Himachal Pradesh High Court
State vs Y.V. Mehra And Ors. on 14 May, 1987
Equivalent citations: 1988CRILJ1488
JUDGMENT R.S. Thakur, J.
1. This Criminal Misc. Petition (M) under Section 482 read with Section 397/401 of the Cri. P.C. has been directed against the two orders passed by the learned Sessions Judge, Kangra Sessions Division, Camp at Chamba, dated Dec. 11, 1985andJan.7,1986,inSessionsCaseNo. 11 1985, filed on behalf of Radhasoami Satsang (Beas), (hereinafter referred to as the Satsang), through its local Secretary at Dalhousie. Shri Tara Singh. '.
2. The fact giving rise to this petition are more or less undisputed. The Satsang is a religious denomination with its headquarters at Beas in the State of Punjab and it owns, inter alia; land and buildings at MotiTibba in Dalhousie town, Himachal Pradesh, which property appears to be in the charge of the Local Secretary of the Satsang Shri Tara Singh, the petitioner herein.
3. On July 3, 1984, at 9.45 p.m. said Tara Singh lodged a report in the police station Dalhousie, wherein he alleged that the respondents (accused) Y.V. Mehra and others formed an unlawful assembly and after removing the fence which the Satsang.had erected on the boundary line of its land and that of a High School at Mod Tibba, trespassed into the land of the Satsang where a construction of Satsang Hall was going on and not only demolished the structure of which the walls had been constructed up to the height of 13 feet and which was ready to be covered by a slab but also set fire to 15 doors and windows which were lying stacked over there for fixture in the new construction. It was further alleged that thereafter this unlawful assembly also took out certain timber of the Satsang kept in a shed and set fire to it. There were as many as 32 labourers working on that construction work at that time who were driven away by these respondents (accused) by pelting stones at them which resulted in injuries to some of them and when these labourers took shelter in the nearby house of the Satsang named Ellismere. the respondents (accused) threw stones at the said house thus breaking its window panes and also damaging car of the Satsang over there.
4. On this a case was registered against the respondents (accused) in the said police station and after investigation, they were challaned for the offences under Section 435, 436, 147, 149,447,448.506, 323,379 and 380 IPC. The case against the respondents was ultimately committed to the Courtof Sessions Judge at Dharamshala and the learned Sessions Judge assigned the same to the Additional Sessions Judge (I). at Dharamshala. for disposal.
5. It may also be clarified here that the said Sessions Judge at Dharamshala and the Additional Sessions Judge (I), hold jurisdiction over the Sessions Division Kangra which consists of the districts of Kangra and Chamba with headquarters at Dharamshala. So far as the cases pertaining to Chamba district are concerned, the two Judges used to go on circuit to the district headquarters at Chamba for disposal thereof.
6. The High Court, it appears, then found it expedient that both the Sessions Judges should not go on circuit to dispose of Chamba cases turn by turn and it was thus decided that the Additional Sessions Judge (I) at Dharamshala should be stopped from going on circuit to Chamba and a communication in this behalf was addressed to the Additional District and Sessions Judge (1), Dharamsala. Simultaneously an order dated Nov. 6, 1985, under the signature of the Registrar (Vigilance) was also issued by the Himachal Pradesh High Court whereby all the criminal and civil cases pertaining to Chamba district pending in the Court of the Additional District and Sessions Judge (I), Dharamsala stood transferred forthwith to the Court of the District and Sessions Judge, Dharamsala. for disposal in accordance with law, in camp at C hamba.
7. In the instant case, it transpires from 'i he record, that prior to the aforesaid order of the High Court, the learned Additional Sessions Judge (1) had taken up this case on Oct. 19, 1985, camp at Chamba when he heard the arguments at pre-charge stage under Sections 226 and 227 of the Cri. P.C. and then adjourned the same to Dec. 11, 1985, for further arguments on charge. However, since this case along with others stood transferred to the learned Sessions Judge, meanwhile, by virtue of the order dated Nov. 6, 1985, the learned Sessions Judge thereafter took up this case on Dec. 11, 1985 in camp at Chamba. On the said date an objection was taken on behalf of the petitioner before the Court that since the trial in the instant case had commenced in the Court of the Additional Sessions Judge (1), Dharamshala, the Sessions Judge had no jurisdiction to recall the same as this was violation of the provisions of Section 409 of the Cri. P.C. and request was made that it should again be made over to the learned Additional Sessions Judge, (I), Dharamsala, for disposal.
