get a fair and impartial trial is on the basis of the incident which
occurred on 30.07.2015 referred to above. According to the petitioner,
he overheard the conversation between the complainant and his son
while he was standing in the parking area that from the next date
onwards, the trial would commence and all the accused would be
convicted. After the said conversation was overheard by the petitioner
something transpired in the Court wherein in the absence of the
advocate on that day appearing for the petitioner, all of a sudden, the
date was fixed i.e. 05.08.2015. This incident led the petitioner to believe
that something is wrong and he would not get justice. It appears that
one of the grounds urged in the application filed by the petitioner under
Section 408 is quite curious. It says that the Presiding Officer is a
convicting Judge and he spares none. As such, the two grounds are quite
conflicting. It gives an impression that the accused is afraid of the
Presiding Officer being a convicting Judge and on the other hand,
indirectly he is trying to convey that the complainant is quite confident
that he would be able to secure conviction at any cost. The petitioner
definitely is in dilemma. Whether to term his apprehension as reasonable
and not the result of the reaction of a hypersensitive mind is the
question.
It is not in dispute that the Presiding Officer concerned has not
examined a single witness till this date. The witnesses examined so far
were all examined by the Predecessor in Office. The Presiding Officer
himself has also not indicated his disinclination to hear the matter. At
the same time, he has offered quite a stiff resistance to the plea of
transfer as the same is revealed from his remarks forwarded to the
Principal Sessions Judge. I am sure that the present Additional Sessions
Judge would have acted in a true sense of a Judicial Officer. But
nevertheless, to ensure that justice is not only done, but also seems to be
done and in the peculiar facts of the case, I feel that it will be
appropriate if the Principal Sessions Judge transfers the case to any
other Additional Sessions Judge in the same Sessions Division. I make it
abundantly clear that the transfer shall not be construed as casting any
aspersions on the learned Additional Sessions Judge.
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 4884 of 2015
With
CRIMINAL MISC.APPLICATION NO. 17138 of 2015
In
SPECIAL CRIMINAL APPLICATION NO. 4884 of 2015
CHANDRKANTBHAI BHAICHANDBHAI SHARMA
V
STATE OF GUJARAT & 1
CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 08/10/2015
1 By this petition under Article 227 of the Constitution of India, the
petitioner – the original accused No.7 calls in question the legality and
validity of the order dated 14.08.2015 passed by the learned Principal
Sessions judge, Kheda at Nadiad in the Criminal Miscellaneous
Application No.545 of 2015 arising from the Sessions Case No.291 of
2003.
2 The case of the petitioner may be summarized as under:
2.1 The petitioner is one of the accused persons against whom an
F.I.R. was lodged by the respondent No.2 herein before the Nadiad
Town Police Station being C.R. No.I286 of 2002 for the offence
punishable under Sections 147, 148, 149, 364(A), 120B, 447, 342 and
506(2) of the Indian Penal Code.
2.2 At the end of the investigation, the chargesheet was filed on
31.10.2002. The case on being committed to the Court of Sessions was
numbered as Sessions Case No.291 of 2003. By now, almost eighteen
witnesses have been examined. After completion of the examination of
the eighteen prosecution witnesses, the complainant preferred an
application vide Exhibit – 137 under Section 319 of the Code of Criminal
Procedure, 1973 for joining one Shri Natubhai Maganbhai Edanwala as
an accused in the sessions case. The said application came to be rejected
vide order below Exhibit – 137 dated 18.05.2006. Being dissatisfied with
the said order, the complainant preferred the Special Criminal
Application No.1444 of 2006 before this Court. The matter was heard
finally on 02.12.2011 and was ordered to be rejected. It appears that
being dissatisfied with the order passed by this Court in the Special
Criminal Application No.1444 of 2006, the complainant filed a Special
Leave Petition (Criminal) No.17262 of 2012 before the Supreme Court.
The Supreme Court vide order dated 11.01.2013 rejected the said S.L.P.
with an observation that it would be open for the complainant to file an
appropriate application under Section 319 of the Code, if at the end of
the examination of all the witnesses, some material is found to connect
the person sought to be arraigned as an accused with the alleged crime.
2.3 It is the case of the petitioner that between 2006 and 2013, the
complainant kept on seeking time before the Sessions Court only on the
ground of the pendency of the aforesaid proceedings.
2.4 It appears that the complainant once again filed an application
under Section 319 of the Code for arraigning Shri Natubhai Maganbhai
Edanwala as an accused in the trial relying on the examination of the
prosecution witnesses Nos.19 to 23. Such an application was allowed.
Shri Natubhai Maganbhai Edanwala, being dissatisfied with such an
order, preferred the Special Criminal Application No.1731 of 2013
before this Court and this Court has stayed the operation of the
impugned order.
2.5 It is the case of the petitioner that on 31.07.2015, the matter was
on Board before the 3rd Additional Sessions Judge, Kheda at Nadiad. On
that date, the petitioner was standing in the parking area meant for the
four wheelers. At that time, the petitioner could overhear some
conversation between the complainant and his Son and they were
discussing about the trial and were talking to each other that the matter
would be surely taken up for hearing from the next date onwards and all
the accused would definitely be convicted. According to the petitioner,
the Presiding Officer thereafter said something regarding the trial which
the petitioner correlated with the conversation he had overheard
between the complainant and his Son. It is the case of the petitioner that
he was quite disturbed with the attitude of the Presiding Officer on that
particular date.
2.6 Under such circumstances, referred to above, the petitioner moved
an application being the Criminal Miscellaneous Application No.545 of
2015 under Section 408 of the Code of the Criminal Procedure, 1973
before the learned Principal Sessions Judge, Kheda at Nadiad for transfer
of the sessions case to any other Court in the same Sessions Division.
2.7 It appears that after such an application was filed, the learned
Principal Sessions Judge called for the remarks of the concerned
Presiding Officer, and after taking into consideration the remarks as well
as the position of law discussed in the impugned order, thought fit to
reject the application filed by the petitioner for transfer of the sessions
case.
