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Raj Kali Devi v. The State Of Bihar & Ors.

Patna High Court

Jul 26, 2002

Judgment

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Structured Summary of the Opinion

Factual and Procedural Background

The petitioner/informant (wife of the deceased) filed the present revision application challenging the Sessions Judge's order dated 22.1.2002 in Cr. Misc. No. 3/2002, which transferred a pending criminal trial from the court of the 3rd Additional Sessions Judge to the court of the 1st Additional Sessions Judge, Sitamarhi. The trial had been proceeding in the court of the 3rd Additional Sessions Judge. Sri S.B. Singh had earlier been officiating as the 3rd Additional Sessions Judge and had examined a number of witnesses while so officiating. He subsequently was appointed as the 1st Additional Sessions Judge. Sri Rajesh Kumar took charge as the 3rd Additional Sessions Judge on 20.4.2001. From 20.4.2001 until the impugned order on 22.1.2002 no witness was examined by Sri Rajesh Kumar. About ten months after the new incumbent took charge, the accused moved the Sessions Judge seeking transfer of the case to the court of the 1st Additional Sessions Judge. The Sessions Judge, apparently after obtaining the comments of the 3rd Additional Sessions Judge (who stated he had no objection), passed the transfer order on 22.1.2002 without calling or hearing the counsel for the State, according to the record and as asserted by the petitioner.

Legal Issues Presented

Whether the Sessions Judge validly exercised powers under Section 409(2) of the Code of Criminal Procedure to transfer a case from one Additional Sessions Judge to another after the trial had commenced in the court to which the case had been made over.
Whether the transfer was permissible where the purported grounds were that an officer (Sri S.B. Singh) who had earlier, while officiating as 3rd Additional Sessions Judge, recorded evidence and later became the 1st Additional Sessions Judge, and whether that fact alone justified transfer of the case to the judge who later occupied a different numbered court.
Whether the Sessions Judge's order of transfer was procedurally sound when the Public Prosecutor (State) was not called or heard before the order was passed and the prosecution still had the right to lead further evidence.

Arguments of the Parties

Petitioner's Arguments

The transfer dated 22.1.2002 is bad and illegal because Section 409(2) Cr.P.C. bars recalling/withdrawing a case after the trial has commenced before an Additional Sessions Judge.
The trial was undisputedly going on in the court of the 3rd Additional Sessions Judge when the transfer order was made.
The accused delayed about ten months before seeking transfer after the new incumbent had taken charge; the timing and circumstances of the transfer indicate impropriety.

Non-Applicants' (Accused/Respondent) Arguments

The trial had been conducted by Sri S.B. Singh while he was officiating as 3rd Additional Sessions Judge; as the person who had recorded evidence he should hear and decide the charges even after becoming 1st Additional Sessions Judge.
From 20.4.2001 to 22.1.2002 no witness had been examined by the new incumbent (Sri Rajesh Kumar), so transfer to Sri S.B. Singh (1st Addl. Sessions Judge) was justified.
Reference was made to proceedings before this Court (proceedings dated 7.3.2002) asserting that wrong statements had been made to obtain orders, and the non-applicants contended that the revision should be dismissed.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The Court's analysis focuses on the text and timing of Section 409(2) Cr.P.C. and on the factual matrix regarding who constituted the "court" before which the trial had commenced. The reasoning proceeds in discrete steps, as follows:

The Court sets out Section 409 Cr.P.C. (all sub-sections quoted in the opinion) and explains that sub-section (2) allows a Sessions Judge to recall a case made over to an Additional Sessions Judge only "at any time before the trial of the case ... has commenced before the Additional Sessions Judge."
The Court addresses the grammatical singular "Additional Sessions Judge" and notes that, by reference to the General Clauses Act (as relied upon in the opinion), the singular can include the plural where appropriate; thus the Sessions Judge may withdraw from one Additional Sessions Judge to his own court or to another Additional Sessions Judge where there are multiple such judges.
The Court emphasizes the distinction between a judge as an individual and the court as an institutional entity: the trial was pending before the court of the 3rd Additional Sessions Judge (the office/seat), not merely before the person Sri S.B. Singh in his later capacity as 1st Additional Sessions Judge. Once Sri S.B. Singh ceased to be the 3rd Additional Sessions Judge, he no longer had seisin of the matter in that capacity.
The Court finds as a fact from the record that while Sri S.B. Singh, when officiating as 3rd Additional Sessions Judge, had examined several witnesses, after Sri Rajesh Kumar took charge as the 3rd Additional Sessions Judge no witness was examined until the impugned order; nevertheless, the prosecution's right to lead further evidence had not been exhausted — exemplified by an application of the Public Prosecutor on 10.1.2002 to recall the Investigating Officer and related proceedings up to 23.1.2002 when the Public Prosecutor closed the prosecution case after the recall application was refused.
Applying Section 409(2) to these facts, the Court holds that once the trial has commenced before an Additional Sessions Judge (i.e., the court of the 3rd Additional Sessions Judge), the Sessions Judge no longer has jurisdiction under sub-section (2) to recall and transfer the case to another Additional Sessions Judge or to his own court; the power must be exercised before the trial commences before the Additional Sessions Judge.
The Court rejects the argument that because Sri S.B. Singh previously recorded evidence while officiating as 3rd Additional Sessions Judge, the case could be transferred to him after he became 1st Additional Sessions Judge. Treating a judge-person as equivalent to the court for purposes of transfer would create unacceptable consequences; the proper legal focus is the court/seat (3rd Addl. Sessions Judge) before which the trial was pending.
Procedural impropriety is also found: the Sessions Judge appears to have allowed the transfer solely on the accused's application and on a "no objection" note from the (then) 3rd Additional Sessions Judge, without calling or hearing the Public Prosecutor. The Court states that a mere no-objection by the other judge is insufficient; a judge's request for transfer is valid only for reasons personal to him (such as inability to hear and decide the matter) or akin to such reasons.
The Court further notes the inordinate delay by the accused in seeking transfer (about ten months) despite the transferred judge's availability within the same Sessions division, and expresses concern about attempts by accused to secure hearing by a particular judge by tactical transfer applications.
On these grounds — substantive (trial had commenced before the 3rd Additional Sessions Judge and prosecution could still lead evidence) and procedural (failure to hear the Public Prosecutor; transfer based merely on no-objection and on accused's preference) — the Court concludes the exercise of jurisdiction by the Sessions Judge in passing the order dated 22.1.2002 was impermissible and must be set aside.

Holding and Implications

The order dated 22.1.2002 transferring the case from the court of the 3rd Additional Sessions Judge to the court of the 1st Additional Sessions Judge is quashed.

Direct consequences and procedural directions issued by the Court:

The Sessions Judge is directed to immediately instruct the 1st Additional Sessions Judge to produce the trial records so that the records can be retransmitted to the court of the 3rd Additional Sessions Judge.
The petitioner (applicant) may make an application to the Sessions Judge informing him about this Court's order.

The opinion does not purport to lay down a novel legal precedent beyond the direct ruling on the impugned transfer order; the decision's practical effect is to restore the case to the court in which the trial had commenced and to rebuke transfers made after trial commencement or without hearing the prosecution.

Show all summary ...

1. Heard learned counsel for the parties.

2. By this revision application the petitioner/informant, wife of the deceased is asking this Court to revise the order dated 22.1.2002 passed in Cr. Misc. No. 3/2002 passed by the learned Sessions Judge, Sitamarhi transferring the case from the court of 3rd Additional Sessions Judge to the court of 1st Additional Sessions Judge. The facts necessary for disposal of the present revision application are that a trial was pending in the court of 3rd Addl. Sessions Judge, Sitamarhi. After some time the said 3rd Addl. Sessions Judge was transferred but Sri S.B Singh, 1st Addl. Sessions Judge started officiating as 3rd Addl. Sessions Judge. He officiated as such upto 19th March, 2001. On 20th April, 2001, Sri Rajesh Kumar took charge of the said court as 3rd Addl. Sessions Judge and the officiating 3rd Addl. Sessions Judge, namely, Sri S.B Singh was appointed a full fledged 1st Addl. Sessions Judge. While acting as an officiating 3rd Addl. Sessions Judge Sri S.B Singh had examined number of the witnesses but after 20th April, 2001 till 22nd January, 2002 (when the impugned order was passed), no witness was examined by the new incumbent Sri Rajesh Kumar. It appears that the accused persons filed an application before the Sessions Judge, inter alia, submitting that the case be transferred from the court of 3rd Addl. Sessions Judge to the court of 1st Addl. Sessions Judge. The comments of Sri Rajesh Kumar, 3rd Addl. Sessions Judge were called for and he submitted to the Sessions Judge that he would have no objection if the trial is transferred from his court. From the order dated 22.1.2002 it appears that after receiving the comments/report from 3rd Addl. Sessions Judge but without hearing the counsel for the State or anybody else the prayer made by the accused was allowed. The order dated 22.1.2002 does not say that the counsel for the State was called or he was heard. The petitioner says that transfer of the case from 3rd Addl. Sessions Judge to the court of 1st Addl. Sessions Judge is bad and illegal because of the bar contained under Section 409(2) of the Code of Criminal Procedure. He also submits that undisputedly there can be no controversion of the fact that the trial was going on in the court of 3rd Addl. Sessions Judge. He submits that after the new incumbent has taken charge, immediately thereafter no application for transfer was filed but the application was filed almost after about 10 months and the circumstances in which the case has been transferred would speak for itself.