8. The learned Sessions Judge, however, repelled this contention and held that since the case had come before him for disposal as a result of an order of transfer passed by the High Court, he had jurisdiction to try the same and the provisions of Section 409 of the Cr. P.C. do not come into the picture. This order was passed by the learned Sessions Judge on the same date that is, Dec. 11, 1985 and the case was adjourned to Jan. 7, 1986 for arguments on the point whether the respondents (accused) were liable to be charge-sheeted or discharged. On Jan. 7,1986, the learned Sessions Judge after hearing the arguments held that since no prima facie case against the respondents (accused) was made out under Sections 436 and 450 of the I.P.C. the case was not exclusively triable by the said Court. As regards the other offences, since the same were triable by the Chief Judicial Magistrate, he transferred the case for trial to the Chief Judicial Magistrate, Chamba, with the direction to frame charges against the accused after consideration of the record of the case and then dispose of the case in accordance with the procedure laid down for warrant cases on police report and the parties were directed to attend the transferee Court on Jan. 15. 1986.
9. As already stated, the' petitioner has challenged both these orders in this petition. The petition is thus of an omnibus character. Before the Sessions Judge, the case of the petitioner was that since the trial in the case had commenced before the Additional Sessions Judge (I), the Sessions Judge had no jurisdiction to recall the case to his file. W hen, however, it was found that the order which resulted in the transfer of this case has emanated not from the Sessions Judge but from the High Court, the petitioner has impugned the order of the High Court as well which is dated Nov. 6, 1985. The attack on this order is two fold, namely; (a) that the order on the very face of it is non est and a nullity since it purports to have been issued by the Registrar (Vigilance) under his signatures without disclosing therein the competent authority under whose orders and authorisation the same has been issued. Be it stated at this stage that during the course of the hearing of arguments, the concerned record of the High Court was produced for the inspection of the Court and the Court was satisfied that this order had the prior approval of the Hon'ble the Chief Justice and before the conclusion of the arguments, an affidavit was also filed by the Registrar (Vigilance), (hereinafter referred to as respondent No. 18) to the effect that the order with regard to the transfer of the cases pertaining to Chamba District on the file of the Additional District and Sessions Judge (I) had been approved by the Hon'ble the Chief Justice on Nov. 4, 1985 and it was as a result of this approval that the impugned order dated Nov, 6, 1985 was issued.
10. The learned Counsel for the petitioner has, however, vehemently argued that (b) even if it be so, the impugned order was still a nullity as the Hon'ble the Chief Justice alone could not pass such an order on the administrative side. His contention was that the order with regard to the transfer of cases on the file of Additional Sessions Judge (1), Dharamsala, qua the pending criminal cases should have been passed by the High Court on the judicial side under the provisions of Section 407 of the Cr. P.C. alone. He has further contended that assuming, without conceding, that such an order could validly be passed by the High Court on the administrative side, then in that event, the Hon'ble the Chief Justice alone had no authority to do so and that it ought to have been passed by a quorum of at least three Judges of the High Court.
11. The learned Counsel for the respondent No. 18, has on the other hand repelled this contention and argued that the Hon'ble the Chief Justice alone was quite competent to pass an order of this nature having regard to the provisions of Section 407 of the Cr. P.C, Rule 1 of Ch. 9A (Vol. V) of the High Court Rules and Orders, Clause 22 of the Letters Patent and Arts. 227 and 235 of the Constitution of India.
12. In view of these rival contentions, the questions which arise for determination of this Court are:
(1) whether the trial of the case in q uestion had commenced in the court of the Additional Sessions Judge (I) Dharamsala at the time of the impugned order of transfer and if so to what effect?
(2) whether the impugned order of Nov. 6, 1985 is non est and a nullity and; in case this point is decided in the negative:
(3) whether the order of the Sessions Judge, Dharamshala dated January 7, 1986, is liable to be set aside?
13. So far as question No. 1 is concerned, even the learned Counsel for the petitioner has conceded that since this order of transfer dated Nov. 6, 1985, has emanated from the High Court, this question has become merely of academic nature. The learned Counsel, however, has still emphasised that the trial of this case before the learned Additional Sessions Judge (I), Dharamshala had commenced and, therefore, the Sessions Judge had no jurisdiction to recall this case to his file at that stage. Though this point is no longer in issue in the instant petition, it may, however, be stated that this contention of the learned Counsel is without any substance. This Court had pointedly drawn the attention of the learned Counsel for the petitioner during the course of arguments to a Division Bench ruling of the Calcutta High Court, Manoj Majumdar v. State of West Bengal 1984 Cri LJ 28, wherein this point was directly at issue and the learned Judges had held that the trial commences as soon as the charge is framed and the plea of the accused is taken and that the recalling of the case by the Sessions Judge to his file thereafter is without jurisdiction in view of the provisions of Section 409 of the Cr. P.C. In other words it is clear that before a charge is framed against the accused and his plea is recorded, it cannot be said legally that the trial has commenced and before this stage is reached, the Sessions Judge even while acting under the provisions of Section 409 of the Cr. P.C. can recall the case pending before the Additional Judge which he might have earlier assigned to him under Ithe provisions of Section 194 of the Cr. P.C.
