Punjab-Haryana High Court
Sanjay Bhardwaj vs Union Territory Of Chandigarh And ... on 21 August, 2009
Author: Mahesh Grover
Bench: Mahesh Grover
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH.
Crl.Misc. Petition No.10788-M of 2008
Date of Decision: 21.8.2009
Sanjay Bhardwaj.
....... Petitioner through Shri
Arvind Singh, Advocate.
Versus
Union Territory of Chandigarh and others.
....... Respondent no.1 through
Ms.Ashima Mor, Advocate.
Respondent no.4 through
Shri Vikas Bahl, Advocate.
Respondent nos. 2 & 3
through nemo.
CORAM: HON'BLE MR.JUSTICE MAHESH GROVER
....
1. Whether Reporters of Local Newspapers may be allowed to
see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
....
Mahesh Grover,J.
This is a petition under Section 407 of the Cr.P.C. for transfer of proceedings in the case arising out of F.I.R. No.87 dated 27.5.1999 registered under Sections 363, 366, 376, 467, 468, 471, 120-B of the I.P.C. at Police Station, Sector 36, Chandigarh against the petitioner and respondent nos. 2 & 3, which is being tried by the Court of Shri R.K.Sondhi, Additional Sessions Judge, Chandigarh (hereinafter described as `the trial Court'), to any other Court of competent jurisdiction within Chandigarh itself.
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In a hard- fought litigation and in the peculiar facts, the petitioner prior to the filing of the instant petition, had moved an application dated 31.3.2008 before the trial Court for making a reference to the Sessions Judge, Chandigarh for transfer of the case. The reference was made by the trial Court by order Annexure P4, the relevant portion of which is extracted below:-
"No doubt while deciding the criminal revision against the order of lower court dated 18.12.2004 filed by one Sadanand Arora who has been summoned to face4 prosecution u/s 500 of the IPC on the complaint filed by the complainant of this FIR in para no.17 some findings as to the marriage of the prosecutrix with Prashant Arora S/o Sada Nand was given whereas the applicant alleged that prosecutrix had married him and not said Prashant and it is his defense to the present prosecution. In view of the aforesaid facts and circumstances, it is ordered that let this case be put up before learned Sessions Judge, Chandigarh for a favour of its transfer to some other competent court. The Ld. PP and the accused present in the Court besides the complainant who is also present in the court are directed to appear before ld. Sessions Judge, Chandigarh on 2.4.2008 at 10.00 A.M. sharp. Let this file is ordered to be transmitted forthwith."
The Sessions Judge, Chandigarh, however, did not accept the reference and declined the same vide order dated 2.4.2008, Annexure P5.
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The relevant part of the said order is reproduced below:-
"Perusal of the file shows that accused were charge sheeted u/s 366, 376 IPC etc. vide order dated 17.03.2006. Thereafter prosecution led evidence. As per section 409 of Cr.P.C., a Sessions Judge may withdraw any case or appeal from the Additional Sessions Judge and as per sub-section 2, the same can be done before the commencement of the trial or hearing. In the present case the trial has already been commenced and in the circumstances this court is not competent to transfer the case. Being so, the reference made by ld. Additional Sessions Judge is declined. File be sent back immediately."
Learned counsel for the petitioner has contended that the Sessions Judge has misinterpreted the prayer of the petitioner and has wrongly invoked the provisions of Section 409 of the Cr.P.C. to decline the transfer of the case. It is his contention that under Section 408(2) of the Cr.P.C., the Sessions Judge may act, either on the report of the lower Court or on an application of a party interested or on his own initiative, for transfer of a criminal case, whereas according to Section 409(2) of the Cr.P.C., the Sessions Judge may withdraw any case or appeal from or recall any case or appeal which has been made over to any Additional Sessions Judge at any time before the trial of the case or hearing of the appeal has commenced. Reliance has been placed on a Division Bench judgment of the Kerala High Court in T.S.Surendra Kumar Versus K.Vijayan and another, 2006(1) R.C.R. (Criminal) 250 (Kerala), wherein it has been Crl.Misc.Petition No.10788-M of 2008 -4- ....
observed in paragraph 8 as under:-
"8. Section 408 is captioned as Power of Sessions Judge to transfer cases and appeals. It is not a power of the Court of Session. It is a power conferred on the Sessions Judge presiding over the Court of Session. Section 408 provides that the power of transfer of a criminal case from one criminal court to another criminal court in the sessions division is to be exercised only if it is expedient for the ends of justice. It odes not require an elaborate discussion to hold that it is a judicial exercise of power. The power under Section 408 can be exercised in three modes : (1) on the application of an interested party, (2) suo motu, (3) on the report of the lower court. There is no quarrel for the proposition that the Sessions Judge is empowered to transfer any case or appeal at any stage pending before the Assistant Sessions Court. But should that power be limited to transfer of cases in the inferior criminal courts only? `Inferior criminal court' is an expression used only under Section 397 while dealing with the powers of revision. It is pertinent to note that the expression `subordinate' is conspicuously absent under Section 408. The Additional Sessions Judge is not subordinate to the Sessions Judge also. But it has to be noted that the Additional Sessions Judge gets jurisdiction to deal with a case only if such a case or appeal is made over to Crl.Misc.Petition No.10788-M of 2008 -5- ....