2.8 Being dissatisfied, the petitioner has come up with this petition.
3 Mr. Hriday Buch, the learned counsel appearing for the petitioner
vehemently submitted that the learned Principal Sessions Judge
committed an error in rejecting the application filed by the petitioner
under Section 408 of the Code for transfer of the sessions case to any
other Court in the same Sessions Division. He submitted that the learned
Judge committed a serious error in placing reliance on the two decisions
of this Court (1) in the case of Gambhirsinh Bhavsinh Padheriya vs.
State of Gujarat, 1993(1) GLR 649, and (2) Musa Mahmad Malek &
another vs. State of Gujarat, 1995(1) GLR 845. Mr. Buch submitted
that by placing reliance on the aforesaid two decisions, the learned
Judge committed an error in taking the view that once the trial
commences, then he has no power to transfer the case to any other
Court in the same Sessions Division in exercise of the power under
Section 408 of the Code.
4 Mr. Buch submitted that the accused has a reasonable
apprehension that a fair and impartial trial would not be held and the
ends of justice makes it expedient that the transfer should be ordered.
He submitted that it is of paramount importance that an accused should
have confidence in the impartiality of the Courts. He submitted that the
question should be considered from the point of view of the fear or
apprehension in the mind of the accused. It is the state of mind of the
accused which is to be seen and not the impression of the Court in
regard to any incident.
5 Mr. Buch submitted that the application merits consideration and
the impugned order be quashed.
6 Mr. Buch placed reliance on the decision of the Supreme Court in
the case of Satish Jaggi vs. State of Chhatisgarh and others [2007(3)
SCC 62] and one another decision of the Supreme Court in the case of
Ranjit Thakur vs. Union of India and others, [1987 (4) SCC 611].
7 On the other hand, this petition has been vehemently opposed by
Mr. Aftab Hussain Ansari, the learned advocate appearing for the
respondent No.2 – the original complainant and Ms. Hansa Punani, the
learned Additional Prosecutor appearing for the respondent – the State
of Gujarat. They both submitted that no error, not to speak of any error
of law could be said to have been committed by the learned Judge in
rejecting the application and passing the impugned order. They both
submitted that the apprehension expressed by the petitioner herein is
absolutely baseless. Such an apprehension must be reasonable and not
the result of the reaction of a hypersensitive mind. It must not be
indicative either of a desire on the part of the accused to create a
situation for claiming transfer of the case when the things are not going
his way or of unduly excessive sensitiveness.
8 They both submitted that the Criminal Court referred to in Section
408 covers only those Courts where the cases can be filed. The criminal
cases are usually filed in the Court of either the Chief Judicial Magistrate
or the Judicial Magistrate. Section 408 refers to those cases and has
nothing to do with the cases that might be transferred to the Chief
Judicial Magistrate or to the Assistant or Additional Sessions Judges
under Section 409. They both submitted that the Sessions Judge could
not have exercised his power under Section 408 in respect of a case
transferred from the Court of Sessions judge to the Court if the
Additional Sessions Judge had already commenced with the trial.
9 They both placed reliance on the judgment delivered by this Court
in the case of Jayesh Nadlal Shah vs. Jeetendrabhai Darji (Criminal
Miscellaneous Application (For Transfer) No.17081 of 2014 decided on
03.11.2014). They both submitted that there being no merit in this
petition, the same be rejected.
10 Having heard the learned counsel appearing for the parties and
having gone through the materials on record, the only question that falls
for my consideration is whether the learned Principal Sessions Judge
committed any error in passing the impugned order.
11 There are two issues which I need to consider in this matter. First,
the question of law whether the application under Section 408 of the
Code filed by the petitioner herein for transfer of the sessions case is
maintainable, and secondly, whether any case is made out by the
petitioner for transfer even if the application filed by him under Section
408 is held to be maintainable.
12 Before adverting to the submissions of the learned counsel, let me
have a cursory look at some of the provisions of the Code of Criminal
Procedure, 1973.
12.1 Section 6 falling in Chapter II speaks of classes of criminal cases.
Section 6 reads thus:
“6. Classes of Criminal Courts
Besides the High Courts and the Courts constituted under any law, other
than this Code, there shall be, in every State, the following classes of
Criminal Courts, namely:
(i) Courts of Session;
(ii) Judicial Magistrates of the first class and, in any metropolitan area,
Metropolitan Magistrates;
(iii) Judicial Magistrates of the second class; and
(iv) Executive Magistrates.”
12.2 Section 9 speaks of the Court of Sessions:
“9. Court of Session
(1) The State Government shall establish a Court of Session for every
sessions division.
(2) Every Court of Session shall be presided over by a Judge, to be
appointed by the High Court.
(3) The High Court may also appoint Additional Sessions Judges and
Assistant Sessions Judges to exercise jurisdiction in a Court of Session.
(4) The Sessions Judge of one sessions division may be appointed by the
High Court to be also an Additional Sessions Judge of another division,
and in such case he may sit for the disposal of cases at such place or places
in the other division as the High Court may direct.
(5) Where the office of the Sessions Judge is vacant, the High Court may
make arrangements for the disposal of any urgent application which is, or
may be, made or pending before such Court of Session by an Additional or
Assistant Sessions Judge, or, if there be no Additional or Assistant Sessions
Judge, by a Chief Judicial Magistrate, in the sessions division; and every
such Judge or Magistrate shall have jurisdiction to deal with any such
application.
(6) The Court of Session shall ordinarily hold its sitting at such place or
places as the High Court may, by notification, specify; but, if, in any
particular case, the Court of Session is of opinion that it will tend to the
general convenience of the parties and witnesses to hold its sittings at any
other place in the sessions division, it may, with the consent of the
prosecution and the accused, sit at that place for the disposal of the case or
the examination of any witness or witnesses therein.