14. The learned Counsel for the petitioner has contended that this ruling does not lay down good law. His contention is that this position of the law could be said to be obtaining under the old Criminal Procedure Code of 1898 (hereinafter referred to as the old Code), since therein elaborate procedure for an enquiry was laid down by way of committal proceedings when evidence of the prosecution witnesses used to be recorded and thereafter the committing court either discharged the accused or framed the charge against him and then committed him to stand his trial before the Court of Session and as soon as the accused appeared before the Court of Session, the Court did nothing but read out and explain the charge to the accused as framed by the committing Court and the accused used to be asked whether he pleaded guilty to the charge or claimed to be tried. That under the Cr. P.C. 1973 (hereinafter referred to as the new Code), this procedure has been done away with and now all that the committing court is required to do is to supply certain documents to the accused and then if it appears to the Magistrate that the offence is triable exclusively by the Court of Session, he has to commit him to the court of Session and under Ch. XVIII of the new Code the trial, according to the learned Counsel, commences when the Public Prosecutor and the accused appear before the Court and thereafter the Sessions Judge himself is required to hear the arguments of both sides and then either discharge the accused or frame the charge against him and then record his plea.
15. There is no doubt that in the new Code the old procedure regarding Sessions trial has been radically changed in order to simplify the same and under the new Code no evidence is required to be taken in the pre-charge stage in a case initiated on police report and the Court is required only to consider the record of the case and the documents submitted therewith and after hearing both the parties, has to decide whether a prima facie case is made out against the accused or he is liable to be discharged and where the Sessions Judge finds that there are grounds for presuming that the accused has committed an offence but the same was not exclusively triable by him, he may frame a charge against the accused and then transfer the same for trial to the Chief Judicial Magistrate to try it as a warrant case. But, where he finds that the offence was exclusively triable by him he shall proceed to frame in writing the charge against him and record his plea.
16. The learned Counsel for the petitioner has cited certain ruling of the Supreme Court and other High Courts to make out his point that those courts have nomenclatured the proceedings which are undertaken by the Sessions Judge even at the pre-charge stage, namely, consideration of the record of the case and documents submitted therewith and hearing of parties on both sides and then coming to the conclusion whether the accused deserves to be discharged or should be charge-sheeted 'as trial' before the Sessions Judge.
17. This, however, in my opinion, is of no consequence. The proceedings at the pre-charge stage may be trial in the general sense but there is nothing wrong or improper in bifurcating this trial before the Sessions/Additional Sessions Judge into two parts, namely, pre-charge stage which in the eyes of law could be a sort of an enquiry by the Sessions Judge and the stage of framing of the charge and taking the plea of guilty or not guilty which in the technical sense, under law, should be deemed as commencement of trial before the Sessions/Additional Sessions Judge at least for the purpose of Sub-section (2)of Section 409of the new Code which specifidally bars the Sessions Judge from recalling a case pending before the Additional Sessions Judge where the trial of the case has commenced, since in case such a trial has not commenced the Sessions Judge is empowered to recall such a case from the file of the Additional Sessions Judge. I am, therefore, in respectful agreement with the ratio in Manoj Majumdar's case (1984 Cri LJ 28)(Cal) (supra) and I am inclined to hold that in the instant case the trial before the Additional Sessions Judge (I), Dharamsala, had not commenced as no charge had been framed by him till the case was transferred and in these circumstances even the Sessions Judge was competent to recall the same.
18. Now as regards the determination of question No. 2, it would be, in my opinion, proper to take note of relevant provisions having bearing on the same.
19. Section 407 of the new Code lays down:
407.(1); Whenever it is made to appear to the High Court
(a)&(b).
(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)...
(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) (iv)...
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:
20. Then Chapter 9-A of Vol. V of the High Court Rules and Orders, Rules 1, 2, 3 and 5 read as follows:
1. The Hon'ble the Chief Justice shall be in control of the administrative and executive work of the High Court and its distribution amongst the Honourable Judges.
2. Notwithstanding anything contained in the preceding Rule, the following matters shall invariably be taken up and disposed of at a meeting of the Honourable Judges:
(i) All matters involving questions or principle and policy;
(ii) All cases relating to amendments to be made to existing laws or to the statutory rules of the court;
(iii) All matters concerning the High Court as such or all the Honourable Judges;
(iv) All matters on which the opinion of all the Honourable Judges is invited by Government;
(v) The suspension of Subordinate Judges and District and Sessions Judges;
(vi) The promotion of Subordinate Judges and District and Sessions Judges, in cases where it is proposed to pass over an officer;
(vii) Recommendation for the grant of pensions to Subordinate Judges and District and Sessions Judges where it is proposed to recommend that the full pension earned be not allowed;
(viii) Annual confidential remarks on the work of District and Sessions Judges;
(ix)....
