ORDER :

1. This petition under Section 407 of the Cr.P.C. has been preferred by the complainant/petitioner herein stating inter-alia that charge-sheet against the accused persons/respondents No. 2 to 4 herein was preferred before the Sessions Judge, Bemetara and the case was committed to the Court of Sessions by the Chief Judicial Magistrate, Bemetara on 28-6-2022 and thereafter, the Sessions Judge, Bemetara transferred the case to the Additional Sessions Judge, Bemetara on 8-7-2022, and thereafter charges were framed on 18-7-2022. However, thereafter, exercising power under Section 409(1) of the Cr.P.C. the learned Sessions Judge, withdrawn the case from the Court of 1st Additional Sessions Judge, Bemetara and proceeded to hear the matter. It has been stated that the same runs contrary to the provisions contained in sub-section (2) of Section 409 of the Cr.P.C. and therefore it is liable to be quashed.

2. Mr. Barun Kumar Chakrabarty, learned counsel appearing for the petitioner/ complainant, submits that the transfer order passed by the learned Sessions Judge on 10-8-2022 is contrary to and in teeth of the provisions contained in Section 409(2) of the Cr.P.C. therefore, it is liable to be set aside.

3. Mr. Goutam Khetrapal, learned counsel appearing for respondents No. 3 and 4, submits that the learned Sessions Judge under Section 409(1) of the Cr.P.C. has power to withdraw any case or appeal from any other court, or recall any case or appeal which he has made over to any Assistant Sessions Judge or Chief Judicial Magistrate subordinate to him, as such, the impugned order is in accordance with law.

4. I have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the material available on record with utmost circumspection.

5. It is admitted position on record that the accused persons have been charge-sheeted before the Chief Judicial Magistrate, Bemetara and the CJM by order dated 28-6-2022 committed the case to the Court of Sessions being triable by the Court of Sessions and the Sessions Judge by its order dated 8-7-2022 made it over to the 1st Additional Sessions Judge for hearing and disposal in accordance with law, thereafter, the said Court started hearing the case and ultimately, by order dated 8-7-2022, charges were framed against the accused persons and on 18-7-2022, trial programme has been submitted and case for fixed for evidence on 6-9-2022, 7-9-2022, 8-9-2022, in the meanwhile, on 10-8-2022, exercising power under Section 409(1) of the Cr.P.C. the learned Sessions Judge withdrawn the sessions case/sessions trial from the Court of the 1st Additional Sessions Judge, Bemetara and started hearing the case against which this petition under Section 407 of the Cr.P.C. has been preferred by the complainant.

6. In order to consider the plea, it would be appropriate to notice sub-sections (1) and (2) of Section 409 of the Cr.P.C. which states as under:

“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 Chef Judicial Magistrate subordinate to him.

(2) At any time before the trial of the case or the hearing of the appeal has commenced before the Additional Sessions Judge, as Sessions Judge may recall any case or appeal which he has made over to any Additional Sessions Judge.”

7. A careful perusal of sub-section (1) of Section 409 of the Cr.P.C. would show that the Sessions Judge has power to 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, but it is subject to rider or sub-section (2) of Section 409 provides that such power can be exercised by the learned Sessions Judge before trial of the case or hearing of the case has commenced before the Additional Sessions Judge and once the trial has commenced which i