been almost complete but for examination of the two prosecution witnesses, it would be in the ends of justice to allow the cases to be tried by the Special Judge, Muzaffarpur. Transfer will entail hardship to the party in the sense that he will have to engage new counsel who will have to be briefed afresh in regard to the entire case. To allow the cases to be heard by the Special Judge of Muzaffarpur will also be convenient for the court since Shri P. N. Singh, Special Judge, Muzaffarpur, has heard the entire cases and is conversant with the facts involved therein. I am, therefore, of the view that it will be in the ends of justice that the cases should be tried by Shri P. N. Singh, Special Judge, Muzaffarpur.