- (1.) 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.;