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SUPREME COURT OF INDIA
Dipak Misra, Prafulla C. Pant, JJ.
Usmangani Adambhai Vahora – Appellant
Versus
State of Gujarat & Anr. – Respondents
Criminal Appeal Nos. 1592-1593 of 2015 (@ S.L.P. (Criminal) Nos. 9374-9375 of 2015)
Decided on : 08-01-2016
(B) Criminal Procedure Code, 1973 – Section 408 – Transfer of case – Solely because an accused has filed an application for transfer, Trial Judge is not required to express his disinclination – He is required under law to do his duty – He has to perform his duty and not to succumb to pressure put by accused by making callous allegations – He is not expected to show unnecessary sensitivity to such allegations and recuse himself from case – If this can be foundation to transfer a case, it will bring anarchy in adjudicatory process – A Judge who discharges his duty is bound to commit errors and same have to be rectified. (Para 12)
AIR 1966 SC 1418; (2000) 6 SCC 204; (2009) 6 SCC 260; (2013) 8 SCC 593; (2011) 1 SCC 307; 1994 Supp. (1) SCC 540 – Relied.
Facts of Case:
Seminal issue that has emerged for consideration in these appeals is whether High Court in exercise of jurisdiction under Article 227 of the Constitution of India is justified in quashing order passed by Principal Sessions Judge, Kheda for the offences punishable under Sections 147, 148, 149, 364A, 120B, 447, 342 and 506(2) of Indian Penal Code and further directing Principal Sessions Judge to transfer Sessions Case to any other court of Additional Sessions Judge in same Sessions Division from court of 3rd Additional Sessions Judge, Kheda.
Findings of Court:
Sessions Judge, while hearing the application for transfer of the case, called for remarks of the learned trial judge, and in such a situation, he is required to give a reply and that he has done. He is not expected to accept the allegations made as regards his conduct and more so while nothing has been brought on record to substantiate the same. High Court could not have deduced that he should have declined to conduct trial. This kind of observation is absolute impermissible in law, for there is no acceptable reason on part of trial judge to show his disinclination.
We are unable to sustain order of transfer passed by High Court. Consequently, appeals are allowed in part. The finding recorded as regards the jurisdiction of the learned Sessions Judge is sustained, and as far as the direction to the Principal Sessions Judge to transfer the case from the 3rd Additional Sessions Judge to some other court being vulnerable and wholly unsustainable is set aside. Trial judge shall proceed with the trial and dispose of the same within six months.
Result – Appeals partly allowed.
Judgment
Dipak Misra, J.
The seminal issue that has emerged for consideration in these appeals is whether the High Court in exercise of jurisdiction under Article 227 of the Constitution of India is justified in quashing the order dated 14.08.2015 passed by the Principal Sessions Judge, Kheda at Nadiad in Criminal Miscellaneous Application No. 545 of 2015 arising from the Sessions Case No. 291 of 2003 instituted for the offences punishable under Sections 147, 148, 149, 364A, 120B, 447, 342 and 506(2) of the Indian Penal Code (IPC) and further directing the learned Principal Sessions Judge to transfer the Sessions Case to any other court of the learned Additional Sessions Judge in the same Sessions Division from the court of the 3rd Additional Sessions Judge, Kheda.
2. Be it stated at the beginning, the High Court has posed two questions – one of which pertains to exercise of power under sub-section (1) of Section 408 of the Code of Criminal Procedure, 1973 (CrPC) by the Sessions Judge to transfer a case from one Additional Sessions Judge to any other Additional Sessions Judge in his Sessions Division after commencement of the trial, and the other, whether the case deserves to be transferred. Answering the first issue, the High Court has opined that the transfer petition preferred under Section 408 CrPC before the learned Principal Sessions Judge is maintainable. The view expressed by the High Court on this score appears to be correct and hence, we affirm the same. The principal issue warranting delineation is the justification for allowing application for transfer from the court where the trial was pending to the court of another learned Additional Sessions Judge.
3. The facts which are essential to be stated are that the 2nd respondent faced trial for the offences mentioned hereinbefore in Sessions Case No. 291 of 2003. After examination of 18 prosecution witnesses, the informant preferred an application under Section 319 CrPC for arraigning one Natubhai Maganbhai Edanwala as an accused in the sessions case. The said application was rejected by the learned trial judge vide order dated 18.05.2006. Aggrieved by the aforesaid rejection, the informant preferred Special Criminal Application No. 1444 of 2006 before the High Court which vide order dated 02.12.2011 rejected the same. The said order was assailed before this Court in Special Leave Petition (Criminal) No. 17262 of 2012 which was dismissed on 11.01.2013 with the observation that it would be open to the informant to file an appropriate application under Section 319 CrPC, 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 in the alleged crime. As the factual matrix would exposit, the informant filed another application under Section 319 CrPC after the examination of the prosecution witnesses Nos. 19 to 23 and the application was allowed. The newly arraigned accused preferred Special Criminal Application No. 1731 of 2013 before the High Court challenging the said order, and the High Court had stayed the same.
4. As the factual score would undrape on 31.07.2015 when the sessions trial was fixed before the learned 3rd Additional Sessions Judge, Kheda at Nadiad, as alleged, the second respondent was standing in the parking area meant for the four wheelers and at that time he could overhear certain conversation between the informant and his son that the trial would be surely taken up for hearing from the next date onwards and all the accused persons would definitely be convicted. As further alleged, the Presiding Officer said something regarding the trial which the accused correlated with the conversation he had overheard between the informant and his son. Under such circumstances, he filed Criminal Miscellaneous Application No. 545 of 2015 under Section 408 CrPC before the Principal Sessions Judge, Kheda for transfer of the sessions case to any other court in the same Sessions Division. The learne
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