Explanation:For the purposes of this Code, "appointment" does not include
the first appointment, posting or promotion of a person by the
Government to any Service, or post in connection with the affairs of the
Union or of a State, where under any law, such appointment, posting or
promotion is required to be made by Government.”
12.3 Section 10 speaks of the subordination of Assistant Sessions
Judge:
“10. Subordination of Assistant Sessions Judges
(1) All Assistant Sessions Judges shall be subordinate to the Sessions Judge
in whose Court they exercise jurisdiction.
(2) The Sessions Judge may, from time to time, make rules consistent with
this Code, as to the distribution of business among such Assistant Sessions
Judges.
(3) The Sessions Judge may also make provision for the disposal of any
urgent application, in the event of his absence or inability to act, by an
Additional or Assistant Sessions Judge, or, if there be no Additional or
Assistant Sessions Judge, by the Chief Judicial Magistrate, and every such
Judge or Magistrate shall be deemed to have jurisdiction to deal with any
such application.”
12.4 Section 194 speaks of the Additional and Assistant Sessions Judge
to try cases made over to them:
“194. Additional and Assistant Sessions Judges to try cases made
over to them
An Additional Sessions Judge or Assistant Sessions Judge shall try
such cases as the Sessions 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.”
12.5 Section 406 provides for the power of Supreme Court to transfer
cases and appeals:
“406. Power of Supreme Court to transfer cases and appeals
(1) Whenever it is made to appear to the Supreme Court that an order
under this section is expedient for the ends of justice, it may direct that
any particular case or appeal be transferred from one High Court to
another High Court or from a Criminal Court subordinate to one High
Court to another Criminal Court of equal or superior jurisdiction
subordinate to another High Court.
(2) The Supreme Court may act under this section only on the application
of the AttorneyGeneral of India or of a party interested, and every such
application shall be made by motion, which shall, except when the
applicant is the AttorneyGeneral of India or the AdvocateGeneral of the
State, be supported by affidavit or affirmation.
(3) Where any application for the exercise of the powers conferred by this
section is dismissed, the Supreme Court may, if it is of opinion that the
application was frivolous or vexatious, order the applicant to pay by way
of compensation to any person who has opposed the application such sum
not exceeding one thousand rupees as it may consider appropriate in the
circumstances of the case.”
12.6 Section 407 provides for the power of High Court to transfer cases
and appeals:
“407. Power of High Court to transfer cases and appeals
(1) Whenever it is made to appear to the High Court
(a) that a fair and impartial inquiry or trial cannot be had in any
Criminal Court subordinate thereto, or
(b) that some question of law of unusual difficulty is likely to arise, or
(c) that an order under this section is required by any provision of this
Code, or will tend to the general convenience of the parties or witnesses, or
is expedient for the ends of justice,
it may order
(i) that any offence be inquired into or tried by any Court not
qualified under sections 177 to 185 (both inclusive), but in other
respects competent to inquire into or try such offence;
(ii) that any particular case or appeal, or class of cases or appeals,
be transferred from a Criminal Court subordinate to its authority
to any other such Criminal Court of equal or superior jurisdiction;
(iii) that any particular case be committed for trial to a Court of
Session; or
(iv) that any particular case or appeal be transferred to and tried
before itself.
(2) 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 :
Provided that no application shall lie to the High Court for transferring a
case from one Criminal Court to another Criminal Court in the same
sessions division, unless an application for such transfer has been made to
the Sessions Judge and rejected by him.
(3) Every application for an order under subsection (1) shall be made by
motion, which shall, except when the applicant is the AdvocateGeneral of
the State, be supported by affidavit or affirmation.
(4) When such application is made by an accused person, the High Court
may direct him to execute a bond, with or without sureties, for the
payment of any compensation which the High Court may award under
subsection (7).
(5) Every accused person making such application shall give to the Public
Prosecutor notice in writing of the application, together with a copy of the
grounds on which it is made; and no order shall be made on the merits of
the application unless at least twentyfour hours have elapsed between the
giving of such notice and the hearing of the application.
(6) Where the application is for the transfer of a case or appeal from any
subordinate Court, the High Court may, if it is satisfied that it is necessary
so to do in the interests of justice, order that, pending the disposal of the
application, the proceedings in the subordinate Court shall be stayed, on
such terms as the High Court may think fit to impose :
Provided that such stay shall not affect the subordinate Court's power of
remand under section 309.
(7) Where an application for an order under subsection (1) is dismissed,
the High Court may, if it is of opinion that the application was frivolous or
vexatious, order the applicant to pay by way of compensation to any
person who has opposed the application such sum not exceeding one
thousand rupees as it may consider proper in the circumstances of the
case.
(8) When the High Court orders under subsection (1) that a case be
transferred from any Court for trial before itself, it shall observe in such
trial the same procedure which that Court would have observed if the case
had not been so transferred.
(9) Nothing in this section shall be deemed to affect any order of
Government under section 197.”
12.7 Section 408 provides for the power of Sessions Judge to transfer
cases and appeals:
“408. Power of Sessions Judge to transfer cases and appeals
(1) Whenever it is made to appear to Sessions Judge that an order under
this subsection is expedient for the ends of justice, he may order that any
particular case be transferred from one Criminal Court to another
Criminal Court in his sessions division.
(2) The Sessions Judge may act either on the report of the lower Court, or
on the application of a party interested, or on his own initiative.
(3) The provisions of subsections (3), (4), (5), (6), (7) and (9) of section
407 shall apply in relation to an application to the Sessions Judge for an
order under subsection (1) as they apply in relation to an application to
the High Court for an order under subsection (1) of section 407, except
that subsection (7) of that section shall so apply as if for the words "one
thousand rupees" occurring therein, the words "two hundred and fifty
rupees" were substituted.”
12.8 Section 409 provides for the withdrawal of cases and appeals by
the Sessions Judge:
“409. Withdrawal of cases and appeals by Sessions Judges
(1) A Sessions Judge may withdraw any case or 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 Sessions 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 withdraws or recalls a case or appeal under
subsection (1) or subsection (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 hearing, as the case
may be.”
