Friday, 9 October 2015

Whether litigant can seek transfer of case on the ground that Judge is convicting judge?

 The apprehension expressed by the petitioner that he would not
get   a   fair   and   impartial   trial   is   on   the   basis   of   the   incident   which
occurred on 30.07.2015 referred to above. According to the petitioner,
he overheard the conversation between the complainant and his son
while  he  was standing   in  the  parking  area that  from  the  next date
onwards,   the   trial   would   commence   and   all   the   accused   would   be
convicted. After the said conversation was overheard by the petitioner
something   transpired   in   the   Court   wherein   in   the   absence   of   the
advocate on that day appearing for the petitioner, all of a sudden, the
date was fixed i.e. 05.08.2015. This incident led the petitioner to believe
that something is wrong and he would not get justice. It appears that
one of the grounds urged in the application filed by the petitioner under
Section   408   is   quite   curious.   It   says   that   the   Presiding   Officer   is   a
convicting Judge and he spares none. As such, the two grounds are quite
conflicting.   It   gives   an   impression   that   the   accused   is   afraid   of   the
Presiding   Officer   being   a   convicting   Judge   and   on   the   other   hand,
indirectly he is trying to convey that the complainant is quite confident
that he would be able to secure conviction at any cost. The petitioner

definitely is in dilemma. Whether to term his apprehension as reasonable
and   not   the   result   of   the   reaction   of   a   hypersensitive   mind   is   the
question. 
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 4884 of 2015
With
CRIMINAL MISC.APPLICATION NO. 17138 of 2015
 In
SPECIAL CRIMINAL APPLICATION NO. 4884 of 2015



CHANDRKANTBHAI BHAICHANDBHAI SHARMA....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)

CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA

Date : 08/10/2015


1 By this petition under Article 227 of the Constitution of India, the
petitioner – the original accused No.7 calls in question the legality and
validity of the order dated 14.08.2015 passed by the learned Principal
Sessions   judge,   Kheda   at   Nadiad   in   the   Criminal   Miscellaneous
Application No.545 of 2015 arising from the Sessions Case No.291 of
2003. 
2 The case of the petitioner may be summarized as under:
2.1 The petitioner is one of the accused persons against whom an
F.I.R. was lodged by the  respondent No.2 herein  before the  Nadiad
Town   Police   Station   being   C.R.   No.I­286   of   2002   for   the   offence
punishable under Sections 147, 148, 149, 364(A), 120B, 447, 342 and
506(2) of the Indian Penal Code. 
2.2 At   the   end   of   the   investigation,   the   chargesheet   was   filed   on
31.10.2002. The case on being committed to the Court of Sessions was
numbered as Sessions Case No.291 of 2003. By now, almost eighteen
witnesses have been examined. After completion of the examination of
the   eighteen   prosecution   witnesses,   the   complainant   preferred   an
application vide Exhibit – 137 under Section 319 of the Code of Criminal
Procedure, 1973 for joining one Shri Natubhai Maganbhai Edanwala as

an accused in the sessions case. The said application came to be rejected
vide order below Exhibit – 137 dated 18.05.2006. Being dissatisfied with
the   said   order,   the   complainant   preferred   the   Special   Criminal
Application No.1444 of 2006 before this Court. The matter was heard
finally on 02.12.2011 and was ordered to be rejected. It appears that
being dissatisfied with the order passed by this Court in the Special
Criminal Application No.1444 of 2006, the complainant filed a Special
Leave Petition (Criminal) No.17262 of 2012 before the Supreme Court.
The Supreme Court vide order dated 11.01.2013 rejected the said S.L.P.
with an observation that it would be open for the complainant to file an
appropriate application under Section 319 of the Code, if at the end of
the examination of all the witnesses, some material is found to connect
the person sought to be arraigned as an accused with the alleged crime. 
2.3 It is the case of the petitioner that between 2006 and 2013, the
complainant kept on seeking time before the Sessions Court only on the
ground of the pendency of the aforesaid proceedings. 
2.4 It appears that the complainant once again filed an application
under Section 319 of the Code for arraigning Shri Natubhai Maganbhai
Edanwala as an accused in the trial relying on the examination of the
prosecution witnesses Nos.19 to 23. Such an application was allowed.
Shri   Natubhai   Maganbhai   Edanwala, being  dissatisfied   with   such  an

order,   preferred   the   Special   Criminal   Application   No.1731   of   2013
before   this   Court   and   this   Court   has   stayed   the   operation   of   the
impugned order. 
2.5 It is the case of the petitioner that on 31.07.2015, the matter was
on Board before the 3rd Additional Sessions Judge, Kheda at Nadiad. On
that date, the petitioner was standing in the parking area meant for the
four   wheelers.   At   that   time,   the   petitioner   could   overhear   some
conversation   between   the   complainant   and   his   Son   and   they   were
discussing about the trial and were talking to each other that the matter
would be surely taken up for hearing from the next date onwards and all
the accused would definitely be convicted. According to the petitioner,
the Presiding Officer thereafter said something regarding the trial which
the   petitioner   correlated   with   the   conversation   he   had   overheard
between the complainant and his Son. It is the case of the petitioner that
he was quite disturbed with the attitude of the Presiding Officer on that
particular date. 
2.6 Under such circumstances, referred to above, the petitioner moved
an application being the Criminal Miscellaneous Application No.545 of
2015 under Section 408 of the Code of the Criminal Procedure, 1973
before the learned Principal Sessions Judge, Kheda at Nadiad for transfer
of the sessions case to any other Court in the same Sessions Division. 