3. The Honourable Judge placed in charge of any branch of the executive or administrative business of the Court may refer any matter relating to that branch to a meeting of the Honourable Judges.
4....
5. At all meetings of Hon'ble Judges three Judges shall form a quorum. The Honourable Judges present at a meeting, if three or more, may dispose of all the business, for the disposal or consideration of which such meeting was called, and such disposal shall be deemed to be a disposal by the Court.
21. Then Clause 22 of the Letters Patent which admittedly apply to this Court as well reads as follows:
22. And we do further ordain that the High Court of Judicature at Lahore shall have power to direct the transfer of any criminal case or appeal from any Court to any other court of equal or, (superior jurisdiction, and also to direct theprqliminary investigation or trial of any Criminal case by any officer or Court otherwise competent to investigate or try it, though sueh case belongs in ordinary course to the jurisdiction of some other officer or Court."
22. Article 227(1) of the Constitution of India, reads:
227. Every High Court shall have superintendence over all Courts and Tribunals throughout the territories in relation to which it exercises jurisdiction.
Article 235 of the Constitution of India says:
235.Control over subordinate courts - The control over district courts and courts subordinate thereto including the posting and promotion of, and the grant of leave to persons belonging to the judicial service of a State and holding any post inferior to the post of district judge shall be vested in the High Court, but nothing in this Article shall be construed as taking away from any such person any right of appeal which he may have under the law regulating the conditions of his service or as authorising the High Court to deal with him otherwise than his service prescribed under the law.
23. From the foregoing provisions of law it is thus clear that the High Court has been vested with complete and exclusive powers over the judicial hierarchy in the State with regard to their administration, superintendence and control which power is located in the different statutes/documents. This naturally includes the power of proper distribution of work amongst the higher and lower judiciary by way of orders or directions for the efficient and expeditious administration of justice at various levels.
24. The learned Counsel for the petitioner does not dispute these powers vested in the High Court. His contention, however, as stated earlier, is that, in the first place, if a transfer order with regard to cases from one court to the other is passed it should be, with regard to the Criminal cases, on the judicial side under Section 407 of the Cr. P.C. and with regard to the Civil cases under Section 24 of the C.P.C. and the omnibus administrative order like the one in question would not do. He also contended that, in any case even if it is conceded that the High Court could pass such an order on the administrative side, the same cannot be passed under the order of the Hon'ble the Chief Justice alone but should be passed by a quorum of at least three Judges.
25. I find no merit whatsoever in this contention. I feel that Rule 1 of Ch. 9-A Vol. V of the High Court Rules and Orders is by itself sufficient to repel this contention of the learned Counsel. It, in no uncertain terms, lays down that the Hon'ble the Chief Justice shall be in control of the administrative and executive work of the High Court. Thus this Rule, in my opinion, makes the Chief Justice the repository of all powers relating to the administrative and executive work of the High Court. No doubt there is non-obstante clause in Rule 2 thereof wherein matters categorised therein have to be disposed of at a meeting of the Hon'ble Judges and in a quorum of atleast three Judges but, obviously, the matter with respect to the transfer of the cases from one court to another, does not find mention therein and thus it must be held that this power is enjoyed by the Chief Justice of the High Court exclusively at his own discretion.
26. Rule 3 Ch. 9-A Vol. V of the High Court Rules and Orders also visualises that the Hon'ble the Chief Justice has the power to place any other Hon'ble Judge/Judges incharge of any branch of the executive or administrative business of the High Court but this provision again leads to an inevitable conclusion that the Chief Justice is repository of residuum of administrative and executive work of the High Court apart from those set out in Rule 2 (supra). Thus, in my opinion the Hon'ble the Chief Justice is competent himself alone to pass any such order of transfer under Rule 1, Ch. 9-A Vol. V. of the High Court Rules and Orders read with Section 407 of the new Code with regard to the cases as the one in question and it is not necessary that such an order should be passed by a quorum of three Judges. I am also of the opinion that such an administrative order is not open to challenge by any of the parties to a case under transfer and it can even be of omnibus character like the one in question in respect of Criminal as well as Civil cases.
27. The learned Counsel for responded No. 18, (Registrar Vigilance) has cited a number of rulings to show that the High Coun enjoys such powers, namely, judicial and administrative even under Clause 22 of the Letter; Patent and also under Article 227/235 of the Constitution. The rulings cited are:
G.S. Nagmoti v. State of Mysore 1970 Serv LR 911; Hari Vishnu Kamathv. Syed Ahmed Ishaque : Sharad Bansilal Vakil v. S.H. Sheth (1981) 22 Guj LR 1019; Mohd. Abdul Raoof v. State of Hyderabad. AIR 1951 Hyd 50 : 52 Cri LJ 273 (FB); Maharaj Kumar Gajbir Singh v. Maharaja Satbir Singh ; WaliMahammad v. Manik Chandra ; Satyanarayan Nathany v. Union of India ; Shripatrao Dajisaheb v. State of Maharashtra (FB).
