1997 Supreme(Raj) 1097
RAJASTHAN HIGH COURT
A.S.Godara, J.
Sohan Singh - Appellant
Versus
State of Rajasthan - Respondent
S.B. Cr. Transfer Petition No. 44/96 under Section 407, Criminal Procedure Code
Decided On : 10-04-1997
Advocates:
For the Petitioner:Mr. D.K. Parihar, Advocate.
For the Respondent: Mr. D.S. Rathore, P.P.
The High Court has the jurisdiction to transfer a case under Section 407 of the Criminal Procedure Code and Section 27 of the Rajasthan High Court Ordinance, even if the trial has commenced, if the transfer is in the interest of justice and to expedite the trial. A prior notice to the parties is not required in such cases, unless the petitioner can show that he was prejudiced by the transfer.
Headnote:
TRANSFER PETITION - SECTION 407, CRIMINAL PROCEDURE CODE - TRANSFER OF CASE - PART-HEARD CASE - SECTION 409(2), CRIMINAL PROCEDURE CODE - TRANSFER OF CASE AFTER COMMENCEMENT OF TRIAL - JURISDICTION OF HIGH COURT - SECTION 27, RAJASTHAN HIGH COURT ORDINANCE - NOTICE TO PARTIES BEFORE TRANSFER - PRINCIPLE OF NATURAL JUSTICE - PREJUDICE TO ACCUSED - FAIR AND JUST TRIAL - INTEREST OF JUSTICE - EXPEDITIOUS TRIAL.
Fact of the Case:
The petitioner, accused in a criminal case, challenged the transfer of his case from the Special Judge (E.C. Cases)-cum-Addl. Sessions Judge to another court. The petitioner argued that the transfer was contrary to Section 409(2) of the Criminal Procedure Code, as the trial had already commenced in the Special Judge's court. The petitioner also argued that he was not given a prior notice of the transfer, which violated the principle of natural justice.
Finding of the Court:
The court held that the transfer of the case was valid and did not violate Section 409(2) of the Criminal Procedure Code. The court noted that the Presiding Officer of the Special Judge's court had not conducted any proceedings in the case and that the trial had not commenced before him. The court also held that the petitioner was not prejudiced by the transfer, as the transferee court was equally competent to conduct a fair and just trial. The court further held that the High Court had the jurisdiction to transfer the case under Section 407 of the Criminal Procedure Code and Section 27 of the Rajasthan High Court Ordinance, and that a prior notice to the parties was not required in this case.
Issues: 1. Whether the transfer of the case from the Special Judge (E.C. Cases)-cum-Addl. Sessions Judge to another court was valid? 2. Whether the transfer violated Section 409(2) of the Criminal Procedure Code? 3. Whether the petitioner was prejudiced by the transfer? 4. Whether the High Court had the jurisdiction to transfer the case under Section 407 of the Criminal Procedure Code and Section 27 of the Rajasthan High Court Ordinance? 5. Whether a prior notice to the parties was required before the transfer?
Ratio Decidendi: 1. The court held that the transfer of the case was valid and did not violate Section 409(2) of the Criminal Procedure Code, as the Presiding Officer of the Special Judge's court had not conducted any proceedings in the case and the trial had not commenced before him. 2. The court held that the petitioner was not prejudiced by the transfer, as the transferee court was equally competent to conduct a fair and just trial. 3. The court held that the High Court had the jurisdiction to transfer the case under Section 407 of the Criminal Procedure Code and Section 27 of the Rajasthan High Court Ordinance, as the transfer was in the interest of justice and to expedite the trial. 4. The court held that a prior notice to the parties was not required in this case, as the transfer was made suo-motu by the High Court and the petitioner was not prejudiced by the transfer.
Final Decision: The court dismissed the petition and upheld the transfer of the case.
JUDGMENT
1. - This Transfer Petition under Section 407, Criminal Procedure Code has been moved by the petitioner in respect of Sessions Case No. 60/96 - Sohan Singh & Ors. v. State of Rajasthan , presently, pending trial in the Court of Special Judge, SC/ST (Prevention of Atrocities Cases)-cum-Addl. Sessions Judge, Jodhpur, after a similar transfer petition purporting to have been filed under Section 407, Criminal Procedure Code before the learned Sessions Judge, Jodhpur was dismissed vide order dated 17-6-1996.
2. Briefly stated the facts and circumstances giving rise to the present Jodhpur with immediate effect. As a petition of the petitioner is as follows :
3. The accused-petitioner along with five other co-accused persons, was challaned by the police of Police Station of Luni, after completion of investigation of F.I.R. No. 59/88 under Sections 395 and 384, Indian Penal Code registered on the report lodged by Gulam Mohd. in the Court of Munsif & Judicial Magistrate, First Class, Jodhpur District. The learned Magistrate in turn, committed the case to the Court of the learned Sessions Judge, Jodhpur. The learned Sessions Judge, in exercise of his power vested under Section 194 of the Code of Criminal Procedure, made over this case to the Court of Addl. Sessions Judge No. 2, Jodhpur whereat the same was registered on 13-6-1989 itself. This case remained pending in the same court till the same was ordered to be withdrawn from the same and further transferred to the court of Special Judge (trial of cases under the Essential Commodities Act), which was also vested with the power of Sessions Judge to be exercised within the territory of Jodhpur District by the Hon'ble High Court in exercise of its power under Section 9(3) and (6) of the Code of Criminal Procedure vide its order dated 28.1.1988.
4. The prosecution examined as many as 7 witnesses beginning from 22 -2-1995 to 11-7-1995 and, thereafter, no witness has been examined.
5. Meanwhile, the Government of Rajasthan (Transport Department) vide its notification No. F. 3(1) Transport/91 dated 20-3-1995, vested the power of a Motor Accident Claims Tribunal in exercise of its power under Section 165 of the Motor Vehicles Act, 1988, in the court of Special Judge (E.C. Cases), Jodhpur with immediate effect. As a result, since all the Criminal Cases including Sessions Cases, Criminal Appeals and Criminal Revisions which were pending trial, after the same were made over to the same by the Sessions Judge, Jodhpur, were required to be withdrawn and transferred to other court of concurrent jurisdiction and, therefore, the learned Sessions Judge vide letter No. 159 dated 12-1-1996 listing all such cases, requested through the Registry, Rajasthan High Court, Jodhpur to withdraw all such cases pending in the court of the said Special Judge-cum-Addl. Sessions Judge, Jodhpur to be transferred to some other court. Consequently, the High Court vide its order No. Gen./T.R.C./3/96 dated 2-8-1996 ordered all the Sessions Cases including the case in hand, along with Criminal Appeals, Criminal Misc. Cases and Criminal Revisions pending in the said court to be transferred again to the court of Sessions Judge so as to be further transferred to the court of competent jurisdiction for disposal according to law. The learned Sessions Judge vide his order dated 18-3-1996 ordered transfer of this case as well to the court of Special Judge, SC/ST (Prevention of Atrocities Act), Jodhpur also vested with the power of an Addl. Sessions Judge by the High Court in exercise of power under Section 9(3) and (6), Criminal Procedure Code, for trial according to law.
6. The case, accordingly, stood transferred to the last transferee court of Special Judge-cum-Addl. Sessions Judge, but without any further progress.
7. The petitioner being aggrieved, the Motor Vehicles Act, 1988, in the moved Transfer Petition, as above, be- fore the learned Sessions Judge mainly on the ground that since trial of the accused persons had alr
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