12.9 Section 412 speaks of the reasons to be recorded:
“412. Reasons to be recorded
A Sessions Judge or Magistrate making an order under section 408,
section 409, section 410 or section 411 shall record his reasons for making
it.”
13 Keeping in mind the above referred provisions, I proceed to
answer the question whether the power under Subsection (1) of Section
408 of the Code can be exercised by the Sessions Judge to transfer a case
from one Additional Sessions Judge to any Additional Sessions Judge in
his Sessions Division, even if the trial has commenced?
14 A Division Bench of the Delhi High Court in the case of Avinash
Chander vs. State, 1983 Criminal Law Journal 595 held as under:
“I have not been able to quite see how, having once said that the Court of
Addl. Sessions Judge is a criminal court, does it then cease to be so under
S.408, Cr. P. C. and limit the power of the Sessions Judge exercisable
under that section? It is not possible by any principle of interpretation to
have read subsection (1A) as a proviso or qualification to the powers
available under subsec. (1C) of S.528. The new Code has split S.528 into
S.408 (old S.528 (1C)) and S.409 (old S.526 (1A)). That cannot be and
is not without any significance. Section 408 is the general power to be
exercised for the ends of justice while S.409 provides for a power more of
an administrative nature given to the Sessions Judge to withdraw any case
or appeal made over by him to the Addl. Sessions judge.”
(Emphasis supplied)
15 The aforenoted decision of the Delhi High Court was followed by a
Full Bench of the Allahabad High Court in the case of Radhey Shyam vs.
State of U.P. (1984 Allahabad Law Journal 666). It was held as under:
"It is necessary to point out that the power conferred on the Sessions Judge
under Section 409 (1), Cr.PC to withdraw any case or appeal from or
recall any case or appeal which he had made over to an Assistant Sessions
Judge or the Chief Judicial Magistrate subordinate to him, the power
conferred on the Chief Judicial Magistrate under Section 410 (1), Cr.PC to
withdraw any case from or recall any case which he has made over to any
Magistrate subordinate to him and to inquire into or try such case himself,
or refer it for inquiry or trial to any other such Magistrate competent to
inquire into or try the same, the power conferred on the Judicial
Magistrate under Section 410 (2), Cr.PC to recall any case made over by
him under Subsection (2) of Section 192, Cr.PC to any other Magistrate
and to inquire into or try such case himself and the power conferred on
District Magistrate or SubDivisional Magistrate under Section 11, Cr.PC
to make over, for disposal, any proceeding which has been started before
him, to any Magistrate subordinate to him and to withdraw any case
from, or recall any case which he has made over to, any Magistrate
subordinate to him, and dispose of such proceeding himself or refer it for
disposal to any other Magistrate, are all administrative powers in
connection with the distribution of business. These powers are distinct
from the judicial power of transfer conferred on the High Court and the
Sessions Judge to be exercised if expedient for the ends of justice."
(Emphasis supplied)
16 Sections 406, 407 and 408 respectively relate to the power of the
Supreme Court, High Court and Sessions Judge to transfer cases and
appeals. On the other hand, Sections 409, 410 (1) and (2) and 411
relate to withdrawal of cases or recalling of cases which had been made
over by the Sessions Judge, Chief Judicial Magistrate, Judicial Magistrate
and the Executive Magistrate, for being thereafter tried either by himself
or being made over to another Court for trial. The clear contrast in the
language employed by the Legislature in the two sets of section is
indicative of the difference in the nature of the power conferred
thereunder. I note below the differences :
(i) Sections 406, 407 and 408 use the words "whenever it is made to
appear" while referring to the power of the Supreme Court, High Court
or the Sessions Judge to transfer cases. Sections 409, 410 and 411
significantly do not use these words.
(ii) The captions of Sections 406, 407 and 408 speak of exercise of
'power' to transfer, whereas Sections 409, 410 and 411 do not speak of
'power' but merely refer to 'withdrawal' or 'recalling'.
(iii) Sections 406, 407 and 408 contemplate the 'power to transfer' being
exercised on an application by a 'party interested' (Sections 407 and 408
also contemplate the 'power to transfer' being used on a report of the
Lower Court or suo motu; and Section 406 contemplate the power of
transfer being used on an application by the Attorney General). These
Sections clearly imply a need for hearing before transfer. On the other
hand, Sections 409, 410 and 411 contemplate exercise of the power of
withdrawal/recalling cases in a routine manner in the day to day
administration. They do not contemplate any hearing to the parties
interested.
It is clear from the above that the power to be exercised under Sections
406, 407 and 408 is a judicial power to be invoked and exercised in the
manner stated therein. On the other hand, the power of withdrawing or
recalling of cases under Sections 409, 410 and 411 is an administrative
power, complementary to the administrative power of making over cases
vested in the Chief Judicial Magistrate/Magistrate and the Sessions
Judge under Sections 192 and 194 of the Code.
17 It is also clear that the power conferred in the Sessions Judge
under Section 408 is on the same level as the power conferred in the
High Court under Section 407 and the power under the two sections is
identical (except for two matters which are not relevant for my purposes
the first is while the power of the High Court extends over all Criminal
Courts subordinate to its authority, the power of Sessions Judge is
confined to Courts within its own Sessions Division; and the second is in
regard to the limit of compensation awardable for frivolous
applications). Therefore, if High Court has the power to transfer 'partheard'
cases under Section 407, the Sessions Court also will have the
power to transfer 'partheard cases', as the wording of the two sections
are the same. In fact, Subsection (2) of Section 407 places an embargo
on an application for transfer being filed before the High Court unless an
application for such transfer has been made to the Sessions Judge under
Section 408 and rejected by him. (See In Re: District and Sessions
Judge Raisen [2005 (3) RCR(Cri)779].