28. The sum and substance of all these ruling is that the Court enjoys judicial and administrative powers under the aforesaid provisions of law and that so far as the powers under Article 227 of the Constitution are concerned, they can also be exercised even suo motu.
29. The learned Counsel for the petitioner has in his arguments distinguished these rulings by contending that in all these rulings the Court concerned had passed the orders at the motion of one or the other party concerned and that the questions for determination involved therein were also quite different. This may be so, but, the idea underlying all these rulings is that the High Court is vested with plenary and unfettered administrative and judicial powers under Articles 227 and 235 of the Constitution of India, apart from the powers under the new Code (Cr. P.C.), C.P.C, the Rules and the Letters Patent and if the powers of the High Court in such matters are not exercisable under C.P.C. or Cr. P.C. or the Letters Patent, they would certainly be exercised under Arts. 227 and 235 of the Constitution of India and especially the former under which the High Court can exercise its powers even at its own initiative just as it has power to do under Section 407 of the new Code.
30. In fact, as I have pointed oui earlier, such an administrative order is beyond the paleof any challenge ask is purely an internal arrangement of the High-Court itself. I am also of the opinion that the petitioner in this case is being hyper sensitive on the point in question. The Honble the Chief Justice being the head of the judicial hierarchy in the State and having been vested with powers of administrative and executive control of the affairsof High Court qua the judicial hierarchy of the State, he is surcharged with a duty to see that the judicial work in the State at different levels of lower and higher judiciary is carried out efficiently and expeditiously. In these circumstances when the Hon'ble the Chief Justice found that work load or case pendency pertaining to Chamba District at the higher judiciary level was such that it was insufficient to feed two courts while on circuit to Chamba and considered it expedient that the same could be entrusted to the District and Sessions Judge alone, he passed the impugned order that the Additional District and Sessions Judge (I) should stop holding circuit court at Chamba on tour but concentrate on his work at Dharamshala whereas the cases pertaining to Chamba on his file, Civil as well as Criminal, be transferred to the District and Sessions Judge Dharamsala, to be disposed of on circuit in camp at Chamba. In these circumstances, I do not see how this order has become tainted with any illegality or has caused any prejudice to the case in question of the petitioner. It is not as if the case of the petitioner has been singled out for such a transfer. Even if it be so, I do not think that even such an order is open to challenge unless the petitioner is able to show mala fides on the part of the High Court. In such a situation, however, in case the petitioner feels that his case has been prejudiced or adversely affected by such a transfer, the law allows him or any other person similarly situate to move the High Court to reverse the order qua his case on the judicial side under Section 407 of the Cr. P.C. In no other case it is open to him to challenge the validity of such an order passed on the administrative side,
31. The learned Counsel for the petitioner has placed on record a photostat copy of the judgment of a Division Bench of Kerala High Court reported in 1980 Ker LT 95, State of Kerala v. Kuttikrishan, and has heavily relied thereon to show that an order of transfer conveyed to the transferee court by the Registrar of the High Court like the one in hand was not proper. It, however, appears that this ruling also does not support his contention. Para 7 of this judgment at page 98 has this to say:
Section 407, on the face of it, contemplates transfer of cases suo motu by the High Court. It follows that the High Court if convinced that in the interest of justice, it is necessary to transfer a case from one Court to another, it is empowered to do so even in the absence of a motion by a party to the proceedings. In the instant case, the High Court found that for some reasons, the details of which need not be enumerated here, Shri A. Antony should be transferred from Ernakulam. The deciskMt,-it is noticed, was taken by the Hon'ble the Chief Justice, the Judge in charge of the administration and the Judge incharge of the District concerned. The decision being administrative in character, it is not open to challenge here. On 20-7-1978, when the above decision was taken, the trial of the case had progressed to a considerable extent and as many as 102 witnesses had been examined. The transfer of the Judge would have caused considerable hardship to the accused since the law as it stood then did not provide for. continuation of the proceedings by the Sessions Judge and the successor Judge would have been obliged to begin the trial afresh. It was under such circumstances that the same Hon'ble Judges decided to shift the speciaF Court to Palghat and to post Sri Antony as the Judge of that Court. It was also decided to transfer the case to the Palghat Court. Thus, the decision to transfer the case to Palghat Sessions Division was not taken by the Registrar. What the Registrar did was only to communicate the order to the concerned Courts. The order of transfer being expedient for the ends of justice, in the sense that it was passed for avoiding a restarting of trial and consequent hardship to the accused, conforms to the provisions of Section 407 of the Code of Criminal Procedure. The fact that the decision was recorded on an administrative file need not necessarily meatf that it was an administrative order. When an authority invested with power to act in different capacities does a thing, it should be presumed that it does so in the capacity it is competent to act. In other words, since the High Court is the judicial authority competent to transfer the case to Palghat under Section 407 of the Code of Criminal Procedure, the inference should be that the decision to transfer the case was taken under the said provision. Even assuming that it is defective in form, the irregularity is not one which caused prejudice to the accused and did not vitiate the proceedings. It follows that the order transferring the case is not liable to be challenged on the ground that it does not conform to Section 407 of the Code of Criminal Procedure.
