ORDER O.P. Garg, J.
1. This is a petition under Section 482, Cr. P.C. with the prayer that the XVIth Addl. District and Sessions Judge, Meerut Smt. Indira Asheesh be directed to reopen the two Sessions Trials Nos. 2240/95 and 2241/95, State of U.P. v. Kamal Kumar Gautam and the same be decided expeditiously.
2. In spite of service of notice, respondents 1 to 3 have not entered appearance. Heard Sri S. K. Verma, learned Counsel for the petitioner and the learned A.G.A. on behalf of respondents 4 and 5.
3. The present case has the chequered facts. An incident which took place on 21-4-1995 gave rise to two sessions trials one 2240 of 1995 and the other 2241 of 1995 under Sections 366/376, I.P.C. and 25/4, Arms Act, Respondents 1 to 3 are the accused persons. The Sessions Judge, Meerut, transferred the two trials to the Court of XVIIth Additional District and Sessions Judge, Meerut by his order dated ! 1-8-1995. The said Court was then presided over by Sri Rajvir Singh. The transfer application moved by respondents 1 and 2 was rejected by the Sessions Judge, Meerut on 3-12-1995. On the application of the accused persons, this Court transferred the aforesaid two trials by order dated 18-12-1995 to the Court of 1st Additional Sessions Judge, Meerut then presided over by Sri R. P. Yadav, The present petitioner who is the victim of the alleged offences filed an application for transfer of the trial from the Court of Sri R. P. Yadav to the Court of another Additional Sessions Judge, learned Sessions Judge, Meerut transferred the two trials by his order dated 19-4-1996 to the Court of IInd Additional Sessions Judge then presided over by Sri R. K. Singh. Sri R. P. Yadav, the 1st Additional Sessions Judge, had also reported to the Sessions Judge, Meerut that the case be transferred from his Court. Subsequently, learned Sessions Judge recalled his order dated 19-4-1996 realising the fact that his order would be in conflict with the order dated 18-12-1995 passed by this Court transferring the trials to the Court of 1st Additional Sessions Judge. The result of recalling the order dated 19-4-1996 was that the two sessions trials again came to the Court of the 1st Additional Sessions Judge. The petitioner filed an application for transfer before this Court which was allowed on 14-8-1996 and the two trials were transferred to the Court of IInd Additional Sessions Judge presided over by Sri R. K. Singh. In course of time Sri R. K. Singh became the 1st Additional Sessions Judge and in his place Sri S. C. Srivastava had taken over as the IInd Additional Sessions Judge. There were certain misgivings about the conduct of Sri S. C. Srivastava. The petitioner also came to know of the legal position laid down by the Supreme Court that the trials involving the offences against women particularly relating to sexual assaults should be tried by a lady Judge if available. Smt. Indira Asheesh, one of the Additional Sessions Judges was posted in Meerut Sessions Division. The petitioner, therefore, filed an application for transfer before the learned Sessions Judge with the prayer that the two trials be transferred from the Court of IInd Additional Sessions Judge to the Court of Smt. Indira Asheesh, a lady Additional Sessions Judge. The learned Additional Sessions Judge issued notice to the accused persons-opposite parties and fixed 13-12-1996 for hearing on the transfer application but did not stay the proceedings. The petitioner approached this Court under Section 407, Cr. P.C. The said application was rejected on 2-12-1996 on the ground that the transfer application was not maintainable unless the learned Sessions Judge rejects the transfer application moved before him. A writ petition No. 3983 of 1996 was filed before a Division Bench of this Court by the petitioner. By order dated 6-12-1996 the Division Bench took the view that the petitioner could approach the learned Sessions Judge and the learned Sessions Judge could himself grant the relief of staying the two sessions trials and that the request of the petitioner shall be considered by the learned sessions Judge. Armed with the order dated 6-12-1996 passed by this Court, the petitioner filed an application before the learned Sessions Judge for staying the proceedings in two sessions trials. The learned sessions Judge instead of staying the proceedings heard and decided the transfer application and by order dated 24-1-1997 transferred the two sessions trials to the Court of XVIth Additional Sessions Judge presided over by Smt. Indira Asheesh.
4. Respondent No. 1 Bimla Devi filed an application under Section 482, Cr. P. C. with the prayer that the order dated 24-1-1997 passed by the learned Sessions Judge, Meerut transferring the two trials to the Court of Smt. Indira Asheesh be quashed. The plea taken in petition under Section 482, Cr. P. C. was that the learned Sessions Judge had no power to transfer a part heard trial from the Court of 1st Additional Sessions Judge to another Additional Sessions Judge. This petition was disposed of finally by this Court on 17-2-1997 (Hon'ble R. N. Ray, J.) in the following terms.
In the circumstances, the impugned order dated 24-1-1997 is quashed and it is observed that if the prosecution thinks that there is apprehension of the denial of justice then in that event they can approach before the proper court. However, the aforesaid Sessions Trial Nos. 2240 and 2241 of 1995 pending before the XVI Additional Sessions Judge, Meerut shall remain stayed giving an opportunity to the prosecution under Section 407, Cr. P. C. to take steps if they so desire.