2.7 It appears that after such an application was filed, the learned
Principal   Sessions   Judge   called   for   the   remarks   of   the   concerned
Presiding Officer, and after taking into consideration the remarks as well
as the position of law discussed in the impugned order, thought fit to
reject the application filed by the petitioner for transfer of the sessions
case. 
2.8 Being dissatisfied, the petitioner has come up with this petition. 
3 Mr. Hriday Buch, the learned counsel appearing for the petitioner
vehemently   submitted   that   the   learned   Principal   Sessions   Judge
committed an error in rejecting the application filed by the petitioner
under Section 408 of the Code for transfer of the sessions case to any
other Court in the same Sessions Division. He submitted that the learned
Judge committed a serious error in placing reliance on the two decisions
of this Court (1) in the case of  Gambhirsinh Bhavsinh Padheriya vs.
State of Gujarat, 1993(1) GLR 649, and (2) Musa Mahmad Malek &
another vs. State of Gujarat, 1995(1) GLR 845.  Mr. Buch submitted
that  by placing  reliance  on  the  aforesaid  two decisions,  the  learned
Judge   committed   an   error   in   taking   the   view   that   once   the   trial
commences, then he has no power to transfer the case to any other
Court in the  same Sessions Division  in exercise of the  power under
Section 408 of the Code. 

4 Mr.   Buch   submitted   that   the   accused   has   a   reasonable
apprehension that a fair and impartial trial would not be held and the
ends of justice makes it expedient that the transfer should be ordered.
He submitted that it is of paramount importance that an accused should
have confidence in the impartiality of the Courts. He submitted that the
question should be considered from the point of view of the fear or
apprehension in the mind of the accused. It is the state of mind of the
accused which is to be seen and not the impression of the Court in
regard to any incident. 
5 Mr. Buch submitted that the application merits consideration and
the impugned order be quashed. 
6 Mr. Buch placed reliance on the decision of the Supreme Court in
the case of Satish Jaggi vs. State of Chhatisgarh and others [2007(3)
SCC 62] and one another decision of the Supreme Court in the case of
Ranjit Thakur vs. Union of India and others, [1987 (4) SCC 611]. 
7 On the other hand, this petition has been vehemently opposed by
Mr.   Aftab   Hussain   Ansari,   the   learned   advocate   appearing   for   the
respondent No.2 – the original complainant and Ms. Hansa Punani, the
learned Additional Prosecutor appearing for the respondent – the State
of Gujarat. They both submitted that no error, not to speak of any error

of law could be said to have been committed by the learned Judge in
rejecting the application and passing the impugned order. They both
submitted that the apprehension expressed by the petitioner herein is
absolutely baseless. Such an apprehension must be reasonable and not
the   result   of   the   reaction   of   a   hypersensitive   mind.   It   must   not   be
indicative  either  of  a desire  on  the  part of  the  accused to create  a
situation for claiming transfer of the case when the things are not going
his way or of unduly excessive sensitiveness. 
8 They both submitted that the Criminal Court referred to in Section
408 covers only those Courts where the cases can be filed. The criminal
cases are usually filed in the Court of either the Chief Judicial Magistrate
or the Judicial Magistrate. Section 408 refers to those cases and has
nothing to do with the cases that might be transferred to the Chief
Judicial Magistrate or to the Assistant or Additional Sessions Judges
under Section 409. They both submitted that the Sessions Judge could
not have exercised his power under Section 408 in respect of a case
transferred   from   the   Court   of   Sessions   judge   to   the   Court   if   the
Additional Sessions Judge had already commenced with the trial. 
9 They both placed reliance on the judgment delivered by this Court
in the case of  Jayesh Nadlal Shah vs. Jeetendrabhai Darji  (Criminal
Miscellaneous Application (For Transfer) No.17081 of 2014 decided on