18 I may also give a fair idea about the scope of the administrative
power under Section 409(2) of the Code, which confers the power to
recall any case or appeal which the Sessions Judge has made over to an
Additional Sessions Judge, at any time before the trial of the case or the
hearing of the appeal having commenced before such an Additional
Sessions Judge.
19 By implication, it is clear that a Sessions Judge, in exercise of the
administrative power under Section 409 (2) may recall any case or
appeal made over by him to an Additional Sessions Judge, once the trial
of the case or hearing of the appeal has commenced. It is well settled
that 'trial' of a Sessions case commences with the framing of the charge.
But what is the position if the Additional Sessions Judge to whom the
case has been made over and before whom the trial of the case or
hearing of the appeal has commenced, is transferred to another Sessions
Division or has retired from service before the completion of the trial ?
20 Legislative intent behind Section 409 (2) is that where the trial of
the case has commenced or hearing of an appeal has commenced (for
convenience 'becomes partheard'), the case or the appeal should be
continued to be tried or heard by the same Judge before whom the trial
of the case or hearing of the appeal has commenced and there should be
no interference with the progress of the case or appeal and, therefore,
the administrative power of recalling should not be exercised. This
salutary principle is to ensure speedy trial and hearing. But when the
Additional Sessions Judge trying the case retires or resigns or dies or is
transferred out of the Sessions Division and the Court becomes vacant,
the case or appeal ceases to be a partheard case. A case or appeal can be
said to be partheard only when the trial of the case or hearing of the
appeal is capable of being continued by the Judge before whom the trial
or hearing has commenced. Where the Judge before whom the matter is
partheard, ceases to be a Judge or the Court falls vacant, the matter
ceases to be partheard matter before that Judge and the bar relating to
recalling of partheard matters, ceases to apply. It is clear from the
context in which Subsection (2) has been enacted, that it applies only to
cases where trial of the case or hearing of the appeal has commenced
before a particular Additional Sessions Judge and such Judge continues
to preside over the same Court or continues in the same Sessions
Division. If the Additional Sessions Judge is transferred to some other
Sessions Division or ceases to be a Judge on account of resignation,
retirement or death resulting in the Court becoming vacant, the
restriction placed on the power under Subsection (2) of Section 409 will
cease to apply and as a consequence the Sessions Judge can recall the
case or appeal under Section 409 (2). But where the Additional Sessions
Judge is transferred within the Sessions Division or is on leave or under
suspension, the restriction over the administrative power under Section
409 (2) may continue to exist. (See In Re: District and Sessions Judge
Raisen [2005 (3) RCR(Cri)779].
21 In view of the above discussion, the position may be summarized
thus :
(a) A Sessions Judge in exercise of judicial power under Section 408 of
the Code may transfer any case pending before any Criminal Court in his
Sessions Division to any other Criminal Court in his Sessions Division.
That would mean that he can transfer even those cases where the trial
has commenced from one Additional Sessions Judge in his Sessions
Division to another Additional Sessions Judge in his Sessions Division.
The transfer of a case under Section 408 of the Code being in exercise of
a judicial power, it should be preceded by a hearing to the parties
interested. Further, the reason or reasons why it is expedient for the
ends of justice to transfer the case, has to be recorded.
(b) The judicial power under Section 408 (1) and the administrative
power under Section 409 (1) and (2) are distinct and different and
Section 408 is not controlled by Section 409 (2). A Sessions Judge in
exercise of his administrative power under Section 409 may :
(i) withdraw any case or appeal from any Assistant Sessions Judge or
Chief Judicial Magistrate subordinate to him;
(ii) recall any case or appeal which he has made over to any Assistant
Sessions Judge or Chief Judicial Magistrate subordinate to him;
(iii) recall any case or appeal which he has made over to any Additional
Sessions Judge, before trial of such case or hearing of such appeal has
commenced before such Judge. and try the case or hear the appeal
himself or make it over to another Court for trial or hearing in
accordance with the provisions of the Code. No hearing need be granted
to any one before exercising such power. But the reason therefor shall
have to be recorded having regard to Section 412.
22 Thus, so far as the first question is concerned, I hold that the
application filed by the petitioner under Section 408 of the Code for
transfer is maintainable and the two decisions of this Court referred to
and relied upon by the learned Principal Sessions Judge have no
application in the present case.
23 In the case of G.B. Padheriya (supra), the issue before a learned
Single Judge of this Court was as under:
“Can the Sessions Judge withdraw a partheard case from the Additional
Sessions Judge in exercise of his purported powers under Sec. 399 of the
Criminal Procedure Code, 1973 (‘the Cr.P.C.’ for brief)? In the alternative,
can the Sessions Judge withdraw a partheard case from the Additional
Sessions Judge in exercise of his powers under Sec. 409 thereof ? These are
the main questions that have cropped up in this petition under Sec. 482 of
the Cr. P. C.”
23.1 In para 9, a learned Single Judge observed as under:
“It would be quite proper to look at Sec. 409 of the Cr.P.C. st this
stage. Under subsec. (2) thereof a Sessions Judge can recall inter alia any
case which he has made over to any Additional Sessions Judge at any time
before the commencement of the trial of the case. The learned Sessions
Judge could not have resorted to this provision of law for the simple
reason that the trial before the learned Additional Sessions Judge had
already commenced and the oral testimonies of the two witnesses were
recorded on 10th December, 1992. Once the trial of a case made over to an
Additional Sessions Judge commences, that case cannot be recalled by the
Sessions Judge in exercise of his powers under Sec. 409(2) of the Cr.P.C.”
23.2 It is evident from the above that the learned Single Judge
considered altogether a different issue and that too, one falling under
Section 409(2) of the Code. In the said case, the learned Single Judge
had no occasion to consider Section 408 of the Code.
