Gambhirsinhji Bhavsinhji Padheriya v. State Of Gujarat .

1. Can the Sessions Judge withdraw a part-heard case from the Additional Sessions Judge in exercise of his purported powers under Section 399 of the Criminal Procedure Code, 1973 ('the CrP.C.' for brief) ? In the alternative, can the Sessions Judge withdraw a part-heard case from the Additional Sessions Judge in exercise of his powers under Section 409 thereof ? These are the main questions that have cropped up in this petition under Section 482 of the Cr. P. C.

2. The petitioner has been facing trial for the offences inter alia punishable under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 ('the Act' for brief). It has come to be registered as Sessions Case No. 110 of 1991 in the Sessions Court at Rajkot. It appears that the learned predecessor of the learned present Sessions Judge, by his order passed on 3rd December, 1992 assigned that sessions trial to the learned Additional Sessions Judge, named, Shri V.C. Mandalia, for trial and disposal. It is not in dispute that the learned Additional Sessions Judge framed the charge against the present petitioner and proceeded with the trial on 10th December, 1992. It appears that in the course of trial two witnesses came to be examined and certain documents produced on the record of the case on behalf of the prosecution as well as the defence were admitted to record. It appears that on 10th December, 1992, the learned Public Prosecutor submitted one application to drop certain prosecution witnesses and got summons issued to certain witnesses and the next date for recording the evidence of the witnesses was fixed on 6th January, 1993. It appears that in the meantime the learned predecessor of the learned present Sessions Judge was transferred and the present learned Sessions Judge assumed his charge on 12th December, 1992. By his order passed on 14th December, 1992, the learned Sessions Judge withdrew Sessions Case No. 110 of 1991 from the learned Additional Sessions Judge. It appears that the trial proceeded with the learned Sessions Judge and some four prosecution witnesses came to be examined in the course of trial. At that stage the present petitioner has approached this Court and has invoked the jurisdiction of this Court under Section 482 of the Cr.P.C. for the purpose of challenging the action of the learned Sessions Judge in withdrawing Sessions Case No. 110 of 1991 pending on the file of the learned Additional Sessions Judge, named, Shri V.C. Mandalia of Rajkot.

3. By the order passed on 13th January, 1993, the report of the learned Sessions Judge was called for. After perusal of that report, this Court issued rule in this petition and made it returnable today.

4. In his report, the learned Sessions Judge has come forward with a case that he has exercised his powers under Section 399 of the Cr.P.C. for the purpose. According to him, in all other districts, the powers to try the offence punishable under the Act are vested in the Sessions Judge and in no other Judge. He has, however, noticed that the District of Rajkot is an exception. He has, however, stated in his report that under the belief that the Sessions Judge alone has the powers to try the offences under the Act, he has exercised his powers under Section 399 of the Cr.P.C.

5. It does not become clear from aforesaid report of the learned Sessions Judge whether he has tried to exercise his revisional powers under Section 399 of the Cr.P.C. with respect to the assignment of the matter to the concerned learned Additional Sessions Judge by his predecessor-in-office as the Sessions Judge of Rajkot, named, Shri A. M. Kapadia, or with respect to the proceedings conducted by the concerned learned Additional Sessions Judge. For the time being I assume that the learned Sessions Judge of Rajkot in his aforesaid report has indicated that he has exercised his revisional powers with respect to the proceedings before the concerned learned Additional Sessions Judge.

6. I think the learned Sessions Judge has not correctly read the provisions of Sections 399 and 401 of the Cr.P.C. It is true that the Sessions Court is also vested with revisional powers and the scope of such revisional powers is similar to those exercisable by the High Court under Section 401 thereof. It is pertinent to note that revisional powers are exercisable for correction of errors, if any, made by subordinate Courts and not by Courts of equal rank. It appears that the learned Sessions Judge overlooked the provisions of Section 400 of the Cr.P.C. It empowers an Additional Sessions Judge to exercise the same powers as the Sessions Judge with respect to a case assigned to him for hearing and disposal. It would mean that an Additional Sessions Judge is also capable of exercising revisional powers with respect to orders passed by the subordinate Courts if such revisional proceedings are assigned to him. An Additional Sessions Judge for the purpose of exercise of revisional powers is on par with the Sessions Judge as transpiring from the scheme of the Cr.P.C. reflected more particularly in Section 400 thereof.

7. Again, Section 401(1) of the Cr.P.C. confers upon the revisional Court the powers conferred on a Court of appeal by certain provisions named therein. It cannot be gainsaid that appellate powers are exercisable over subordinate Courts and not Courts of equal rank. In this connection a reference deserves to be made to Section 374 of the Cr.P.C. The appeal against the order of conviction passed by an Additional Sessions Judge lies to the High Court. There is no provision in the Cr.P.C. providing for an appeal against any order of an Additional Sessions Judge to a Sessions Judge. In that view of the matter, the learned Sessions Judge could not exercise any appellate powers over an Additional Sessions Judge. I think the resort to Section 399 read with Section 401 of Cr.P.C. by the learned Sessions Judge for the purpose of withdrawing the sessions case in question from the file of the Additional Sessions Judge, with respect, is thoroughly misconceived. In my opinion, the learned Sessions Judge has overlooked the basic and elementary principle of law by taking recourse to Section 399 read with Section 401 of the Cr.P.C. for the purpose of justifying his action of withdrawal of the sessions case in question from the file of the learned Additional Sessions Judge.