03.11.2014).  They both  submitted  that there  being  no merit in  this
petition, the same be rejected. 
10 Having heard the learned counsel appearing for the parties and
having gone through the materials on record, the only question that falls
for my consideration is whether the learned Principal Sessions Judge
committed any error in passing the impugned order. 
11 There are two issues which I need to consider in this matter. First,
the question of law whether the application under Section 408 of the
Code filed by the petitioner herein for transfer of the sessions case is
maintainable,   and   secondly,   whether   any   case   is   made   out   by   the
petitioner for transfer even if the application filed by him under Section
408 is held to be maintainable. 
12 Before adverting to the submissions of the learned counsel, let me
have a cursory look at some of the provisions of the Code of Criminal
Procedure, 1973. 
12.1 Section 6 falling in Chapter II speaks of classes of criminal cases.
Section 6 reads thus:
“6. Classes of Criminal Courts
Besides the High Courts and the Courts constituted under any law, other
than this Code, there shall be, in every State,  the following classes of
Criminal Courts, namely:­
(i) Courts of Session;

(ii) Judicial Magistrates of the first class and, in any metropolitan area,
Metropolitan Magistrates;
(iii) Judicial Magistrates of the second class; and
(iv) Executive Magistrates.”
12.2 Section 9 speaks of the Court of Sessions:
“9. Court of Session
(1) The State Government  shall establish a Court of Session for every
sessions division.
(2)   Every   Court   of   Session   shall   be   presided   over   by   a   Judge,   to   be
appointed by the High Court.
(3) The High Court may  also appoint  Additional  Sessions  Judges and
Assistant Sessions Judges to exercise jurisdiction in a Court of Session.
(4) The Sessions Judge of one sessions division may be appointed by the
High Court to be also an Additional Sessions Judge of another division,
and in such case he may sit for the disposal of cases at such place or places
in the other division as the High Court may direct.
(5) Where the office of the Sessions Judge is vacant, the High Court may
make arrangements for the disposal of any urgent application which is, or
may be, made or pending before such Court of Session by an Additional or
Assistant Sessions Judge, or, if there be no Additional or Assistant Sessions
Judge, by a Chief Judicial Magistrate, in the sessions division; and every
such Judge or Magistrate shall have jurisdiction to deal with any such
application.
(6) The Court of Session shall ordinarily hold its sitting at such place or
places as the High Court may,  by notification,  specify; but, if, in any
particular case, the Court of Session is of opinion that it will tend to the
general convenience of the parties and witnesses to hold its sittings at any
other   place   in   the   sessions   division,   it   may,   with   the   consent   of   the
prosecution and the accused, sit at that place for the disposal of the case or
the examination of any witness or witnesses therein.
Explanation:For the purposes of this Code, "appointment" does not include
the   first   appointment,   posting   or   promotion   of   a   person   by   the
Government to any Service, or post in connection with the affairs of the
Union or of a State, where under any law, such appointment, posting or
promotion is required to be made by Government.”

12.3 Section   10   speaks   of   the   subordination   of   Assistant   Sessions
Judge:
“10. Subordination of Assistant Sessions Judges
(1) All Assistant Sessions Judges shall be subordinate to the Sessions Judge
in whose Court they exercise jurisdiction.
(2) The Sessions Judge may, from time to time, make rules consistent with
this Code, as to the distribution of business among such Assistant Sessions
Judges.
(3) The Sessions Judge may also make provision for the disposal of any
urgent application, in the event of his absence or inability to act, by an
Additional or Assistant Sessions Judge, or, if there be no Additional or
Assistant Sessions Judge, by the Chief Judicial Magistrate, and every such
Judge or Magistrate shall be deemed to have jurisdiction to deal with any
such application.”
12.4 Section 194 speaks of the Additional and Assistant Sessions Judge
to try cases made over to them: 
“194. Additional and Assistant Sessions Judges to try cases made
over to them
An Additional Sessions Judge 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.”
12.5 Section 406 provides for the power of Supreme Court to transfer
cases and appeals:
“406. Power of Supreme Court to transfer cases and appeals
(1) Whenever it is made to appear to the Supreme Court that an order
under this section is expedient for the ends of justice, it may direct that
any   particular   case   or  appeal   be   transferred  from   one   High   Court   to
another High Court or from a Criminal Court subordinate to one High
Court   to   another   Criminal   Court   of   equal   or   superior   jurisdiction

subordinate to another High Court.
(2) The Supreme Court may act under this section only on the application
of the Attorney­General of India or of a party interested, and every such
application   shall   be   made   by   motion,   which   shall,   except   when   the
applicant is the Attorney­General of India or the Advocate­General of the
State, be supported by affidavit or affirmation.
(3) Where any application for the exercise of the powers conferred by this
section is dismissed, the Supreme Court may, if it is of opinion that the
application was frivolous or vexatious, order the applicant to pay by way
of compensation to any person who has opposed the application such sum
not exceeding one thousand rupees as it may consider appropriate in the
circumstances of the case.”
12.6 Section 407 provides for the power of High Court to transfer cases
and appeals:
“407. Power of High Court to transfer cases and appeals
(1) Whenever it is made to appear to the High Court­
(a)   that   a  fair  and   impartial   inquiry   or   trial   cannot  be   had   in  any
Criminal Court subordinate thereto, or
(b) that some question of law of unusual difficulty is likely to arise, or
(c) that an order under this section is required by any provision of this
Code, or will tend to the general convenience of the parties or witnesses, or
is expedient for the ends of justice,
it may order­
(i) that any offence be inquired into or tried by any Court not
qualified under sections 177 to 185 (both inclusive), but in other
respects competent to inquire into or try such offence;
(ii) that any particular case or appeal, or class of cases or appeals,
be transferred from a Criminal Court subordinate to its authority
to any other such Criminal Court of equal or superior jurisdiction;
(iii) that any particular case be committed for trial to a Court of
Session; or
(iv) that any particular case or appeal be transferred to and tried
before itself.
(2) The High Court may act either on the report of the lower Court, or on
the application of a party interested, or on its own initiative :

