Gujarat High Court
Musa Mahammad Malek And Anr. vs State Of Gujarat on 12 December, 1994
Equivalent citations: (1995)1GLR845
JUDGMENT K.R. Vyas, J.
1. The petitioners, who are two amongst the original nine accused of Sessions Case No. 45 of 1993, are facing trial for offences punishable under Sections 120-B, 143, 147, 148, 149, 302, 323 and 307 of the Indian Penal Code. It appears that there are cross-cases the other being Criminal Case No. 44 of 1993 which is also pending before the Sessions Court, Baroda.
2. It appears that Mr. M.H. Shah, 3rd Additional Sessions Judge, Baroda framed charge against the accused in the said case on 25-1-1994. Said Shri Shah was thereafter transferred from Baroda to Surat and the learned Sessions Judge entrusted the said Sessions Cases to Shri S.S. Patel, 3rd Additional Sessions Judge. An averment has been made in the petition that the said Shri Patel also decided application Ex. 35 on 4-7-1994 and directed the prosecution to produce certain evidence before the Court on or before 18-7-1994. The Investigating Agency has also partly complied with the said direction. However, the matter was thereafter adjourned to 16-8-1994. It further appears that the learned Sessions Judge, in exercise of the power conferred upon him under Section 194 read with Section 409 of the Criminal Procedure Code, has transferred the said Sessions Case Nos. 44 and 45 of 1993 to Shri V.S. Bhatt, Additional Sessions Judge. This order is challenged by the petitioners in this petition.
3. Mr. B.S. Patel, learned Advocate, appearing for the petitioners, has submitted that under Section 194 of the Code a Sessions Judge of the division may, by general or special order, hand over such cases for trial to an Additional Sessions Judge or Assistant Sessions Judge and according to this power, in the present case, the case of the petitioners was allotted to the 3rd Additional Sessions Judge, Baroda. It is submitted that as the said case is still pending before the 3rd Additional Sessions Judge, the Sessions Judge has become defunct officio and, therefore, has no power or control over the case made over to the third Sessions Judge and the power exercised under Section 409 of the Code is, therefore, without authority of law.
4. Section 194 of the Code provides mat an Additional Sessions 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. In the instant case, as stated above, the learned Sessions Judge had already allotted the cases to Mr. Shah, third Additional Sessions Judge and after his transfer to Mr. Patel. Mr. Patel also decided an application Ex. 35 on 4-7-1994 and directed the prosecution to produce certain evidence before the Court on or before 18-7-1994. The investigating agency also partly complied with the said direction.
5. Section 409 of the Code deals with withdrawal of cases and appeals by Sessions Judges and it reads as under:
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 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.
Sub-section (1) of Section 409 empowers a Sessions Judge to withdraw any case or appeal from, or recall any case or appeal which he has made over to any Assistant Judge or Chief Judicial Magistrate subordinate to him. However, reading Sub-section (2) of Section 409, it becomes abundantly clear that the Sessions Judge is empowered to recall any case or appeal, which he has 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. However, after commencement of the trial of a case or hearing of an appeal, such a power is not left with 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.
6. It was, therefore, not open to the Sessions Judge to withdraw the said case from the file of third Additional Sessions Judge and to make over the same to Additional Sessions Judge. The Supreme Court in Ratilal Bhanji Mithcmi v. State of Maharashtra 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 Section 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 Section 409 of the Code to recall the case from the file of the third Additional Sessions Judge.
7. In Manoj Majumdar v. State of West Bengal 1984 Cri. LJ 28 learned le Judge of the Calcutta High Court, while considering the provisions of Section 409 of the Code has held that trial commences as soon as charge is framed and plea by accused is taken. In that view of the matter the order recalling the case after the framing of the charge and taking of the plea of the accused in this case appears to be without jurisdiction. Therefore, the learned Sessions Judge was not right in the present case in recalling Sessions Case No. 45 of 1993 from the 3rd Additional Sessions Judge after the trial commenced therein and transferring the same to the Additional Sessions Judge.
8. In the result, this application is allowed. The learned 3rd Additional Sessions Judge, Baroda is directed to proceed with the trial of Sessions Case Nos. 44 and 45 of 1993 in accordance with law. Rule is made absolute accordingly. Writ to be sent forthwith.