8. If the learned Sessions Judge has sought to exercise his revisional powers with respect to the assignment of the concerned case to concerned learned Additional Sessions Judge by his predecessor-in-office as the Sessions Judge of Rajkot, named, Shri A. M. Kapadia, I think the learned author of the aforesaid report is not right in exercise of such revisional powers for the reasons given hereinabove. With respect, the learned Sessions Judge could not have revised any such order passed by his predecessor-in-office in this fashion under Section 399 of the Cr.P.C. That would amount to review of the order passed by his predecessor-in-office. The learned Sessions Judge ought to have kept in mind the elementary principle of law that the power of review is a creature of the statute and no provision in the Cr.P.C. would empower the learned Sessions Judge to review any order passed by his predecessor-in-office.

9. It would be quite proper to look at Section 409 of the Cr.P.C. at this stage. Under Sub-section (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 Section 409(2) of the Cr.P.C.

10. No ruling is needed in support of this elementary point of law. My attention has however been invited to one ruling of the Karnataka High Court in the case of Amritliappa and Anr. v. State of Karnataka reported in 1982 Cri.LJ 1336. In that case one sessions case was made over to the 2nd Additional Sessions Judge by the Principal Sessions Judge. The trial before the Additional Sessions Judge had commenced and in the course of trial certain witnesses came to be examined. Thereafter on account of certain reasons (found to be inexplicable by the High Court of Karnataka) the learned 2nd Additional Sessions Judge expressed his inability to proceed with the case, and thereupon the Principal Sessions Judge recalled the sessions case in question from the 2nd Additional Sessions Judge and himself tried it. The Sessions Judge examined certain witnesses and on conclusion of the trial the accused came to be convicted and sentenced. In appeal against such conviction and sentence, it has been held:

Section 409(1) of the Criminal Procedure Code would have been applicable in case the Second Addl. Sessions Judge had not commenced the trial. What the principal Sessions Judge has done after passing the above order is to examine one more witness as P. W. 10 and five Court witnesses. He had no jurisdiction to withdraw the cases under Section 409(1) of the Criminal Procedure Code in view of Section 409(2) of the Criminal Procedure Cede and proceed with the trial. Therefore, the trial held by the principal Sessions Judge is not in accordance with law and as such is without jurisdiction.

With respect, I am in agreement with the principle of law enunciated in the aforesaid Division Bench ruling of the Karnataka High Court in the case of Amrithappa (supra). It may be mentioned that in that case the. matter was remanded to the Sessions Court for trial by the Second;

Additional Sessions Judge from the stage where the trial was pending when the order of its recall was made by the Principal Sessions Judge.

11. To the similar effect is the ruling of the Allahabad High Court in the case of Smt. Guhar v. Nizam and Anr. reported in 1981 Cri.LJ (NOC) 22. It has been held therein:

Under Section 409, Criminal Procedure Code a Sessions Judge cannot withdraw or recall any case or appeal pending before a Judge, which is part-heard with him. The intention behind the Code seems to be that part-heard cases, as far as possible, should be tried by the Judge before whom the trial had commenced and who was seized of the case.

12. It may be mentioned at this stage that this judgment should not be meant to lay down an absolute principle of law that the Sessions Judge does not enjoy any power whatsoever to recall a case from the file of an Additional Sessions Judge once the trial has commenced. There are cases and cases where the power to recall has to be exercised with respect to part-heard cases. In a given case, a trial before an Additional Sessions Judge might have commenced and the learned Additional Sessions Judge might have been transferred in the midst of the trial and no substitute is appointed in his place for some long duration. In such a situation, the trial cannot be kept in abeyance for an indefinite period more particularly when the accused is or are in custody. Similarly, after the commencement of the trial for certain valid reasons it may not be possible for the concerned Additional Sessions Judge to proceed further with such trial on account of diverse reasons. There might not be an Additional Sessions Judge in that Court. That trial also cannot be allowed to remain in abeyance till the concerned Additional Sessions Judge is either transferred or shifted from that place and a substitute is provided. In a given case, it might take years till such eventuality occurs. If it is a case where the accused is or are in custody, the trial has to be completed as expeditiously as possible. Except in cases of such emergent situations, it is not open to a Sessions Judge to withdraw a part-heard case from an Additional Sessions Judge under Section 409(2) of the Cr. P. C.

13. In the present case, the Additional Sessions Judge, named, Shri V.C. Mandalia was or is not under transfer. It is not the case of the learned Sessions Judge that he was divested of the powers to conduct cases under the Act. In that view of the matter, the learned Sessions Judge could not have withdrawn the sessions case in question from the file of the learned Additional Sessions Judge, named, Shri V.C. Mandalia.

In view of my aforesaid discussion, I am of the opinion that this petition deserves to be accepted. The trial proceeded before the learned Sessions Judge will have to be branded as without jurisdiction. The trial will have to be re-assigned to the learned Additional Sessions Judge, named, Shri V.C. Mandalia, form the stage where the proceedings stood adjourned on 10th December, 1992. The evidence recorded by the learned Sessions Judge after recalling the sessions case is ordered to be ignored in the case.

14. In the result, this petition is accepted. The action of the learned Sessions Judge of recalling Sessions Case No. 110 of 1991 from the file of the learned Additional Sessions Judge, named, Shri V.C. Mandalia, is hereby quashed and set aside. The learned Sessions Judge is directed to assign the trial of Sessions Case No. 110 of 1991 to the learned Additional Sessions Judge, named, Shri V.C. Mandalia. It is clarified that the learned Additional Sessions Judge shall proceed with the trial from the stage from which the case was recalled from his file. Rule is accordingly made absolute.