GOPI NATH - (1.) THIS is an application for transfer of Sessions Trial No. 214 of 1979, State v. Nizam, pending before Sri B. K. Sarkar, IV Additional Sessions Judge, Allahabad, to the court of Sri K. L. Sharma, II Additional Sessions Judge.
(2.) OPPOSITE party No. 1, Nizam is being prosecuted for an offence under Section 302 IPC. The trial started in the court of Sri K. L. Sharma. He recorded the evidence of the prosecution witnesses ami watched their demeanour as well. Sri Sharma, during the trial of the case, was designated as IV Additional Sessions Judge, Allahabad. He had fixed this case for further hearing on 21-2-1980. In view of certain transfer orders from this Court, Sri Sharma became II Additional Sessions Judge, and Sri B. K. Sarkar became: IV Additional Sessions Judge. Since the case was pending in the court of IV Additional Sessions Judge, the file remained there. When Sri Sarkar took over as IV Additional Sessions Judge, he took up the case on 21-2-1980, which was the date fixed and examined one witness on the defence side. The case was fixed for arguments on 27-2-1980. The applicant had moved the Sessions Judge, Allahabad for the transfer of the case to the court of Sri Sharma, who was now designated as II Additional Sessions Judge. That application was rejected by the learned Sessions Judge by an order dated 19-2-1986. The applicant then moved this Court by th? instant petition for the transfer of the case to the court of Sri K. L. Sharma, II Additional Sessions Judge, Allahabad on the ground that the case was part heard with him. It may be observed that the case was allotted to Sri K. L. Sharma by an order of the Sessions Judge dated 7-9-1979 by name. The order reads as follows :- "Transfer to the court of Sri K. L. Sharma, Additional Sessions Judge." Sri Sharma had framed the charges and had also examined the prosecution witnesses. The case was thus part-heard with him and he had the jurisdiction over it as a court of session. He was competent to proceed with it until he ceased to exercise jurisdiction over it as court of Sessions-see Sec. 326, CrPC. Under section 409, CrPC a Sessions Judge may not withdraw or recall any case or appeal pending before a Judge which is part-heard with him-see Karam Chand v. State of U. P., 1980 AWC 505 = 1980 A.Cr.R. 346 ; and the answer returned on a reference in Cr. Misc. Case No. 747 of 1971, State of U. P. y. Gyan Chand and Cr. Misc. Case No. 3318 of 1972, State v. Gyan Chand by Division Bench by order dated 17-9-1974. One of the questions referred was : "Whether sub-section (1-C) of section 528, CrPC confers a power on a Sessions Judge to transfer a Sessions Trial from the file of one Sessions Judge to another Sessions Judge in the same Sessions Division even after hearing has commenced therein before the Sessions Judge on whose file the case be pending." Section 528 of the old CrPC corresponds to sections 408 to 412 of the new Code. The Bench answered the question as follows:- "Sub-section (1-C) of section 528 CrPC does not confer power on the Sessions Judge to transfer a sessions trial from the file of one Additional Sessions Judge! to another Additional or Assistant Sessions Judge in the same sessions division once the trial has commenced before "the Additional Sessions Judge. However, if the case is pending before the Assistant Sessions Judge, the Sessions Judge has the power to entertain an application for the transfer of the sessions trial and to transfer it to another Additional or Assistant Sessions Judge, even though the trial has already commenced." The intention behind the Code seems to be that part-heard cases, as far as possible, should be tr|ed by the Judge before whom the trial had commenced and who was seized of the case. Sessions) Trial No. 214 of 1979 was part-heard with Sri K. L. Sharma. Sri Sharma had framed the charge and examined the prosecution witnesses. The case could not be transferred by the Sessions Judge to the file of Sri Sarkar. It was suggested by learned counsel for the opposite party that there was DO order of transfer by the Sessions Judge but since the file was retained in the court of IV Additional Sessions Judge, the case was proceeded with by Sri Sarkar It was further suggested that the applicant could not choose a court of her choice, and if there was no legal bar to the trial being proceeded with by Sri Sarkar, the case may not be transferred to the court of Sri Sharma. I have already observed that Sri Sharma had dealt with the case at some length. It, therefore, appears mote appropriate that he should continue with the trial.
(3.) THE petition accordingly succeeds, and is allowed. Sessions Trial No. 214 of 1979, State v. Nizam, is directed to be transferred to the court of Sri K. L. Sharma, II Additional Sessions Judge, Allahabad, for further trial. This order shall, however, not precludge the parties from moving for transfer of the case from that court if any ground under section 407, CrPC is made out. Petition allowed.;