Provided that no application shall lie to the High Court for transferring a
case from one Criminal Court to another Criminal Court in the same
sessions division, unless an application for such transfer has been made to
the Sessions Judge and rejected by him.
(3) Every application for an order under sub­section (1) shall be made by
motion, which shall, except when the applicant is the Advocate­General of
the State, be supported by affidavit or affirmation.
(4) When such application is made by an accused person, the High Court
may   direct   him   to   execute   a   bond,   with   or   without   sureties,   for   the
payment of any compensation which the High Court may award under
sub­section (7).
(5) Every accused person making such application shall give to the Public
Prosecutor notice in writing of the application, together with a copy of the
grounds on which it is made; and no order shall be made on the merits of
the application unless at least twenty­four hours have elapsed between the
giving of such notice and the hearing of the application.
(6) Where the application is for the transfer of a case or appeal from any
subordinate Court, the High Court may, if it is satisfied that it is necessary
so to do in the interests of justice, order that, pending the disposal of the
application, the proceedings in the subordinate Court shall be stayed, on
such terms as the High Court may think fit to impose :
Provided that such stay shall not affect the subordinate Court's power of
remand under section 309.
(7) Where an application for an order under sub­section (1) is dismissed,
the High Court may, if it is of opinion that the application was frivolous or
vexatious,  order the applicant  to pay by way of compensation  to any
person   who   has   opposed   the   application   such   sum   not   exceeding   one
thousand rupees as it may consider proper in the circumstances of the
case.
(8) When the High Court orders under sub­section (1) that a case be
transferred from any Court for trial before itself, it shall observe in such
trial the same procedure which that Court would have observed if the case
had not been so transferred.
(9)   Nothing   in   this   section   shall   be   deemed   to   affect   any   order   of
Government under section 197.”

12.7 Section 408 provides for the power of Sessions Judge to transfer
cases and appeals:
“408. Power of Sessions Judge to transfer cases and appeals
(1) Whenever it is made to appear to Sessions Judge that an order under
this sub­section 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.
(2) The Sessions Judge may act either on the report of the lower Court, or
on the application of a party interested, or on his own initiative.
(3) The provisions of sub­sections (3), (4), (5), (6), (7) and (9) of section
407 shall apply in relation to an application to the Sessions Judge for an
order under sub­section (1) as they apply in relation to an application to
the High Court for an order under sub­section (1) of section 407, except
that sub­section (7) of that section shall so apply as if for the words "one
thousand  rupees"  occurring  therein,  the words  "two  hundred  and  fifty
rupees" were substituted.”
12.8 Section 409 provides for the withdrawal of cases and appeals by
the Sessions Judge:
“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
sub­section (1) or sub­section (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.”
12.9 Section 412 speaks of the reasons to be recorded:

“412. Reasons to be recorded
A   Sessions   Judge   or   Magistrate   making   an   order   under   section   408,
section 409, section 410 or section 411 shall record his reasons for making
it.”
13 Keeping   in   mind   the   above   referred   provisions,   I   proceed   to
answer the question whether the power under Sub­section (1) of Section
408 of the Code can be exercised by the Sessions Judge to transfer a case
from one Additional Sessions Judge to any Additional Sessions Judge in
his Sessions Division, even if the trial has commenced?
14 A Division Bench of the Delhi High Court in the case of Avinash
Chander vs. State, 1983 Criminal Law Journal 595 held as under:
“I have not been able to quite see how, having once said that the Court of
Addl. Sessions Judge is a criminal court, does it then cease to be so under
S.408, Cr. P. C. and limit the power of the Sessions Judge exercisable
under that section? It is not possible by any principle of interpretation to
have read sub­section (1A) as a proviso or qualification to the powers
available under sub­sec. (1C) of S.528. The new Code has split S.528 into
S.408 (old S.528 (1C)) and S.409 (old S.526 (1A)). That cannot be and
is not without any significance. Section 408 is the general power to be
exercised for the ends of justice while S.409 provides for a power more of
an administrative nature given to the Sessions Judge to withdraw any case
or appeal made over by him to the Addl. Sessions judge.” 
(Emphasis supplied)
15 The aforenoted decision of the Delhi High Court was followed by a
Full Bench of the Allahabad High Court in the case of Radhey Shyam vs.
State of U.P. (1984 Allahabad Law Journal 666). It was held as under:
"It is necessary to point out that the power conferred on the Sessions Judge
under Section 409 (1), Cr.PC to withdraw any case or appeal from or
recall any case or appeal which he had made over to an Assistant Sessions