24 In the case of Musa Mahammad Malek (supra), a learned Single
Judge of this Court considered Section 409 (1) of the Code and observed
as under:
“5... Subsec. (1) of Sec. 409 empowers a Sessions Judge to withdraw any
case or appeal, or recall any case or appeal which he has made over to any
Assistant Judge or Chief Judicial Magistrate subordinate to him. However,
reading subsec. (2) of Sec. 409, it becomes abundantly clear that the
Sessions Judge is empowered to recall any case or appeal, which he had
made over to any Additional Sessions Judge, only before the trial of the
case or the hearing of the appeal has commenced before the Additional
Sessions Judge. In other words, at any time before commencement of trial
of a case hearing of an appeal before the Additional Sessions Judge, power
to withdraw or recall any case or appeal is vested in the Sessions Judge,
power to withdraw or recall any case or appeal is vested in the Sessions
Judge. However, after commencement of the trial of a case or hearing of
an appeal, such a power is not left within the Sessions Judge. In this case
it is not in dispute that the charge has already been framed by the third
Additional Sessions Judge and an order has also been passed by the third
Additional Sessions Judge on an application directing the investigating
agency to produce certain evidence. That order has also been partly
complied with. Therefore, in the present case, the trial had already
commenced when the charge was framed. It was, therefore, not open to the
Sessions Judge to make over the same to Additional Sessions Judge. The
Supreme Court in Ratilal Bhanji Mithani v. State of Maharastra, AIR
1979 SC 94 has held that the trial in a warrant case starts with the
framing of charge; prior to it, the proceedings are only an inquiry.
Therefore, exercise of power under Sec. 409 of the Code by a Sessions
Judge after the commencement of the trial is not permissible. In this case,
as the trial had already commenced with the framing of charge, the
learned Sessions Judge had thereafter no power or authority under Sec.
409 of the Code to recall the case from the file of the third Additional
Sessions Judge.”
24 Thus, in the above noted case also, the issue was altogether
different and what was being considered is Section 409 of the Code.
25 I have already explained in details the fine distinction between
Sections 406, 407 and 408 compared with Sections 409, 410(1) and (2)
and 411 of the Code. I have already explained that the judicial power
under Section 408(1) and the administrative power under Section
409(1) and (2) are distinct and different and Section 408 is not
controlled by Section 409(2) of the Code.
26 I shall now proceed to answer the second question whether any
case has been made out for transfer or not. In the case of Jayesh
Nandlal Shah (supra), this Court had the occasion to consider the scope
of Section 407 of the Code and the circumstances in which a criminal
trial could be transferred to any other Court in the same Sessions
Division. After considering the various provisions, this Court held:
“It is quite explicit on plain reading of the provisions of Section 407
of the Code of Criminal Procedure that if the High Court is shown or if it is
spelt out to the satisfaction of the High Court that (i) a fair and impartial
inquiry or trial cannot be had in any criminal court subordinate thereto;
or (ii) that some question of law of unusual difficulty is likely to arise; or
(iii) that some of the provisions of Criminal Procedure Code will require
passing of such order for the convenience of the parties or witnesses; or
(iv) it is in the expediency of the larger interest of justice, the High Court
may pass order as incorporated under clauses (i) to (iv) of subsection(1)
of Section 407 of the Code of Criminal Procedure as quoted above.
A bare reading indicates that Section 407 enacted with a view to
enable the parties to criminal cases to make an application for transfer in
case that party apprehends that he cannot get fair and impartial enquiry
or trial. The elementary rule of interpretation is that 'Animus Imponentis'
i.e. intention of law givers has to be ascertained. At the same time, there is
another maxim 'Ut Res Magis Valeat Quam Pereat' which connotes that a
statute or any enacting provision must be construed to make it more
effective. (see AIR 1959 SC 356). The Parliament has employed the word
fair and impartial trial with obvious object that accused should not be
prejudiced. In common parlance, trial can be said to be fair if only when it
is conducted with honesty. In other words, where it is free from injustice,
prejudice and of favouritism. According to Collins Cobuild English
Language Dictionary (Collins London and Glasgow 1987 Edition page
509), the word 'fair' means reasonable according to generally accepted
standard about what is right and just. Next meaning given to the word
'fair' is that it gives the same or equal treatment to every one concerned.
The law requires that an application for transfer can be moved when the
applicant apprehends that he would not get equal treatment with the
opposite party or that the personal feelings of the court would influence his
judgment. The aforesaid provision emanates from a Latin maxim 'Actus
Curiae Neminem Gravabit' which means that an act of the court shall
prejudice no man. It is better to make a reference of American
Jurisprudence (Volume 21, 2nd Edition para 415) which deals with the
change of venue or scope of transfer application in criminal matters.
“The Courts are deemed to have inherent power to direct the
change of venue in order that an accused may have fair and
impartial trial. Change of venue can be had only upon some
ground specified in the Statute. The right of the accused to a change
of venue upon the ground of inability to obtain a fair trial in the
country where the indictment is found or because of local prejudice
and excitement is universally recognised. It is a fundamental
principle of our law that every person charged with crime shall
have a right to fair and impartial trial.”
It is well settled position of law that where the accused has a
reasonable apprehension that a fair and impartial trial or inquiry cannot
be had or where the ends of justice make it expedient, transfer should be
ordered. It is of paramount importance that party arraigned before the
Court should have confidence in the impartiality of the courts. It is equally
well settled that it is a duty of the High Court at all events to clear away
everything which might reasonably create suspicion and distrust in the
courts and so to promote and maintain in the public a feeling of
confidence in the administration of justice, which is so essential for social
order and security. It is of the fundamental importance that justice should
not only be done but should manifestly and undoubtedly be seen to be
done. However, at the same time, it is necessary to bear in mind that it is
not any and every apprehension in the mind of the accused that can be a
ground for transfer, but it should be a reasonable apprehension which the
High Court considered it reasonable for the accused as a reasonable person
to entertain in the circumstances of the case. Even the absence of bias or
prejudice, however, does not completely cover the issue. The question has
to be considered from the point of view of the fear or apprehension in the
mind of the accused and whether the High Court considers that the
accused as a normal and reasonable person could reasonably entertain the
fear or apprehension in the circumstances complained of.”
