JUDGMENT V.K. Chaturvedi, J.
1. Pappu has filed this transfer application with the prayer to transfer the Sessions Trial No. 360 of 2006, State v. Pappu and others, pending in the court of 18th Sessions Judge, Agra to the court of Sessions Judge, Agra or some other court.
2. Heard Sri R.N. Rai, counsel for the applicant, Sri Sudhir Mehrotra, A.G.A.
3. It is contended by the counsel for the applicant that once the charge is framed by the trial court, the Sessions Judge has no power to transfer that sessions trial to some other court because that is a part heard matter with that court who framed the charge. In support of his contention he has relied upon the judgement of (1) Ratilal Bhanji Mithani v. State of Maharashtra and Ors. reported in AIR 1979 SC 94 (2) State of West Bengal v. Ganaadhar Dawan and Ors. reported in 1989 Cri.L.J. 563 (3) Punjab Singh and Ors. v. State of Uttar Pradesh reported in 1983 AWC 55 (DB).
4. A.G.A. contended that the Sessions Judge has power under Section 408, Cr.P.C. to transfer a part heard session trial or appeal to the court of any Additional Sessions Judge. In support of his contention he has relied upon a judgement of Radhey Shyam and Anr. v. State of U.P. reported in 1984 ALJ 666 (Full Bench).
5. The sole controversy involved in this case is whether the Sessions Judge has no power to transfer the case if the charges are framed against the accused persons because that is a part hear matter of that presiding officer.
6. The brief facts of the case are that a F.I.R. was lodged against the applicant and other accused persons in respect of an incident dated 18.1.2006 under Section 147, 148, 149, 302, 307, 452, 427, 323, 504, 506 I PC at crime No. 29 of 2006 at police station Achnera District Agra. The Investigating Officer, after completing the investigation, submitted charge sheet under Section 173(2), Cr.P.C. and the case was committed to the court of sessions. The case was numbered as ST. No. 360 of 2006, State of UP. and others. The Sessions Judge framed the charges against the applicant and other accused person by his order dated 27th May, 2006 under Section 148, 323 read with Section 149, 307 read with Section 149, 302 read with Section 149 and 452 I PC. After framing the charges he fixed 12.6.2006, 13.6.2006 and 14.6.2006 for recording the prosecution evidence. On 9.6.2006 above session trial was transferred by the Sessions Judge to the court of 18th Additional Sessions Judge, Agra and subsequently the case was taken up by the Additional Sessions Judge, Agra and he started to record the statement of prosecution witnesses. The petitioner filed a transfer application before the Sessions Judge, Agra with the prayer to transfer the session trial from the 18th Additional Sessions Judge to some other Additional Sessions Judge having competent jurisdiction on the ground that the defence counsel was not allowed to cross-examine the informant-prosecution witness No. 2. The Sessions Judge called the comments from the presiding officer and after perusing the comments and the order sheet, rejected the transfer application vide his order dated 20.7.2006, copy of which is annexure-5 to the affidavit. The 18th Additional Sessions Judge, while sending his comment has mentioned that the above session trial was received in his court on 12.6.2006 and the doctor was examined as P.W.1. On 19.6.2006 the examination-in-chief of P.W.2 Mahavir Singh was recorded and on the adjournment application of the accused persons, case was adjourned on cost to 20.6.2006 for cross-examination with a direction to the defence lawyer that they will cross-examine the witnesses at 7.00 AM. When the case was called out on 20.6.2006 at about 7.00 AM, no counsel was present. Again the case was called out at 7.20 AM, 8.00 AM, 8.20 AM but no lawyer was present to cross-examine the witnesses. The trial court closed the cross-examination of P.W.2.
7. The trial court has also mentioned the fact that above session trial was received in his court on 12.6.2006 form the Sessions Judge. Since the High Court had issued a direction to expedite and conclude the trial within six months, the trial court fixed 17.6.2006, 20.6.2006, 22.6.2006, 24.6.2006 for the prosecution evidence. On 17.6.2006 since prosecution witness was not present the trial court fixed 19.6.2006 and summoned the prosecution witness on that date. The examination-in-chief of Mahavir Singh, the prosecution witness, was recorded but the accused persons did not cross-examined him and moved adjournment application, and the trial court adjourned the case and fixed 20.6.2006. When the counsel of accused persons did not turn up inspite of the case was called out four time nor they moved adjournment application, cross-examination of P.W.2 Mahavir Singh, was closed. The statement of Mahavir Singh was recorded in present of counsel for the accused persons. The trial court has also mentioned in his comment that since direction has already been given by this Court to expedite and conclude the trial within six months, if the witness is present then his statement should be recorded in accordance with law. After considering this comment the Sessions Judge rejected the transfer application.
8. Now the ground taken in the present application before this Court that the Sessions Judge has no power to transfer a part heard matter because the Sessions Judge himself has framed charge against accused persons.
9. Before deciding this point it is necessary to mention Section 408 and 409, Cr.P.C. Section 408(1), Cr.P.C. reads as follows:
408(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.
10. Sub-section (2) of Section 409, Cr.P.C. reads as follows:
409(1)...
(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 appear which he has made over to any Additional Sessions Judge.
11. So both the sections speak two stages; one to the stage of case and another where case stops into the stage of trial, i.e., with the framing of charge.
