Gujarat High Court
Menandbhai Maldebhai Modhvaniya vs State Of Gujarat on 22 February, 2017
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/SCR.A/943/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION (TRANSFER) NO. 943 of 2017
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MENANDBHAI MALDEBHAI MODHVANIYA....Applicant(s)
Versus
STATE OF GUJARAT....Respondent(s)
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Appearance:
MR HARSHIL C DATTANI, ADVOCATE for the Applicant(s) No. 1
MS NISHA THAKORE, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 22/02/2017
ORAL ORDER
1. By this application under Section 408 of the Cr.P.C., the applicant-original accused has prayed for the following reliefs:
"(A) That the Hon'ble Court transfer the Sessions Case No.77 of 2012 pending before the Court of 7th Additional Sessions Judge at Jamnagar to the Court of 6th Additional Sessions Judge at Jamnagar in interest of justice;
(B) That pending the hearing and final disposal of the petition, that the Hon'ble Court be pleased to stay further proceedings in respect of Sessions Case No.77 of 2012 pending before the court of 7th Additional Sessions Judge, at Jamnagar in interest of justice.
(C) For ad-interim reliefs in terms of prayer (B) above;
(D) For such other and further reliefs as the circumstances of case may require."
2. On 13.02.2017, the following order was passed:
"Leave to amend.
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R/SCR.A/943/2017 ORDER
Let notice be issued to the respondents, returnable on 22nd February 2017. The learned APP waives service of notice for and on behalf of the respondents.
The registry is directed to call for the report of the learned Sessions Judge, Jamnagar, as regards the circumstances under which the Sessions Case No.77 of 2012 pending in the Court of the learned 6th Additional Sessions Judge came to be transferred to the Court of the learned 7th Additional Sessions Judge.
I take notice of the fact that the trial is in progress and many witnesses have been examined. Whether this could have been done in view of Section 409(2) of the Code of Criminal Procedure, 1973.
Let there be an ad-interim order in terms of paragraph 7(B).
Notify the matter on top of the board."
3. Pursuant to the order passed by this Court referred to above, the Principal District Judge, Jamnagar has forwarded his report dated 21.02.2017 stating as under:
"District & Sessions Court, Jamnagar. Date:21/02/2017 To, The Registrar General, High Court of Gujarat, At Sola, Ahmedabad-380 060.
Subject: Spl. Criminal Application (Transfer) No.943 of 2017. Sessions Case No.77/2012.
Respected Sir, With reference to the subject noted above, I have the honor to submit my report regarding transfer of Sessions Case No.77/2012 from 6th Addi. Sessions Judge, Jamnagar to 7th Addi. Sessions Judge, Jamnagar as under:Page 2 of 9
HC-NIC Page 2 of 9 Created On Sun Aug 13 14:38:23 IST 2017 R/SCR.A/943/2017 ORDER on verifying the record of the Sessions Case No.77/2012 it has come to know that lastly the deposition of Mamlatdar Lalpur is recorded on dated 09/06/2014 by the then 4th Addi. Sessions Judge, Jamnagar (Mrs. P.J. Agravat) thereafter no any deposition is recorded. On transfer of the then 4th Addi. Sessions Judge, Jamnagar (Mrs. P. J. Agravat) the Sessions Case No.77/2012 was transferred to various Courts. Lastly, the Sessions Case No.77/2012, pending in the Court of Addi. Sessions Judge, Jamnagar (Court of Mr. P. C. Joshi) was transferred to the Court of 6th Addi. Sessions Judge, Jamnagar (Court of Mr. B. R. Sharma) vide this Office order No.Civil/5540/2016 dated 15/10/2016 and till today the Sessions Case No.77/2012 is pending in the same Court (Court of Mr. B. R. Sharma) at present 4th Addi. Sessions Judge, Jamnagar.
In connection with the above mentioned facts, I have to humbly submit that the Sessions Case No.77/2012 was transferred in view of Section 409(2) of the Code of Criminal Procedure, 1973 which may kindly be noted and obliged.
Thanking You, Yours faithfully, Principal District Judge, Jamnagar. "
4. This Court in the case of C. B. Sharma V/s. State of Gujarat, reported in 2016 part-1 GLR 652 has explained the provisions of Section 408 and 409 of the Cr.P.C. I may quote the relevant paragraphs.
"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 :Page 3 of 9
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(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 Page 4 of 9 HC-NIC Page 4 of 9 Created On Sun Aug 13 14:38:23 IST 2017 R/SCR.A/943/2017 ORDER 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 part heard 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 Page 5 of 9 HC-NIC Page 5 of 9 Created On Sun Aug 13 14:38:23 IST 2017 R/SCR.A/943/2017 ORDER 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 Page 6 of 9 HC-NIC Page 6 of 9 Created On Sun Aug 13 14:38:23 IST 2017 R/SCR.A/943/2017 ORDER 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.
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, Page 7 of 9 HC-NIC Page 7 of 9 Created On Sun Aug 13 14:38:23 IST 2017 R/SCR.A/943/2017 ORDER 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".
24.1 Thus, in the above noted case also, the issue was altogether different and what was being considered is Section 409 of the Code."
5. In view of the above, I see no good reason to disturb the order passed by the Sessions Judge, Jamnagar transferring the Sessions Case from court no.6 to court no.7. According to the report, the Sessions Case No.77/2012 is pending in the Court of 4th Additional Sessions Judge, Jamnagar proceeded over by Mr. B. R. Sharma. I take notice of the fact that the last witness in the Sessions Case was examined in 2014. The case is pending thereafter past three years without any further progress. The Court concerned is directed to proceed further with the hearing of the Sessions Case No.77/2012 at the earliest and see to it that the same is disposed with the Page 8 of 9 HC-NIC Page 8 of 9 Created On Sun Aug 13 14:38:23 IST 2017 R/SCR.A/943/2017 ORDER judgment within six months from the date of receipt of this order. Direct service is permitted.
(J.B.PARDIWALA, J.) ABHISHEK Page 9 of 9 HC-NIC Page 9 of 9 Created On Sun Aug 13 14:38:23 IST 2017