Judge  or the Chief  Judicial  Magistrate  subordinate  to him,  the power
conferred on the Chief Judicial Magistrate under Section 410 (1), Cr.PC to
withdraw any case from or recall any case which he has made over to any
Magistrate subordinate to him and to inquire into or try such case himself,
or refer it for inquiry or trial to any other such Magistrate competent to
inquire   into   or   try   the   same,   the   power   conferred   on   the   Judicial
Magistrate under Section 410 (2), Cr.PC to recall any case made over by
him under Sub­section (2) of Section 192, Cr.PC to any other Magistrate
and to inquire into or try such case himself and the power conferred on
District Magistrate or Sub­Divisional Magistrate under Section 11, Cr.PC
to make over, for disposal, any proceeding which has been started before
him, to any Magistrate subordinate to him and to withdraw any case
from,   or  recall   any  case   which   he  has  made   over   to,   any   Magistrate
subordinate to him, and dispose of such proceeding himself or refer it for
disposal   to   any   other   Magistrate,   are   all   administrative   powers   in
connection with the distribution  of business.  These powers are distinct
from the judicial power of transfer conferred on the High Court and the
Sessions   Judge   to   be   exercised   if   expedient   for   the   ends   of   justice."
(Emphasis supplied)
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 :
(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 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 part­heard 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   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 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.
22 Thus, so far as the first question is concerned, I hold that the
application filed by the petitioner under Section 408 of the Code for
transfer is maintainable and the two decisions of this Court referred to
and   relied   upon   by   the   learned   Principal   Sessions   Judge   have   no
application in the present case. 
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, 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 Thus,   in   the   above   noted   case   also,   the   issue   was   altogether
different and what was being considered is Section 409 of the Code. 
25 I have already explained in details the fine distinction between
Sections 406, 407 and 408 compared with Sections 409, 410(1) and (2)
and 411 of the Code. I have already explained that 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) of the Code. 
26 I shall now proceed to answer the second question whether any
case   has  been   made   out   for   transfer   or   not.   In   the   case   of  Jayesh
Nandlal Shah (supra), this Court had the occasion to consider the scope
of Section 407 of the Code and the circumstances in which a criminal
trial   could   be   transferred   to   any   other   Court   in   the   same   Sessions
Division. After considering the various provisions, this Court held:
“It is quite explicit on plain reading of the provisions of Section 407
of the Code of Criminal Procedure that if the High Court is shown or if it is
spelt out to the satisfaction of the High Court that (i) a fair and impartial
inquiry or trial cannot be had in any criminal court subordinate thereto;
or (ii) that some question of law of unusual difficulty is likely to arise; or
(iii) that some of the provisions of Criminal Procedure Code will require
passing of such order for the convenience of the parties or witnesses; or
(iv) it is in the expediency of the larger interest of justice, the High Court

may pass order as incorporated under clauses (i) to (iv) of sub­section(1)
of Section 407 of the Code of Criminal Procedure as quoted above.
A bare reading indicates that Section 407 enacted with a view to
enable the parties to criminal cases to make an application for transfer in
case that party apprehends that he cannot get fair and impartial enquiry
or trial. The elementary rule of interpretation is that 'Animus Imponentis'
i.e. intention of law givers has to be ascertained. At the same time, there is
another maxim 'Ut Res Magis Valeat Quam Pereat' which connotes that a
statute  or any enacting  provision  must  be construed  to make  it more
effective. (see AIR 1959 SC 356). The Parliament has employed the word
fair and impartial trial with obvious object that accused should not be
prejudiced. In common parlance, trial can be said to be fair if only when it
is conducted with honesty. In other words, where it is free from injustice,
prejudice   and   of   favouritism.   According   to   Collins   Cobuild   English
Language  Dictionary  (Collins  London  and  Glasgow 1987  Edition  page
509), the word 'fair' means reasonable according to generally accepted
standard about what is right and just. Next meaning given to the word
'fair' is that it gives the same or equal treatment to every one concerned.
The law requires that an application for transfer can be moved when the
applicant  apprehends that he would  not  get equal  treatment  with  the
opposite party or that the personal feelings of the court would influence his
judgment. The aforesaid provision emanates from a Latin maxim 'Actus
Curiae Neminem Gravabit' which means that an act of the court shall
prejudice   no   man.   It   is   better   to   make   a   reference   of   American
Jurisprudence (Volume 21, 2nd Edition para 415) which deals with the
change of venue or scope of transfer application in criminal matters. 
“The   Courts   are   deemed   to   have   inherent   power   to   direct   the
change   of   venue   in   order   that   an   accused   may   have   fair   and
impartial   trial.   Change   of   venue   can   be   had   only   upon   some
ground specified in the Statute. The right of the accused to a change
of venue upon the ground of inability to obtain a fair trial in the
country where the indictment is found or because of local prejudice
and   excitement   is   universally   recognised.   It   is   a   fundamental
principle of our law that every person charged with crime shall
have a right to fair and impartial trial.”
It is well  settled  position  of law that  where  the accused  has a
reasonable apprehension that a fair and impartial trial or inquiry cannot
be had or where the ends of justice make it expedient, transfer should be
ordered. It is of paramount importance that party arraigned before the
Court should have confidence in the impartiality of the courts. It is equally
well settled that it is a duty of the High Court at all events to clear away
everything which might reasonably create suspicion and distrust in the
courts   and   so   to   promote   and   maintain   in   the   public   a   feeling   of