3. Learned counsel for the non-applicants on the other hand submits that the trial was conducted by Sri S.B Singh as officiating 3rd Addl. Sessions Judge and as the person, who had recorded the evidence, is required to hear and decide the charges in his capacity as the 1st Addl. Sessions Judge, no wrong can be found with the order. He submits that right from 20.4.2001, when Sri S.B Singh became the 1st Addl. Sessions Judge, upto 22.1.2002 not even a single witness was examined, therefore, the transfer of the case from the court of 3rd Addl. Sessions Judge to the court of 1st Addl. Sessions Judge was justified. Referring to the proceedings dated 7.3.2002 recorded by this Court it was contended that a fraud was played upon the Court by making wrong statements in obtaining the said orders. He submits that the revision application deserves to be dismissed.

4. For the purpose of this revision application, a reference to Section 409 of the Code of Criminal Procedure is a must. It reads as under:—

“409. Withdrawal of cases and appeals by Sessions Judge.—(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 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.”

5. Sub-section (2) of Section 409 Cr. P.C says that at any time before the trial of the case or the hearing of the appeal has commenced before the Additional Sessions Judge, the Sessions Judge may recall any case or appeal which he has made over to any Additional Sessions Judge. The words “Additional Sessions Judge” though have been used in singular but with the help and assistance of General Clauses Act would be including plurality in it. If there is only one Additional Sessions Judge then the Sessions Judge may call the case from his court and may decide it himself but if there are more than one Additional Sessions Judge then the Sessions Judge would have powers to withdraw the case from one Additional Sessions Judge to his own Court or withdraw and transfer to other court.

6. In the hierarchy of the system the Sessions Judge may withdraw the case but when there are more than one Additional Sessions Judge then the Additional Sessions Judge is known by the court which he occupies and the number which he bears. I am saying this in details because the question of the numbers would assume importance in the present matter. Undisputedly no trial was conducted by the 1st Addl. Sessions Judge Sri S.B Singh. The trial was conducted in the court of the 3rd Additional Sessions Judge Sri S.B Singh. In this judicial system no Judge has a right to retain any particular case in his court. So long as Sri S.B Singh was officiating or holding the office of the 3rd Addl. Sessions Judge, he was entitled to conduct the trial as 3rd Addl. Sessions Judge. After his transfer from that court he would have no right nor would have the seisin of the matter because he is no more the 3rd Addl. Sessions Judge. In the present matter Sri Rajesh Kumar came and joined as 3rd Addl. Sessions Judge. The trial was not being conducted before Sri S.B Singh. It was being conducted before the 3rd. Addl. Sessions Judge. When the 3rd Addl. Sessions Judge was conducting the trial and thereafter the 3rd Addl. Sessions Judge came then it was the right of the 3rd Addl. Sessions Judge to proceed further with the trial. Simply because somebody officiating as 3rd Addl. Sessions Judge recorded certain statements and thereafter he became 1st Addl. Sessions Judge, the case could not be transferred from the court of 3rd Addl. Sessions Judge to the court of 1st Addl. Sessions Judge.