him by the Sessions Judge. Any time prior to the trial or hearing of the case or appeal as the case may be, the Sessions Judge is also empowered to withdraw such cases. Thus, though the Court Additional Sessions Judge is not inferior and though the Additional Sessions Judge is not subordinate to the Sessions Judge,as far as administration of criminal justice in the sessions division is concerned, thereis an administrative subordination in the sense that the Additional Sessions Judge gets jurisdiction only in respect of the cases made over to him and such cases are liable to be withdrawn also before commencement of the trial or hearing. It appears that the legislature had advisedly used the expression `lower' and not `subordinate or inferior' to ensure that the power under Section 408 can extend to issue of directions for transfer of a case pending before the Additional Sessions Court. As already noted above, the Court of an Additional Sessions Judge is also a criminal court in the sessions division. Under the proviso to section 407(2) in the matter of transfer of a case on the application of an interested litigant before the High Court, such application would lie only if a motion had already been made before the sessions Judge and rejected by him. That power conferred on the Sessions Judge is meant in the interests of the litigant public as also for lessening the Crl.Misc.Petition No.10788-M of 2008 -6- ....
burden of the High Court, lest for every transfer of a criminal case or appeal in a sessions division, the litigant public will have always to approach the High Court. Since the power under Section 408 is judicially exercised and since reasons are to be recorded as provided under section 412, any aggrieved party can always take recourse to the revisional remedy under section 391. So much so, the conferment of the power of the Sessions Judge to transfer a criminal case at any stage from the Court of one Additional Sessions Judge will not cause any irreparable injury to a party to the litigation."
Further reliance was placed on a Division Bench judgment of Madhya Pradesh High Court in Re: by Distt. & Sessions Judge, Raisen, 2005(3) R.C.R. (Criminal) 779 (M.P.). wherein it was laid down as under:-
" (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.
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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) Cr.P.C. and the administrative power under sections 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 Cr.P.C. 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.
( c ) A Sessions Judge in exercise of his administrative power under section 409, may also recall any case where trial of the case or hearing of an appeal has commenced before an Additional Sessions Judge (for the purpose of trying/ hearing Crl.Misc.Petition No.10788-M of 2008 -8- ....
it himself or for being made over to another Additional Sessions Judge), if such Judge before whom it became part- heard has retired, resigned, died or is transferred outside the Sessions Division. No hearing need be given for such recalling though the reason should be recorded. It is not necessary to refer such matters to the High Court for transferring them by exercise of power under section 407 of the Code."
On the other hand, learned counsel for the respondents contended that the petitioner is merely trying to brow-beat the Presiding Officer and since the trial has commenced, the case could not have been transferred. In support of this contention, reliance was placed on Ashish Kumar Versus Central Bureau of Investigation and ors., 2002(3) R.C.R. (Criminal) 79 (P&H) Madan Lal Versus CBI/ ACU-III, New Delhi, 2004 Crl.L.J. 3707 (P&H); Jai Parkash Versus State of Punjab, 2005(4) R.C.R. (Criminal) 357 (P&H); and Pal Singh and another Versus Central Bureau of Investigation, (2005) 12 S.C.C. 329.
I have thoughtfully considered the rival contentions and have gone the record.
As noticed above, the Presiding Officer has himself expressed that the case be transferred out of his Court for the reason that he had already made some observations regarding the facts relating to the case of the parties while dealing with a matter inter se between them in collateral proceedings. The observations are distinct and clear to that effect.
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In this view of the matter, it was incumbent upon the Sessions Judge to have invoked his powers under Section 408 and not to fall back upon the provisions of Section 409 of the Cr.P.C. According to the provisions of Section 408, which is extracted below, particularly under sub-section (2), the Sessions Judge could have transferred the case:
"408. Power of Sessions Judge to transfer cases and appeals.- (1) Whenever it is made to appear to a Sessions Judge that an order under this sub-section 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 sub-sections (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 sub-section (1) as they apply to in relation to an application to the High Court for an order under sub-section (1) of section 407, except that sub-section (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."
A reading of the above extracted provisions reveals that the same do not fetter the powers of a Sessions Judge to transfer a case by Crl.Misc.Petition No.10788-M of 2008 -10- ....
constricting it to some particular stage thereof, whereas Section 409 of the Cr.P.C. on which Sessions Judge herein has chosen to fall back on, clearly constricts such a power by prescribing that the proceedings can be transferred at any time before the trial of a case or hearing of an appeal has commenced. Section 409 of the Cr.P.C. is also reproduced below for ready reference:-
"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, as 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 sub-section (1) or sub-section (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."
Having regard to the law laid down in the cases relied upon by the learned counsel for the petitioner and the provisions of Sections 408 and 409 of the Cr.P.C., when the Presiding Officer himself had expressed his disinclination to continue with the trial for the reason that it may prejudice Crl.Misc.Petition No.10788-M of 2008 -11- ....
the case of the parties in view of his observations made by him in some collateral proceedings inter se between them, I am of the considered opinion that the Sessions Judge ought to have respected his opinion and exercised his power pursuant to provisions of Section 408 and should have not have hold himself hostage to a situation which is prescribed by Section
409. Consequently, the instant petition is allowed and the matter is remitted back to the Sessions Judge, Chandigarh to consider the prayer for transfer of the trial in the light of the observations made above. Let the needful be done within a period of three weeks after receipt of a copy of this order and after issuing notice to the parties.
August 21,2009 ( Mahesh Grover ) "SCM" Judge