confidence in the administration of justice, which is so essential for social
order and security. It is of the fundamental importance that justice should
not only be done but should manifestly and undoubtedly be seen to be
done. However, at the same time, it is necessary to bear in mind that it is
not any and every apprehension in the mind of the accused that can be a
ground for transfer, but it should be a reasonable apprehension which the
High Court considered it reasonable for the accused as a reasonable person
to entertain in the circumstances of the case. Even the absence of bias or
prejudice, however, does not completely cover the issue. The question has
to be considered from the point of view of the fear or apprehension in the
mind   of   the   accused   and   whether   the   High   Court   considers   that   the
accused as a normal and reasonable person could reasonably entertain the
fear or apprehension in the circumstances complained of.”
“To a certain extent, the learned counsel appearing for the accused
may be justified in submitting that in dealing with an application for
transfer, the Court has to consider not only the question, whether there
has been any real bias in the mind of the Magistrate against the applicant,
but also the additional question whether incidents may not have happened
which,   though   they   may   be   susceptible   of   explanation   and   may   have
happened without there being any real bias in the mind of the Magistrate,
are nevertheless such as are calculated to create in the mind of the accused
applicant a justifiable apprehension that he would not have an impartial
trial. It is the state of mind of the accused which is to be seen and not the
impression of the court in regard to the said incidents. However, as stated
above, the apprehension must, nevertheless, be reasonable and not the
result of the reaction of a hypersensitive mind. It must not be indicative
either of a desire on the part of the accused to create a situation for
claiming transfer of the case when things are not going his way or of
unduly   excessive   sensitiveness.   The   accused   must   not   be   unduly
imaginative   to   see   bias   where   it   cannot   be   reasonably   seen   from   the
position which the accused occupies. Every case, thus, has to be dealt with
on its own peculiar facts and it is neither desirable nor possible to lay any
rigid rule which would serve as a straitjacket in all cases.”
27 In the case of Satish Jaggi (supra), the Supreme Court observed
as under:
“5. The law with regard to transfer of cases is well settled. This Court in
the matter of Gurcharan Dass Chadha v. State of Rajasthan (AIR 1966 SC
1418) held that a case is transferred if there is a reasonable apprehension
on the part of a party to a case that justice will not be done. This Court
said  that   a petitioner   is not  required  to demonstrate   that   justice  will
inevitably fail. He is entitled to a transfer if he shows circumstances from

which it can be inferred that he entertains an apprehension and that it is
reasonable in the circumstances alleged. This Court further held that it is
one of the principles of the administration of justice that justice should not
be done but it should be seen to be done. The court has further to see
whether the apprehension is reasonable or not. This Court also said that
to judge the reasonableness of the apprehension, the state of the mind of
the person who entertains the apprehension is no doubt relevant but that
is   not   all.   The   apprehension   must   not   only   be   entertained,   but   must
appear to the court to be a reasonable apprehension.
6. It was further held by this Court in Mrs. Maneka Sanjay Gandhi and
Anr. v. Miss Rani Jethmalani (AIR 1979 SC 468) that assurance of a fair
trial is the first imperative of the dispensation of justice and the central
criterion for the court to con sider when a motion for transfer is made is
not the hypersensitivity or relative convenience of a party or availability of
legal services or any like grievance.  Something more substantial,  more
compelling, more imperiling, from the point of view of public justice and
its attendant  environment,  is necessitous  if the court  is to exercise  its
power of transfer. This is the cardinal principle although the circumstances
may be myriad and vary from case to case. This Court, in the facts and
circumstances of the case, said that the grounds for the transfer have to be
tested  on this  touchstone   bearing  in mind   the rule  that  normally   the
complainant has the right to choose any Court having jurisdiction and the
accused  cannot  dictate  where  the case against him should be tried.  It
further said that even so, the process of justice should not harass the
parties and from that angle the Court may weigh the cir circumstances.
7. In Abdul Nazar Madani v. State of Tamil Nadu (AIR 2000 SC 2293)
this Court stated that the purpose of the criminal trial is to dispense fair
and impartial justice uninfluenced by extraneous considerations. When it
is shown that public confidence in the fairness of a trial would be seriously
undermined, any party can seek the transfer of a case within the State
under Section 407 and anywhere in the country under Section 406 of the
Code. The apprehension of not getting a fair and impartial inquiry or trial
is required to be reasonable and not imaginary based upon conjectures
and surmises. If it appears that the dispensation of criminal justice is not
possible   impartially   and   objectively   and   without   any   bias,   before   any
Court or even at any place, the appropriate Court may transfer the case to
another   Court   where   it   feels   that   holding   of   fair   and   proper   trial   is
conducive.   No   universal   or   hard   and   fast   rules   can   be   prescribed   for
deciding a trans fer petition which has always to be decided on the basis of
the facts of each case. Convenience of the parties including the witnesses to
be produced at the trial is also a relevant consideration for deciding the
trans fer petition. The convenience of the parties does not necessarily mean
the convenience  of the petitioners alone who approached the Court on
misconceived  notions  of apprehension.  Convenience  for the purposes of
trans fer means the convenience of the prosecution, other accused, if any,