12. The word 'trial' is not defined in the present Code of Criminal Procedure. In the Code of 1872, word trial was defined as the proceedings taken in the court after a charge had been drawn up and included the punishment of the offender. That definition was, however, omitted in the subsequent Codes. All that the Code of 1973 defines is an inquiry under Section 2(g), which defines inquiry as meaning every inquiry other than trial conducted under the Code by a Magistrate or a court. The definition of trial which was given in Code of 1872 was dropped in subsequent amendment and also does not occur in the Act 1973. Chapter XVIII deals with the trial before a court of Session. Section 225, Cr.P.C. requires a Public Prosecutor to conduct every trial before a court of session. Section 226 Cr.P.C. sets out the proceedings when the accused appears or brought before the court in pursuance of the commitment made under Section 209, Cr.P.C. When the Public Prosecutor opens the case by setting out the charge brought against the accused and state the evidence by which he propose to prove the guilt of the accused. The Sessions Judge then has to consider the record of the case and documents submitted by the prosecution and after hearing the statement of the accused and the prosecution, the Judge, if he considers that there is no sufficient ground for proceeding against the accused, can discharge the accused after recording his reasons for doing so, under Section 227, Cr.P.C. In the event of the Judge being satisfied that there are grounds for presuming that the accused has committed an offence, then the charges will be framed against the accused and same has to be read out and explained to the accused and he has to be asked whether he plead guilty of offence or claims to be tried. This procedure is contained in Section 228 of Cr.P.C. If he does not plead guilty and claims to be tried, the Judge has to fix a date for examination of witnesses.
13. The first case of Ratilal Bhanji Mithani v. State of Maharashtra and Ors. (Supra) relied by he counsel for the petitioner wherein it has been held that warrant case instituted on complaint, once charge is framed Magistrate cannot cancel it or discharge accused and order of discharge passed after framing of charge is illegal. Counsel for the petitioner has relied upon the paragraph No. 26 of the case (Supra) which is as follows:
From the scheme of the provisions noticed above it is clear that in a warrant case instituted otherwise than on a police report 'discharge' or 'acquittal' of accused are distinct concepts applicable to different stages of the proceedings' in Court. The legal effect and incidents of 'discharge' and 'acquittal' are also different. An order of discharge in a warrant case instituted on complaint, can be made only after the process has been issued and before the charge is framed. Section 253(1) shows that as a general rule there can be no order of discharge unless the evidence of all the prosecution witnesses has been taken and the Magistrate considers for reasons to be recorded, in the light of the evidence, that no case has been made out. Sub-section (2) which authorises the Magistrate to discharge the accused at any previous stage of the case if he considers the charge to be groundless, is an exception to that rule. A discharge without considering the evidence taken is illegal. If a prima facie case is made out the Magistrate must proceed under Section 254 and frame charge against the accused. Section 254 shows that a charge can be framed if after taking evidence or at any previous stage, the Magistrate, thinks that there is ground for presuming that the accused has committed an offence triable as a warrant case.
14. This case is not applicable in the present case because the facts of the case and controversy involved in the case, referred to above, is different and the law decided by the Apex Court that once the trial court framed the charge he cannot cancel it.
15. The second case of State of West Bengal v. Gangadhar Dawan and Ors. (Supra) wherein it has been held that when the trial has already begin, the Sessions Judge has no power to transfer the same under Section 408 IPC to any Additional Sessions Judge.
16. In the third case of Punjab Singh and Ors. v. State of Uttar Pradesh (Supra) which is regarding the part heard cases it has been held that a sessions trial commenced by an Additional Sessions Judge who continues to be Additional Sessions Judge in the same Sessions division but whose designation has changed, should be concluded by him or by another Additional Sessions Judge who has been conferred the designation earlier possessed by the Additional Sessions Judge who had commenced the trial. In this case also the ' trial' has been defined.
17. The case relied by the A.G.A. of Radhey Shyam and Anr. v. State of U.P. (Supra) wherein it has been held that 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 and the limitations imposed under Section 409(2), Cr.P.C. are not applicable in exercise of the power of transfer conferred under Section 408, Cr.P.C. The point referred before the Full Bench, after the conflicting judgement on this point that "whether a Sessions Judge has no power under Section 408 of the Code of Criminal Procedure to transfer a part heard case or appeal from the court of an Additional Sessions Judge to some other competent court within his sessions division and the limitations imposed under Section 409 Sub-clause (2) of the Code are applicable in exercise of the power of transfer conferred under Section 408 of the Code." This Court in paragraph No. 16, has held that "the power conferred on the Sessions Judge under Section 408(1), Cr.P.C. to transfer a case or an appeal pending in the Court of an Additional Sessions Judge to another Additional Sessions Judge in his sessions division whether its hearing has commenced or not, is thus an independent judicial power which is not subject to the bar imposed by Section 409(2), Cr.P.C. on the administrative power of the Sessions Judge of recalling a case or an appeal from an Additional Sessions Judge after the trial of the case or hearing of the appeal has commenced. The Full Bench has held in paragraph No. 21 that " For the reasons given above out answer to the question referred to us is 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 it it is expedient in the interest of justice and the limitations imposed under Section 409(2), Cr.P.C. are not applicable in exercise of the power of transfer conferred under Section 408, Cr.P.C.
18. In view of the law laid down by the Full Bench of this Court (Supra), there is no force in this transfer application.
19. The transfer application is, accordingly, dismissed.