32. A bare perusal of this would show that in the first instance, an order like the one Trfquestion can be passed by the High Court suo motu without any of the parties taking initiative in the matter. Secondly, such an order being administrative in character, is not open to challenge. Thirdly, that if the decision has been taken by the competent authority but the Registrar of the High Court has only communicated the same to the concerned court, this order of communication cannot be said to be illegal or improper Fourthly, that even if such a decision is taken on the administrative file by an authority which is competent to pass such an order even on judicial side, it is of no consequence and the same can be considered as having been passed on judicial side by necessary inference. Fifthly, even if it is defective in form, the irregularity is of no consequence and cannot vitiate the subsequent proceedings in the transferee court unless it is proved that the same had caused prejudice to the accused and that such an order is not open to challenge on the ground that it does not conform to Section 407 of the Code of Criminal Procedure.
33. No doubt in this case the decision on the administrative file appears to have been taken by three Judges, namely, the Chief Justice, the Judge in charge of the administration and the Judge incharge of the district concerned. This, however, is not relevant in the present case since it appears that in the Kerala High Court the Chief Justice had delegated his powers, as he is admittedly competent to do so, to different Judges by making one Judge as Incharge of the administration of the High Court and the other Judges incharge of different districts in the State. It is also apparent that the decisions to be taken in that case were of some importance and significance as, in the first instance, it was found desirable in the interest of justice that the Sessions Judge concerned who was trying the important case as a Special Judge, ought to be transferred from Ernakulam to Palghat Sessions Division and secondly that since considerable progress had been made in that case where as many as 102 witnesses had been examined, it was also considered expedient that the said case should be tried by the same Judge and for this purpose the Special Court at Ernakulam had to be transferred to Palghat in order to enable the transferred Judge to try the same as a Special Judge in order to avoid hardship to the accused as according to the extant law, the new incumbent of the special Court at Ernakulam would have had to try this case de novo. Obviously in these circumstances the two Judges with the delegated powers consulted the Chief Justice of the High Court before the orders qua the transfer of the case and the Special Court were passed.
34. In the instant case since there was no such delegation of powers by the Hon'ble the Chief Justice and such a power, as I have already observed, vested in him on the administrative side to pass the impugned order, the same cannot be said to be tainted by any infirmity on this score.
35. The order in question is as follows:
It is hereby ordered that all cases pending for disposal before Shri B.S. Chauhan, Additional District and Sessions Judge (I) Dharamsala, pertaining to Chamba District stand transferred forthwith to the Court of Shri D.P. Sood, District and Sessions Judge, Dharamsala, for disposal in accordance with law at Chamba.
36. There is no doubt that the impugned order as it stands, ex facie, does not appear to sbe free from defect since it does not disclose the source of authority from which this order has emanated. It would have been in the fitness of things if this order had started with the words 'As directed by the Hon'ble the Chief Justice' as that would have indicated the authority under whose directions the order was being issued. This defect, however, has become of no consequence since this Court, on perusal of the record, has satisfied itself that it is traceable to a proper source,namely, 'the Chief Justice'.
37. Then the learned Counsel for respondent No. 18 has also argued in the same strain by contending that, in the first place, there are no Rules or guidelines or prescribed forms indicating as to how an order of this nature is to be issued. He has also contended that even where such orders are statutorily required to be issued in the name of certain authority and yet an order omits to follow the same, the order does not become illegal in case it is proved that the same had the due authentication by the proper authority though omitted to be disclosed in the order itself. He has buttressed this contention by submitting that although under Article 166 of the Constitution, all executive actions of the Government of a State are required to be expressed to be taken in the name of the Governor, yet if there is an omission to make and authenticate an executive decision in the form mentioned in Article 166 of the Constitution, it does not render the decision itself illegal as these provisions are merely directory in nature and not mandatory and in support of this contention he has cited AIR 1964 Mys 132, D.G. Viswanathv. Chief Secry. to the Govt. of MysoreAIR 1955 Assam, 240: 1955 Cri LJ 1474; Kanak Chandra v. Supdt. of Police Sibsagar, and , Dattatraya Moreshwar v. State of Bombay. In the last ruling that is , the Hon'ble Supreme Court has observed;
While the Preventive Detention Act requires an executive decision, call it an order or an executive action, for the confirmation of an order of detention under Section 11(1), that Act does not itself prescribe any particular form of expression of the executive decision. Article 166 directs all executive action to be expressed and authenticated in the manner therein laid down but an omission to comply With those provisions does not render the executive action a nullity.
