- (1.) V. K. Chaturvedi, J. Pappu has filed this transfer application with the prayer to transfer the Sessions Trial No. 360 of 2006, State v. Pappu and Ors. , pending in the Court of 18th Sessions Judge, Agra to the Court of Sessions Judge, Agra or some other Court.
(2.) HEARD Sri R. N. Rai, Counsel for the applicant, Sri Sudhir Mehrotra, A. G. A. It is contended by the Counsel for the applicant that once the charge is framed by the trial Court, the Sessions Judge has no power to transfer that sessions trial to some other Court because that is a part heard matter with that Court who framed the charge. In support of his contention he has relied upon the judgment of (1) Ratilal Bhanji Mithani v. State of Maharashtra and Ors. , reported in AIR 1979 SC 94; (2) State of West Bengal v. Gangadhar Dawan and Ors. , reported in 1989 Cri. L. J. 563; (3) Punjab Singh and Ors. v. State of Uttar Pradesh, reported in 1983 AWC 55 (DB ). A. G. A. contended that the Sessions Judge has power under Section 408, Cr. P. C. to transfer a part heard session trial or appeal to the Court of any Additional Sessions Judge. In support of his contention he has relied upon a judgment of Radhey Shyam and Anr. v. State of U. P. , reported in 1984 ALJ 666 (Full Bench ).
(3.) THE sole controversy involved in this case is whether the Sessions Judge has no power to transfer the case if the charges are framed against the accused persons because that is a part heard matter of that presiding officer. The brief facts of the case are that a F. I. R. was lodged against the applicant and other accused persons in respect of an incident dated 18-1-2006 under Sections 147, 148, 149, 302, 307, 452, 427, 323, 504, 506 IPC at crime No. 29 of 2006 at police station Achnera District Agra. The Investigating Officer, after completing the investigation, submitted charge-sheet under Section 173 (2), Cr. P. C. and the case was committed to the Court of Sessions. The case was numbered as S. T. No. 360 of 2006, State of U. P. and others. The Sessions Judge framed the charges against the applicant and other accused person by his order dated 27th May, 2006 under Section 148, 323 read with Sections 149, 307 read with Section 149, 302 read with Sections 149 and 452 IPC. After framing the charges he fixed 12-6-2006, 13-6-2006 and 14-6-2006 for recording the prosecution evidence. On 9-6-2006 above session trial was transferred by the Sessions Judge to the Court of 18th Additional Sessions Judge, Agra and subsequently the case was taken up by the Additional Sessions Judge, Agra and he started to record the statement of prosecution witnesses. The petitioner filed a transfer application before the Sessions Judge, Agra with the prayer to transfer the session trial from the 18th Additional Sessions Judge to some other Additional Sessions Judge, having competent jurisdiction on the ground that the defence Counsel was not allowed to cross- examine the informant-prosecution witness No. 2. The Sessions Judge called the comments from the presiding officer and after perusing the comments and the order sheet, rejected the transfer application vide his order dated 20- 7-2006, copy of which is Annexure-5 to the affidavit. The 18th Additional Sessions Judge, while sending his comment has mentioned that the above session trial was received in his Court on 12-6-2006 and the doctor was examined as P. W. 1. On 19-6-2006 the examination-in-chief of P. W. 2 Mahavir Singh was recorded and on the adjournment application of the accused persons, case was adjourned on cost to 20-6-2006 for cross-examination with a direction to the defence lawyer that they will cross-examine the witnesses at 7. 00 a. m. When the case was called out on 20-6-2006 at about 7. 00 a. m. , no Counsel was present. Again the case was called out at 7. 20 a. m. , 8. 00 a. m. , 8. 20 a. m. but no lawyer was present to cross-examine the witnesses. The trial Court closed the cross-examination of P. W. 2.;