the witnesses and the larger interest of the society.
8. In G.X. Francis v. Banke Bihari Singh (AIR 1958 SC 309) this Court felt
that where public confidence in the fairness of the trial is likely to be
seriously undermined under the circumstances of the case, transfer petition
could be allowed. On finding that "there is uniformity of testimony from
both sides about the nature of surcharged communal tension in that area,"
the Court found that the local atmosphere was not conducive to a fair and
impartial trial which was a good ground for transfer. The Court rejected
the  contention  of the  petitioner  therein  regarding   the  wild  allegations
made to the ef fect that no Court in the State of M.P. would be unbiased or
impartial for dispensing justice. In the peculiar facts and circumstances of
the   case,   the   trial   was   transferred   to   an   adjoining   Court.   The   mere
existence of a surcharged atmosphere without there being proof of inability
for holding fair and impartial trial cannot be made a ground for trans fer
of a case. Alleged communally surcharged atmosphere has to be considered
in the light of the accusations made and the nature of the crime committed
by the accused seeking transfer of his case. It will be unsafe to hold that as
and when accusations are made regarding the existence of a surcharged
communal atmosphere, the case should be transferred from the area where
existence of such surcharged atmosphere is alleged.
9.   The  position   was  also  examined  in  Pal  Singh   and   Anr.  v.   Central
Bureau of Investigation and Ors.. In that case, considering the fact that
large number of witnesses had been examined and few more witnesses
were left to be examined, this Court set aside the order of the High Court
transferring the case from one Sessions Court to another. The High Court
was, therefore, held to be not justified in entertaining  the petition for
transfer.
10. In this case, one thing which has to be kept in view is that the
Sessions Judge himself has not indicated his disinclination to hear the
matter. That is probably because he believes that the mere fact that his
brother is known to some political heavy weight cannot stand in his way
of discharging judicial function impartially without fear and favour. These
are the hallmarks of judicial system. A judicial officer in whatever capacity
he may be functioning has to act with the belief that he is not to be guided
by any factor other than to ensure that he shall render a free and fair
decision which according to his conscience is the right one on the basis of
materials placed before him. There can be no exceptions to this imperative,
but at the same time there should not be any scope given to any person to
go away with the feeling that the Judge was biased, however unfounded
the impression may be. 
“7. The qualities desired of a Judge can be simply stated: "that if he
be a good one and that he be thought to be so". Such credentials
are not easily acquired. The Judge needs to have "the strength to