“To a certain extent, the learned counsel appearing for the accused
may be justified in submitting that in dealing with an application for
transfer, the Court has to consider not only the question, whether there
has been any real bias in the mind of the Magistrate against the applicant,
but also the additional question whether incidents may not have happened
which, though they may be susceptible of explanation and may have
happened without there being any real bias in the mind of the Magistrate,
are nevertheless such as are calculated to create in the mind of the accused
applicant a justifiable apprehension that he would not have an impartial
trial. It is the state of mind of the accused which is to be seen and not the
impression of the court in regard to the said incidents. However, as stated
above, the apprehension must, nevertheless, be reasonable and not the
result of the reaction of a hypersensitive mind. It must not be indicative
either of a desire on the part of the accused to create a situation for
claiming transfer of the case when things are not going his way or of
unduly excessive sensitiveness. The accused must not be unduly
imaginative to see bias where it cannot be reasonably seen from the
position which the accused occupies. Every case, thus, has to be dealt with
on its own peculiar facts and it is neither desirable nor possible to lay any
rigid rule which would serve as a straitjacket in all cases.”
27 In the case of Satish Jaggi (supra), the Supreme Court observed
as under:
“5. The law with regard to transfer of cases is well settled. This Court in
the matter of Gurcharan Dass Chadha v. State of Rajasthan (AIR 1966 SC
1418) held that a case is transferred if there is a reasonable apprehension
on the part of a party to a case that justice will not be done. This Court
said that a petitioner is not required to demonstrate that justice will
inevitably fail. He is entitled to a transfer if he shows circumstances from
which it can be inferred that he entertains an apprehension and that it is
reasonable in the circumstances alleged. This Court further held that it is
one of the principles of the administration of justice that justice should not
be done but it should be seen to be done. The court has further to see
whether the apprehension is reasonable or not. This Court also said that
to judge the reasonableness of the apprehension, the state of the mind of
the person who entertains the apprehension is no doubt relevant but that
is not all. The apprehension must not only be entertained, but must
appear to the court to be a reasonable apprehension.
6. It was further held by this Court in Mrs. Maneka Sanjay Gandhi and
Anr. v. Miss Rani Jethmalani (AIR 1979 SC 468) that assurance of a fair
trial is the first imperative of the dispensation of justice and the central
criterion for the court to con sider when a motion for transfer is made is
not the hypersensitivity or relative convenience of a party or availability of
legal services or any like grievance. Something more substantial, more
compelling, more imperiling, from the point of view of public justice and
its attendant environment, is necessitous if the court is to exercise its
power of transfer. This is the cardinal principle although the circumstances
may be myriad and vary from case to case. This Court, in the facts and
circumstances of the case, said that the grounds for the transfer have to be
tested on this touchstone bearing in mind the rule that normally the
complainant has the right to choose any Court having jurisdiction and the
accused cannot dictate where the case against him should be tried. It
further said that even so, the process of justice should not harass the
parties and from that angle the Court may weigh the cir circumstances.
7. In Abdul Nazar Madani v. State of Tamil Nadu (AIR 2000 SC 2293)
this Court stated that the purpose of the criminal trial is to dispense fair
and impartial justice uninfluenced by extraneous considerations. When it
is shown that public confidence in the fairness of a trial would be seriously
undermined, any party can seek the transfer of a case within the State
under Section 407 and anywhere in the country under Section 406 of the
Code. The apprehension of not getting a fair and impartial inquiry or trial
is required to be reasonable and not imaginary based upon conjectures
and surmises. If it appears that the dispensation of criminal justice is not
possible impartially and objectively and without any bias, before any
Court or even at any place, the appropriate Court may transfer the case to
another Court where it feels that holding of fair and proper trial is
conducive. No universal or hard and fast rules can be prescribed for
deciding a trans fer petition which has always to be decided on the basis of
the facts of each case. Convenience of the parties including the witnesses to
be produced at the trial is also a relevant consideration for deciding the
trans fer petition. The convenience of the parties does not necessarily mean
the convenience of the petitioners alone who approached the Court on
misconceived notions of apprehension. Convenience for the purposes of
trans fer means the convenience of the prosecution, other accused, if any,
the witnesses and the larger interest of the society.
8. In G.X. Francis v. Banke Bihari Singh (AIR 1958 SC 309) this Court felt
that where public confidence in the fairness of the trial is likely to be
seriously undermined under the circumstances of the case, transfer petition
could be allowed. On finding that "there is uniformity of testimony from
both sides about the nature of surcharged communal tension in that area,"
the Court found that the local atmosphere was not conducive to a fair and
impartial trial which was a good ground for transfer. The Court rejected
the contention of the petitioner therein regarding the wild allegations
made to the ef fect that no Court in the State of M.P. would be unbiased or
impartial for dispensing justice. In the peculiar facts and circumstances of
the case, the trial was transferred to an adjoining Court. The mere
existence of a surcharged atmosphere without there being proof of inability
for holding fair and impartial trial cannot be made a ground for trans fer
of a case. Alleged communally surcharged atmosphere has to be considered
in the light of the accusations made and the nature of the crime committed
by the accused seeking transfer of his case. It will be unsafe to hold that as
and when accusations are made regarding the existence of a surcharged
communal atmosphere, the case should be transferred from the area where
existence of such surcharged atmosphere is alleged.
9. The position was also examined in Pal Singh and Anr. v. Central
Bureau of Investigation and Ors.. In that case, considering the fact that
large number of witnesses had been examined and few more witnesses
were left to be examined, this Court set aside the order of the High Court
transferring the case from one Sessions Court to another. The High Court
was, therefore, held to be not justified in entertaining the petition for
transfer.