7. It is also necessary to note that for a period of more than 10 months the accused persons knowing well that Sri S.B Singh is available in the same Sessions division did not make an application for transfer of the case from the court of 3rd Addl. Sessions Judge to the court of 1st Addl. Sessions Judge. Few days before 22.1.2002 they made an application to the court of the Sessions Judge.

8. On 10.1.2002 the 3rd Addl. Sessions Judge was to hear some arguments but the case was adjourned to 23.1.2002 It appears that in the meanwhile the application for transfer was filed. The learned Sessions Judge requisitioned the records under his Memo dated 18.1.2002 The records were sent to the Sessions Judge immediately on the same day. On 22.1.2002 the order for-transfer of the case was passed.

9. From the records it would further appear that an application was filed by the learned Public Prosecutor on 10.1.2002 for recalling of the Investigating Officer. A reply was filed and the arguments were to be heard on 23.1.2002 From this it would clearly appear that upto 23.1.2002 the prosecution evidence was not closed. From the proceedings dated 23.1.2002 it would clearly appear that the learned Public Prosecutor pressed the petition to recall the Investigating Officer. The application was opposed and was rejected. In view of the said rejection the Public Prosecutor closed the case of the prosecution.

10. From the above narration it would clearly appear that on or before 23.1.2002 the prosecution had a right to lead further evidence.

11. Section 409 sub-section (2) of the Code of Criminal Procedure provides that at any time before the trial of the case or the hearing of the appeal has commenced ………. to any Additional Sessions Judge. The right, power and jurisdiction vested in a Sessions Judge can be exercised by him before the trial of the case or the hearing of the appeal has commenced. Once the trial commences the Sessions Judge would have no right or jurisdiction much less the authority to transfer the case from the court of one Addl. Sessions Judge to the court of another Addl. Sessions Judge or to his own court. In the present case the trial was conducted in the court of 3rd Addl. Sessions Judge. It would be too much to personify a Judge as a Court. It cannot be argued that trial was conducted before Sri S.B Singh, therefore it could be finally decided by him. If that argument is accepted, it would lead to judicial anarchism. A court, whoever may be the Presiding Officer, is to be treated as a court of the Addl. Sessions Judge for the purposes of Section 409 Cr. P.C

12. The only argument on which the case was transferred was that number of the witnesses were examined by Sri S.B Singh, therefore, the case be transferred to his court, in the opinion of this Court, neither such a request was permissible under the law nor on foundation of such request, the transfer of the case could be allowed. A transfer of the case can be made if the necessary foundation is available. It is not that a transfer is made just for the sake of asking or to satisfy the whims of a particular party. In the present matter the transfer of the-case speaks bad specially when the accused persons are running from pillar to post for getting their case decided by a particular Judge only. If that is the approach of the accused persons it would not be desirable that the case should be heard by a particular Judge of the choice of the accused persons. These observations are not meant to lower down the reputation of the learned 1st Addl. Sessions Judge Sri S.B Singh but are necessitated in view of the conduct of the accused persons.

13. If a case cannot be transferred because the trial has commenced then exercise of the said jurisdiction by the Sessions Judge would be bad. It appears from the proceedings dated 22.1.2002 that the learned Sessions Judge treated the transfer application to be a private affair between the accused at one side and the court on the other. From the proceedings dated 22.1.2002 it does not appear that the Public Prosecutor was called and heard but simply appears that the comments of the 3rd Addl. Sessions Judge were called for who simply wrote to the Sessions Judge that he would have no objection in transfer of the case. It is trite law that even if a Judge says that a case may be transferred, in view of the transfer application, the case cannot be transferred. A case can be transferred on the request of a Judge only if for reasons personal to him, he cannot hear and decide and he has some interest in it or finds some difficulty or a reason akin to it. Simply on an application the case cannot be transferred on a no objection from another court. The manner in which the case has been transferred from the court of the 3rd Addl. Sessions Judge to the court of the 1st Addl. Sessions Judge cannot be approved by this Court.

14. The order dated 22.1.2002 is quashed. The Sessions Judge is hereby directed to issue immediate direction to the 1st Addl. Sessions Judge to produce the records of the trial before him so that the records are transmitted to the court of 3rd Addl. Sessions Judge. The present applicant may make an application to the Sessions Judge informing about the order of this Court.