38. I have no doubt that on the same analogy it can be safely held that an order like the one in question cannot be said to be defective for omission to indicate the source of authority under which it is being issued if it is proved on record that the order as a matter of fact owes its genesis to a competent authority. To the same effect is the ruling of the Kerala High Court 1980 Ker LT 95 (supra), cited on behalf of the petitioner wherein it was categorically held that even assuming that the order of this nature is defective in form, it cannot vitiate the subsequent proceedings held by the transferee court unless it is proved that the same has caused prejudice to the accused. Admittedly, in this case no prejudice is shown to have been caused to the petitioner by the impugned order. Be it remembered that the petitioner Satsang herein is not an accused but a complainant or informant at the instance whereof the case in question was registered and its right to challenge the orderof transfer is, to say the least, of nebulous character.
39. I am, therefore, firmly of the view that answer to question No. 2 is in the negative.
40. Now comes the last question for determination, namely, whether the order of the learned Sessions Judge, dated Jan 7,1986 is liable to be set aside as desired by the petitioner.
41. As already stated, after the case was transferred to the file of the learned Sessions Judge, Kangra in camp at Chamba and was taken up for hearing by him on Dec. 1.1,1985, his jurisdiction to try the case was questioned on behalf of the petitioner. The learned Sessions Judge, however, on the same day gave a finding that he had jurisdiction to try the case and then adjourned the same to Jan. 7, 1986. On that date after hearing the arguments and considering the record of the case and the documents submitted therewith, he came to the conclusion that since the case under Sections 436 and 450 of the Indian Penal Code was not, prima facie, made out which offences alone were triable by the Court of Session exclusively while other offences, for the commission of which there were grounds for presuming, were triable by the Judicial Magistrate, he transferred the case to the Chief Judicial Magistrate to dispose of the same by trying it as a warrant case. The learned Counsel for the petitioner has challenged this order on the ground that the lower Court acted illegally by embarking upon a detailed discussion while considering the record of the case the documents submitted therewith for charge, which was not called for at this stage of the case. He has also contended that the record of the case clearly showed prima facie, that the respondents (accused) had committed the offences, inter alia, under Sections436and450 of the Indian Penal Code which were exclusively triable by the Court of Session and this rendered the impugned order as legally unsustainable.
42. I have carefully gone through the impugned order and find no merit in either of the contentions of the learned Counsel. It is apparent that having regard to the provisions of Sections 227 and 228 of the new Code a duty is cast upon the Sessions Judge to consider the record of the case and the documents submitted therewith and also hear the submissions of the accused and the prosecution in this behalf and while undertaking such an exercise the law allows him three options one of which he is to adopt after full application of his judicial mind at that stage, namely, (i) in case he considers that there is no sufficient ground for proceeding against the accused he must discharge the accused for reasons to be recorded; (ii) in case he comes to the conclusion that there is ground for presuming that though he has committed an offence (s) but the same is not exclusively triable by him, he may frame a charge against the accused and order the transfer of the case for trial by the Chief Judicial Magistrate in accordance with law the procedure followed for warrant cases instituted on police report; and (iii) in case, however, he forms an opinion that there are sufficient grounds for presuming that the accused has committed an offence which is exclusively triable by him as Sessions Judge, he shall frame a charge in writing against the accused which shall be read over and explained to the accused and the Sessions Judge will record the plea of the accused whether he pleaded guilty or claimed to be tried.
43. Admittedly, in the instant case the offences for which the respondents (accused) had been committed before the Sessions Judge, were inter alia, those under Sections 436 and 450, l.P.C. which alone were exclusively triable by the Court of Session. Thus it was incumbent upon the learned Sessions Judge to have taken into consideration the material on record and the arguments for the parties advanced before him at the pre-charge stage to arrive at the conclusion as to whether prima facie offence was made out against the respondents (accused) under Sections 436 and 450 of the l.P.C. and for this purpose it was a relevant question before him requiring finding at that stage as to whether a prima facie case against the respondents (accused) under the aforesaid sections was made out on the basis of the record of the case and the documents submitted therewith supported by the arguments and if, while giving that finding, he has taken note of the evidence on record for this limited and specific purpose and advanced his reasons to hold that even prima facie no offence under Sections 436 and 450, l.P.C. was made out against the respondents (accused), the plea on behalf of the petitioner cannot be countenanced to the effect that the learned Sessions Judge has erred in entering upon the discussion of the evidence in order to come to the conclusion as to whether the offence under Sections 436 and 450 l.P.C. was made out, as this was clearly enjoined upon to do so by the provisions of Section 228 of the new Code.
