(July 10, 2001) 2001 (TLS)125246

2001-DLT-94-526 :: 2001-AD (Del)-6-818

DIWAKAR Vs. State (National Capital Territory of Delhi)

ARIJIT PASAYAT

( 1 ) THIS application under Section 407 of the code of Criminal Procedure ( code for short) is for transfer of the case relating to FIR No. . 179/97, u/s 302/34 INDIAN PENAL CODE, presently pending trial before Shri d. C. Anand, Additional Sessions Judge, Karkardooma courts, Delhi, to the court of Shri Ajit Bharihoke, presently Presiding Judge, MACT, Karkardooma Courts, delhi. The main ground on which such a prayer has been made is that prosecution as well as defence evidence has been closed and statement of the accused has been recorded in terms of Section 313 of the Code and, therefore, trial is practically over. Since the evidence has been recorded by Shri Bharihoke, it is just and proper that finality to the trial should be given by him.

( 2 ) WHEN the matter was placed before the learned Single Judge, it was noticed that in another matter i. e. Crl. M. (M) No. 3174/2000, a reference has been made to a larger Bench, doubting the correctness of view expressed by another learned Single Judge in sushil Sharma v. State [crl. M. (M) No. 3202/2000] , accepting an identical prayer. Learned Single Judge hearing the present matter was of the view that scope and ambit of Section 326 of the Code was not kept in view while the matter was decided in Sushil Sharma s. Case (supra ).

( 3 ) WE had occasion to deal with a similar prayer in S. Muthukrishnan and Anr National Caoital Territory of Delhi and Ors. [cwp No. 389/2001] which was decided on 19/4/2001. It was, inter alia, observed that "there is no provision in any law which permits re-calling of a judicial officer to deliver judgment/order after he has been transferred. In fact, such a course would be against the legislative intent reflected in Section 326 of the code. It is not in dispute that the present incumbent is empowered to deal with the matter". It has to be noted that in several other cases, for example Chander prakash * Ors. v. state 1995 III AD (Delhi) 578. similar prayer was rejected on the ground that every presiding Officer is expected to act fairly and impart justice and that no prejudice would be caused to the accused, if the case is decided by the successor judge.

( 4 ) LEARNED counsel appearing for the petitioner, with reference to Section 407 (l) (c), prays that the evidence of the parties having already been recorded, transfer can he-directed in the interests of justice. Great emphasis is laid on the view expressed in Sushil Sharma s case (supra ).

( 5 ) IT is to be noted that National Capital territory of Delhi is divided into nine separate police and revenue districts. The cases pertaining to New delhi, South Delhi and south-west districts are dealt with and are tried in Patiala House Courts, New Delhi; cases pertaining to east districts are tried at karkardooma Courts, Delhi and cases pertaining to the remaining districts are tried and dealt with at Tis hazari Courts, Delhi. Infrastructure required for pursuing the cases is separately provided in the Court of Additional Sessions Judge. For all practical purpose even the filing and allocation etc. , of cases is done separately In each of the said courts. The sessions Judge sits at Tis Hazari. The Patiala House courts and Karkardooma Courts are headed by Additional sessions Judge-In-Charge. Shri Ajit Bharihoke is presently functioning as Presiding Judge, MACT, karkardooma, Delhi. In the aforesaid background, following observations of the Apex Court in Abdul. Nagar madani v. State of Tamil Nadu and Anr. (2000) 6 SCC 204 are relevant 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 Sec