5. The present petitioner filed an application for recalling of the above order dated 17-.2-1997 on the ground that in view of the Full Bench decision of this Court Reported in 1984 All LJ 666.- Radhey Shyam v. State of U.P. the Sessions Judge could always transfer a case from one court to another Additional Sessions Judge. It was also alleged that before passing the order dated 17-2-1997 the petitioner was not heard. This application for recalling the order dated 17-2-1997 was rejected on 1-3-1997.
6. Learned counsel for the petitioner urged that the result of the .order dated 17-2-1997 is that the proceedings in the two trials shall continue to remain stayed if the prosecution does not approach the proper court as directed in the order dated 17-2-1997. The learned A. G. A. also frankly conceded that the effect of the order dated 17-2-1997 is that the two trials shall remain stayed and no further proceedings can be taken by any one of the Additional Sessions Judges.
7. I have given thoughtful consideration to the matter. This fact cannot be denied that no further proceedings can be taken in the two sessions trials Nos. 2240 and 2241 of 1995 which have been stayed without any corresponding advantage. It is expected at all hands that the trials against the accused persons should commence as expeditiously as possible as the accused persons cannot be continued to enjoy, for all the times to come, the fruits of the order by which the trials against them have been put off/stayed indefinitely. A quixotic position has arisen on account of indefinite stay of the proceedings in the two trials. Regardless of the fact in which "Court the trials proceeds, the fact remainst that the trials cannot be allowed to remain stayed Without any justification.
8. By order dated 24-1-1997 the learned Sessions Judge has transferred the two trials from the court of IInd Additional Sessions Judge to the Court to XVIth Additional Sessions Judge. In Radhey Shyam v. State of U. P. 1984 All LJ 666 (supra) a Full Bench of this Court has ruled that the Sessions Judge is empowered under Section 408, Cr. P. C. to transfer a part heard case or appeal from a court of an Additional Sessions Judge to another competent Court within his Sessions Division if it is expedient in the interest of justice. In the light of the observation made by the Supreme Court in the case of State of Punjab v. Gurmit Singh (1996) 2 SCC 384 (at page 394) : AIR 1996 SC 1393 that cases of sexual assaults should be tried by lady Judges if available, the learned Sessions Judge, Meerut found it expedient to transfer the case from the Court of IInd Additional Sessions Judge presided over by a male presiding officer to the Court of XVIth Additional Sessions Judge presided over by a lady Additional Sessions Judge (Smt. Indira Asheesh).
9. Learned counsel for the petitioner painstakingly made a reference to AIR 1939 Privy Council 213 - O.P. Matthen v. District Magistrate Trivandrum in which it was observed that an application to the High Court under Section 561-A of the Old Cr. P. C. (corresponding to Section 482 of the new Cr. P. C.) praying that the order of the single Judge should be quashed as having been passed without jurisdiction is competent. On the strength of the observations made by the Privy Council in the aforesaid case, the learned counsel for the petitioner urged that in the instant case under Section 482, Cr. P. C. this Court has inherent power to prevent the abuse of the process of any Court or otherwise to secure the ends of justice.
10. Undoubtedly, it would be a gross abuse of the process of the Court if the two trials are allowed to remain stayed for all times to come, meaning thereby the accused persons would not be tried for the offences relating to sexual assaults on the petitioner Km. Sarika. The ends of justice would be secured only if the trials proceed in accordance with the procedure prescribed under the Code. It is, therefore, an eminently suited case in which inherent powers of the Court should be invoked to ensure that the trial of the offences as contemplated under the provisions of the Code of Criminal Procedure, instead of being throttled, commences against the accused persons with all expedition.
11. On account of annual transfer, there has been a reshuffle in the presiding officers of the various Courts. Smt. Indira Asheesh is presently XVth Additional Sessions Judge (and not XVIth Additional Sessions Judge as she was before). In view of the law laid down by the Supreme Court in Gurmit Singh's case (supra), it would be expedient and in the interest of justice if the accused persons are tried by Smt. Indira Asheesh Additional Sessions Judge.
12. The petition under Section 482, Cr. P.C. is allowed. It is hereby directed that Smt. Indira Asheesh, presently XVth Additional Sessions Judge, shall proceed with the two sessions trials Nos. 2240 and 2241 of 1995 State of U.P. v. Kamal Kumar Gautam under Section 366/376, I.P.C. and 25/4 of the Arms Act which stand transferred to her Court. As far as possible the trials shall be concluded within a period of six months from the date of this order.
13. It is also made clear that if during the intervening period i.e. after the taking up of the trials and conclusion thereof, Smt. Indira Asheesh is shifted to another Court in the same Sessions Division, the two trials shall be taken up by her unmindful' of the fact to which Court she is shifted.
14. A copy of this order shall be sent to the Sessions Judge, Meerut and to Smt. Indira Asheesh XVth Additional Session Judge by the office immediately.