44. The learned Counsel for the petitioner in support of the contention that the court is not required to discuss the material on record in detail as is done at the final disposal of the case but what it has to consider at the stage of Sections 227/228 of the new Code is to take only general view of the material on record and in that case even very strong suspicion founded upon material before him would be sufficient for the framing of a charge has cited , Supdt. and Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja 1981 Cri LJ 1135, Mohd. Akbar Dar v. State of Jammu and Kashmir.
45. 1 have gone through these rulings but none of them appears to be applicable to the facts of the present case. I do not agree that the learned Sessions Judge, has discussed the material, placed on record before him by the investigating agency, in such detail as he would have done while disposing of the case at the end of the trial. As a matter of fact he has considered the material on record only on a very limited and specific point, namely, whether there is material on record to prima facie show that there was a house which was used for human dwelling or place of worship or for custody of property and the same was set on fire by the respondents (accused) and, in my opinion, he has rightly come to the conclusion that there is no such material on the record. Even the FIR as lodged by the petitioner Tara Singh, which has been taken note of substantially in the beginning of this order, does not disclose any such facts or allegations. There the simple allegations is that the respondents (accused) formed an unlawful assembly and after removing the fence put up on the boundary of the land by the Satsang, trespassed into its land and demolished the Satsang Hall under construction thereon, the walls whereof had been raised upto the height of 13 feet and was ready for putting a slab thereon. They also set fire to the wooden frames of doors and windows, 15 in number, which had been stacked apart, ready for fixation and then drove away the labourers working over there by pelting stones on them which caused injuries to some of them and thereafter removed timber kept in a shed to an open space and set fire to the same and even threw stones and damaged glass in the building Ellesmere when the labourers took shelter in that building. Thus there is no allegation whatsoever that any of the respondents (accused) set any house or shed on fire which was being used for human dwelling, custody or property or as a place of worship.
46. It was argued before this Court, as was done in the lower court as well, that since there was material on record to show that the respondents (accused) set fire to the timber in the open space at a distance of about 5 or 10 feet from the residential building over-there, they must be impressed at least with the knowledge that the fire was likely to spread to the residential building Ellesmere and thus could cause destruction thereof and which\ was not only used as a human dwelling but also for custody of property and thus prima facie the offence under Section 436,1.P.C. must be held to have been made out. This plea was rightly repelled by the lower Court. Evidently, the respondents (accused) were sufficiently in number to force entrance into the residential building known as Ellesmere if they so desired and could set the same on fire. They, however, did not do so and the inference is inevitable that they had no intention to cause such fire. In these circumstances this also cannot be said that since they had set fire to the timber so close to the building that knowledge should be imputed to them that the fire was likely to travel to the residential building and cause its destruction. In fact it rather appears that, they took all precautions to see that only the material set apart for being used in the building under construction was destroyed or damaged but not any such building which is used as a place of worship or as a human dwelling or as a place of custody of property and that is why they did not set fire to the timber when it was stacked inside the shed so as to cause destruction of the shed itself along with the timber. They rather took the timber out of the shed and then set fire to it. I am, therefore, firmly of the view that the finding of the lower Court that no prima facie case under Sections 436/450 of the New Code was made out on the basis of the material on the record, is free from the taint of any impropriety or.illegality and thus unassailable.
47. The learned Counsel has also mildly contended that it was incumbent upon the learned Sessions Judge to have framed a charge in respect of the offences which according to the learned Sessions Judge were found to have been prima facie made out in accordance with Clause (a) of Sub-section (l) of Section 228 of the new Code and it was only thereafter that he should have ordered the transfer of the case for trial to the Chief judicial Magistrate but in the instant case the Sessions Judge erred in not doing so. There is no doubt that the provisions of sub-cl. (a) of Sub-section (1) of Section 228 enjoin upon the Sessions Judge to order the transfer of the case to the Chief Judicial Magistrate for trial after he tad framed the charge against the accused which has not been done in the instant case, but in my opinion, this omission is not an illegality since this duty cast upon the Sessions Judge is only directory and not mandatory which is indicated by the words 'he may frame a charge against the accused' and it is within the discretion of the Sessions Judge whether to frame a charge and then transfer the case or leave it to the Chief Judicial Magistrate to undertake that exercise before embarking upon the trial of the case and this would not vitiate the proceedings.
48. In view of the above discussion, the petition fails and the same is dismissed. The record of the lower Court be now remitted to the Court concerned for disposal in accordance with law. Since the case has been hanging fire for a long time, it is hoped that the Court would take up the disposal of this case on priority basis. The parties are directed to attend the Court of the Chief Judicial Magistrate, Chamba, on the 28th of May, 1987.