put an end to injustice" and "the faculties that are demanded of the
historian and the philosopher and the prophet". A few paragraphs
from the book "Judges" by David Pannick which are often quoted
need to be set out here:
"The Judge has burdensome responsibilities to discharge. He
has power over the lives and livelihood of all those litigants
who   enter   his   Court.   His   decisions   may   well   affect   the
interests of individuals and groups who are not present or
represented in Court. If he is not careful, the Judge may
precipitate   a   civil   war.   Or   he   may   accelerate   a
revolution.....He   may   accidentally   cause   a   peaceful   but
fundamental   change   in   the   political   complexion   of   the
country.
xx xx xx xx
Judges   today   face   tribulations,   as   well   as   trials,   not
contemplated   by   their   predecessors.   Parliament   has
recognized the pressures of the job by providing that be fore
the Lord Chancellor recommends any one to the Queen for
appointment to the Circuit Bench, the Lord Chancellor 'shall
take   steps   to   satisfy   himself   that   the   person's   health   is
satisfactory'........This   seems   essential   in   the   light   of   the
reminiscences of Lord Roskill as to the mental strain which
the job can impose...........Lord Roskill added that, in his
experience, 'the workload is in tolerable: seven days a week,
14 hours a day'................
xx xx xx xx
He (Judge) is a symbol of that strange mixture of reality
and illusion, democracy and privilege, humbug and decency,
the subtle  network  of compromises,  by which  the nation
keeps itself in its familiar shape". (See Brij Mohan Lal v.
Union of India and Ors. (2002 (5) SCC 1)
11. We are sure that the present Sessions Judge would have acted in the
true sense of a judicial officer. But nevertheless to ensure that justice is not
only done, but also seen to be done and the peculiar facts of the case, we
feel that it will be appropriate if the High Court transfers the case to some
other Sessions Court in Raipur itself. We make it clear that the transfer
shall not be construed as casting any aspersion on the Learned Sessions
Judge. The Trial Court before whom the trial is to continue should ensure
that the trial is completed by the end of May, 2007. Needless to say, the
parties shall co­operate in the completion of the trial within the said time.”
28 In the case of Ranjit Thakur (supra), the Supreme Court observed
as under:

“The test of real likelihood of bias is whether a reasonable person,
in possession of relevant information, would have thought that bias was
likely and whether the authority concerned was likely to be disposed of
decide   the   matter   only   in   a   particular   way.   What   is   relevant   is   the
reasonableness of the apprehension  in that regard  in the mind of the
party. The proper approach for the judge is not to look at his own mind
and ask himself, however honestly, “Am I biased ?” ; but so look at the
mind of the party before him.”
29 The apprehension expressed by the petitioner that he would not
get   a   fair   and   impartial   trial   is   on   the   basis   of   the   incident   which
occurred on 30.07.2015 referred to above. According to the petitioner,
he overheard the conversation between the complainant and his son
while  he  was standing   in  the  parking  area that  from  the  next date
onwards,   the   trial   would   commence   and   all   the   accused   would   be
convicted. After the said conversation was overheard by the petitioner
something   transpired   in   the   Court   wherein   in   the   absence   of   the
advocate on that day appearing for the petitioner, all of a sudden, the
date was fixed i.e. 05.08.2015. This incident led the petitioner to believe
that something is wrong and he would not get justice. It appears that
one of the grounds urged in the application filed by the petitioner under
Section   408   is   quite   curious.   It   says   that   the   Presiding   Officer   is   a
convicting Judge and he spares none. As such, the two grounds are quite
conflicting.   It   gives   an   impression   that   the   accused   is   afraid   of   the
Presiding   Officer   being   a   convicting   Judge   and   on   the   other   hand,
indirectly he is trying to convey that the complainant is quite confident
that he would be able to secure conviction at any cost. The petitioner

definitely is in dilemma. Whether to term his apprehension as reasonable
and   not   the   result   of   the   reaction   of   a   hypersensitive   mind   is   the
question. 
30 It is not in dispute that the Presiding Officer concerned has not
examined a single witness till this date. The witnesses examined so far
were all examined by the Predecessor in Office. The Presiding Officer
himself has also not indicated his disinclination to hear the matter. At
the same time, he has offered quite a stiff resistance to the plea of
transfer as the same is revealed from his remarks forwarded to the
Principal Sessions Judge. I am sure that the present Additional Sessions
Judge   would   have   acted   in   a   true   sense   of   a   Judicial   Officer.   But
nevertheless, to ensure that justice is not only done, but also seems to be
done   and   in   the   peculiar   facts   of   the   case,   I   feel   that   it   will   be
appropriate if the Principal Sessions Judge transfers the case to any
other Additional Sessions Judge in the same Sessions Division. I make it
abundantly clear that the transfer shall not be construed as casting any
aspersions on the learned Additional Sessions Judge. 
31 In   the   result,   this   petition   is   allowed.   The   impugned   order   is
hereby quashed. The application filed by the petitioner under Section
408 of the Code at Exhibit – 6 is hereby allowed. The Principal Sessions
Judge shall transfer the Sessions Case No.291 of 2003 to any other Court

of the learned Additional Sessions Judge in the same Sessions Division at
the   earliest.   The   learned   Additional   Sessions   Judge   who   would   be
assigned the sessions cases shall see to it that the trial is completed at
the earliest, preferably within a period of six months from the date of
receipt of the writ of this order. Rule is made absolute. 
32 In view of the order passed in the main matter, the connected
Criminal Miscellaneous Application No.17138 of 2015 is also disposed
of. 
(J.B.PARDIWALA, J.)
FURTHER ORDER
After   the   order   is   pronounced,   Mr.   Aftabhussain   Ansari,   the
learned   advocate   appearing   for   the   respondent   No.2   –   original
complainant prays for stay of the operation of the order. In view of what
is stated above, the prayer is declined.
(J.B.PARDIWALA, J.)
chandresh

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