1993 Supreme(MP) 52

A.R. Tiwari, J.
State of M.P. v. Raja
Misc. Cr. Case No. 2451 of 1992 (I); Decided on 15.1.1993.

Headnote:(1) Criminal P.C., 1973 -- Ss. 409, 408 and 407 (2) proviso -- part heard Sessions trial -- Sessions Court has no jurisdiction to order transfer of case -- only High Court can so order.

        (2) Criminal P.C., 1973 -- S. 407 -- part heard Sessions trial -- presiding officer not present -- case transferred.

        (3) Constitution of India -- Art. 21 -- speedy trial -- is constitutional right of the accused.

        ¼1½ naM Áfdz;k lafgrk] 1973 & /kkjk 409] 408 rFkk 407 ¼2½ ijarqd & Hkkxr% lquk x;k ls’ku fopkj.k & ls’ku U;k;ky; dks ekeyk varfjr djus ds vkns‘k dh vf/kdkfjrk ugha gS & ,slk vkns‘k dsoy mPp U;k;ky; ns ldrk gSA

        ¼2½ naM Áfdz;k lafgrk] 1973 & /kkjk 407 & Hkkxr% lquk x;k ls’ku fopkj.k & ihBklhu vf/kdkjh mifLFkr ugah & ekeys dk varj.k fd;k x;kA

        ¼3½ Hkkjr dk lafo/kku & vuq- 21 & ‘kh?kz fopkj.k & vfHk;qDr dk lkafo/kkfud vf/kdkj gSA

        This is an application under section 407 of the Cr.P.C. seeking transfer of a part-heard Sessions Trial No. 162/91 (State v. Raja and another), pending in the Court of VIIth Additional Sessions Judge, Indore to any other Court of equal jurisdiction in the same Sessions Division, on the ground that the case has been hibernating there since 8.6.92 with no profluence in the matter due to the absence of Presiding Officer in that Court.

        Held : It seems that the Sessions Judge stood divested of the jurisdiction in view of section 409 Cr.P.C. as the trial had commenced. It is pointed out that the proviso as reproduced hereunder, of section 407 (2) of Cr.P.C. provided no fetters in view of the position envisaged by section 409 Cr.P.C.

        It is rightly argued that the power conferred under section 408 Cr.P.C. or the bar enacted by the proviso to section 407 (2) of the Cr.P.C. has to be understood and appreciated harmoniously with the provision of section 409 of the Cr.P.C. In view of this, I hold that the present application is maintainable here and is not clogged by the proviso pointed out above. It may also be observed that to my mind even otherwise appropriate order in such cases can be made in exercise of the inherent powers under section 482 of the Cr.P.C.

        Now coming to the merits of the matter, it is noticed that the accused persons are languishing in Jail and are being denied speedy trial as implicitly mandated by Article 21 of the Constitution of India. Section 309 of the Cr.P.C. itself luculently insists upon expeditious trial. It is apt to make a reference to Hussainaras case (AIR 1979 SC 1360) -- Hussainara Khatoon and others v. Home Secretary, State of Bihar, Patna).

        It is equally significant to note that even in the United States, speedy trial is one of constitutionally guaranteed rights. The Sixth Amendment to its Constitution mandated that-

        "In all Criminal Prosecutions, the accused shall enjoy the right to a speedy and public trial."

        The matter is beyond any pale of controversy, the prayer is holy, not hallow. What is explicit there is implicit here. The concept of speedy justice to the parties is thus, the basic requirement which deserves to be assiduously adhered to. The delay as noted above yields the procedure which cannot be termed as reasonable, fair or just. The vacancy thus posed the problem which merited proper solution. In these peculiar facts the prayer on merits of the case is found to be ex facie irrecusble and proper answer would salubriously seem to be Tant mieux. I must also act so as to save the criminal case from the situation as was indicated by the Apex Court in AIR 1988 SC 1208 (P.N. Duda v. P. Shiv Shanker and others) in the following words:--

        "Justice cries in silence for long, far too long".

        In these circumstances, the order of transfer, as claimed, seems necessary as it is cogently made to appear to me that it is expedient for the ends of justice. 1981 CrLJ 1352 and AIR 1979 SC 1360 relied on.