IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL REVISION PETITION NO.424 OF 2019 BETWEEN:
1. Venkateshappa @ Venkatesh S/o Kollappa Aged about 43 years, 2. Gayathri, W/o Venkateshappa Aged about 42 years, Both are residing at No.121, Chinnappa Building, Boomika Layout, Sidedahalli, Nagasandra Post, Bengaluru-560 079.
(By Sri. Vishnumurthy, Advocate) AND:
State of Karnataka By Peenya Police, Represented by SPP High Court of Karnataka, Bengaluru-560 001.
(By Sri. M. Diwakar Maddur, HCGP) ...Petitioners ...Respondent This Criminal revision petition is filed under Section 397 read with 401 of Criminal Procedure Code, praying to set aside the notification dated 04.02.2019 in notification No.ADM-A(A) 76/2019 order dated 08.2.2019 by the Principal City Civil and Sessions Judge, Bengaluru by ordering withdrawn and transfer of the above case i.e., Spl.C.C.No.93/2013 from LIV Additional City Civil and Sessions Judge, sitting in Child Friendly Court, Bengaluru to L Additional City Civil and Sessions Judge, Bengaluru and transfer the above case to LIV Additional City Civil and Sessions Judge, Bengaluru for further proceedings in accordance with law.
This criminal revision petition coming on for Admission, this day, the Court made the following:
ORDER This petition has been filed by the petitioners- accused Nos.1 and 2 challenging the notification dated 4.2.2019 bearing No.ADM-1(A) 76/2019 and order dated 08.02.2019.
2. I have heard learned counsel for the petitioners-accused No.1 and 2 and learned High Court Government Pleader for respondent-State.
3. The factual matrix of the case are that, the case was registered as against the accused Nos.1 and 2 for the offence punishable under Section 376(2)(C) of IPC and read with Section 4, 5 (N) and 6 of Protection of Children’s from Sexual Offences Act, 2012 (hereinafter referred as “POCSO Act” for short) and also under Section 114 read with 17 of the POCSO Act.
4. It is the contention that after charge sheet has been filed, the case was posted before LIV Additional City Civil Sessions Judge, Bengaluru and therein PWs 1 and 2 were partly examined and cross examined and PWs 3 and 4 were fully examined and cross examined. At that time, the notification came to be issued to transfer the Spl.C.C.No.93/2013 pending on the file of LIV Additional City Civil Sessions Judge, Bengaluru. It is his contention that already when the trial has been commenced, then under such circumstances, the said case ought not to have been withdrawn and the same should not have been transferred to 50th Additional City Civil and Sessions Judge. It is his further submission that Section 409 of Cr.P.C enables a Sessions Judge to recall any case before the Additional Sessions Judge, at any time, before the trial has commenced. But though the said transfer has been done by virtue of the Notification and in pursuance of the letter dated 24.1.2019, but the same is not in accordance with law. In order to substantiate the said contention he relied upon the decision in the case of P. SRIDHAR VS STATE BY CUBBON PARK POLICE in ILR 2001 KAR 4283. It is further submitted that the said transfer of the case may be withdrawn and the same may be posted before LIV Additional City Civil Sessions Judge, Bengaluru, to try the case in accordance with law.
5. Per contra learned High Court Government Pleader, vehemently argued and submitted that the said letter has been issued by the Acting Chief Justice and Administrative Judge in order to administer justice. Since many cases are pending in the Court of LIV Additional City Civil Sessions Judge, Bengaluru, and in order to expedite the trial, 200 cases have been withdrawn and they have been made over to L Additional City Civil Sessions Judge, Bengaluru for speedy trial. It is further submitted that under POCSO Act, it mandates that the trial has to be expedite within a period of six months and if all the cases are kept in same Court, the very purpose of the law is going to be defeated, keeping in view the object, the said cases have been transferred to L Additional City Civil Sessions Judge Court, there are no good reasons to interfere with the said notification. On these grounds, he prays to dismiss the petition.
6. I have carefully and cautiously gone through the submission made by the learned counsel appearing for the parties and perused the records.
7. It is not in dispute that earlier, the Special C.C.No.93/2013 was pending on the file of LIV Additional City Civil Sessions Judge and by notification dated 4.2.2019, the same has been withdrawn and transferred to L Additional City Civil Sessions Judge Court, the said transfer has been done in pursuance of the letter dated 24.01.2019 by this Court. It is specific contention of the learned counsel for the petitioner that when a mandate of law says that after the commencement of the trial that the case cannot be withdrawn and transferred to another case by Principal Sessions Court, in order to have a brevity I quote Section 409 Cr.P.C., it reads as under:
409. Withdrawal of cases and appeal by Sessions Judges – (1) A Sessions Judge may withdra 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.
8. Though by close reading of the Section 409 of Cr.p.c., that it enables the Sessions Judge to withdraw any cases pending or made over to any Assistant Sessions judge or Chief Judicial Magistrate, but however Sub Section 2 of Section 409 enables the Sessions Judge to recall any case before the Additional Sessions judge at any time before the trial has been commenced. In that light, the recalling order is not in accordance with provisions of Section 409(2) of Cr.P.C., I am conscious of the fact that in order to have speedy trial, a direction might have been issued to the Principal City Civil and Sessions Judge to give a list of cases to be transferred to the other Court. While sending the list he could have taken care of provision of Section 409 of Cr.P.C., which are the cases in which the trial has not been commenced and the list ought to have been prepared in that fasion. He could have got approval from this Court then he could have made over such cases to 50th LIV Additional City Civil Sessions Judge Court. But, when the said exercise has not been made by the learned Principal City Civil and Sessions Judge, he has taken random of the cases and sent to the Hon’ble this Court and this Court by notification permitted to get them transferred to the 50th Additional City Civil Sessions Judge. In that light, there is a grave error in following the provision of Section 409 of Cr.P.C.
9. In that light, I am of the considered opinion that the petitioner has made out a case so as to allow the same. In that light, petition is allowed and Spl.C.No.93/2013 alone has been withdrawn and made over to the LIV Additional City Civil Sessions Judge, Bengaluru, to dispose in accordance with law.
In view of the disposal of the main petition, IA.No.1/2019 does not survive for consideration and accordingly, 1/2019 is disposed off.
Sd/- JUDGE ag