10. In this case, one thing which has to be kept in view is that the
Sessions Judge himself has not indicated his disinclination to hear the
matter. That is probably because he believes that the mere fact that his
brother is known to some political heavy weight cannot stand in his way
of discharging judicial function impartially without fear and favour. These
are the hallmarks of judicial system. A judicial officer in whatever capacity
he may be functioning has to act with the belief that he is not to be guided
by any factor other than to ensure that he shall render a free and fair
decision which according to his conscience is the right one on the basis of
materials placed before him. There can be no exceptions to this imperative,
but at the same time there should not be any scope given to any person to
go away with the feeling that the Judge was biased, however unfounded
the impression may be.
“7. The qualities desired of a Judge can be simply stated: "that if he
be a good one and that he be thought to be so". Such credentials
are not easily acquired. The Judge needs to have "the strength to
put an end to injustice" and "the faculties that are demanded of the
historian and the philosopher and the prophet". A few paragraphs
from the book "Judges" by David Pannick which are often quoted
need to be set out here:
"The Judge has burdensome responsibilities to discharge. He
has power over the lives and livelihood of all those litigants
who enter his Court. His decisions may well affect the
interests of individuals and groups who are not present or
represented in Court. If he is not careful, the Judge may
precipitate a civil war. Or he may accelerate a
revolution.....He may accidentally cause a peaceful but
fundamental change in the political complexion of the
country.
xx xx xx xx
Judges today face tribulations, as well as trials, not
contemplated by their predecessors. Parliament has
recognized the pressures of the job by providing that be fore
the Lord Chancellor recommends any one to the Queen for
appointment to the Circuit Bench, the Lord Chancellor 'shall
take steps to satisfy himself that the person's health is
satisfactory'........This seems essential in the light of the
reminiscences of Lord Roskill as to the mental strain which
the job can impose...........Lord Roskill added that, in his
experience, 'the workload is in tolerable: seven days a week,
14 hours a day'................
xx xx xx xx
He (Judge) is a symbol of that strange mixture of reality
and illusion, democracy and privilege, humbug and decency,
the subtle network of compromises, by which the nation
keeps itself in its familiar shape". (See Brij Mohan Lal v.
Union of India and Ors. (2002 (5) SCC 1)
11. We are sure that the present Sessions Judge would have acted in the
true sense of a judicial officer. But nevertheless to ensure that justice is not
only done, but also seen to be done and the peculiar facts of the case, we
feel that it will be appropriate if the High Court transfers the case to some
other Sessions Court in Raipur itself. We make it clear that the transfer
shall not be construed as casting any aspersion on the Learned Sessions
Judge. The Trial Court before whom the trial is to continue should ensure
that the trial is completed by the end of May, 2007. Needless to say, the
parties shall cooperate in the completion of the trial within the said time.”
28 In the case of Ranjit Thakur (supra), the Supreme Court observed
as under:
“The test of real likelihood of bias is whether a reasonable person,
in possession of relevant information, would have thought that bias was
likely and whether the authority concerned was likely to be disposed of
decide the matter only in a particular way. What is relevant is the
reasonableness of the apprehension in that regard in the mind of the
party. The proper approach for the judge is not to look at his own mind
and ask himself, however honestly, “Am I biased ?” ; but so look at the
mind of the party before him.”
29 The apprehension expressed by the petitioner that he would not
get a fair and impartial trial is on the basis of the incident which
occurred on 30.07.2015 referred to above. According to the petitioner,
he overheard the conversation between the complainant and his son
while he was standing in the parking area that from the next date
onwards, the trial would commence and all the accused would be
convicted. After the said conversation was overheard by the petitioner
something transpired in the Court wherein in the absence of the
advocate on that day appearing for the petitioner, all of a sudden, the
date was fixed i.e. 05.08.2015. This incident led the petitioner to believe
that something is wrong and he would not get justice. It appears that
one of the grounds urged in the application filed by the petitioner under
Section 408 is quite curious. It says that the Presiding Officer is a
convicting Judge and he spares none. As such, the two grounds are quite
conflicting. It gives an impression that the accused is afraid of the
Presiding Officer being a convicting Judge and on the other hand,
indirectly he is trying to convey that the complainant is quite confident
that he would be able to secure conviction at any cost. The petitioner
definitely is in dilemma. Whether to term his apprehension as reasonable
and not the result of the reaction of a hypersensitive mind is the
question.
30 It is not in dispute that the Presiding Officer concerned has not
examined a single witness till this date. The witnesses examined so far
were all examined by the Predecessor in Office. The Presiding Officer
himself has also not indicated his disinclination to hear the matter. At
the same time, he has offered quite a stiff resistance to the plea of
transfer as the same is revealed from his remarks forwarded to the
Principal Sessions Judge. I am sure that the present Additional Sessions
Judge would have acted in a true sense of a Judicial Officer. But
nevertheless, to ensure that justice is not only done, but also seems to be
done and in the peculiar facts of the case, I feel that it will be
appropriate if the Principal Sessions Judge transfers the case to any
other Additional Sessions Judge in the same Sessions Division. I make it
abundantly clear that the transfer shall not be construed as casting any
aspersions on the learned Additional Sessions Judge.
31 In the result, this petition is allowed. The impugned order is
hereby quashed. The application filed by the petitioner under Section
408 of the Code at Exhibit – 6 is hereby allowed. The Principal Sessions
Judge shall transfer the Sessions Case No.291 of 2003 to any other Court
of the learned Additional Sessions Judge in the same Sessions Division at
the earliest. The learned Additional Sessions Judge who would be
assigned the sessions cases shall see to it that the trial is completed at
the earliest, preferably within a period of six months from the date of
receipt of the writ of this order. Rule is made absolute.
32 In view of the order passed in the main matter, the connected
Criminal Miscellaneous Application No.17138 of 2015 is also disposed
of.
(J.B.PARDIWALA, J.)
FURTHER ORDER
After the order is pronounced, Mr. Aftabhussain Ansari, the
learned advocate appearing for the respondent No.2 – original
complainant prays for stay of the operation of the order. In view of what
is stated above, the prayer is declined.
(J.B.PARDIWALA, J.)
chandresh
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