Purna Chandra Barooah, J. - (1.) This reference under section 395(2) of the Code of Criminal Procedure, 1973 (hereinafter the Code) has been made by Sri A.N. Saha, Additional District & Sessions Judge, 5th Court, Midnapore, recommending that an order, being Procedure Order no. 59 (Cr) dt. 23.6.79 passed by Sri A.K. Nandy, Sessions Judge, Midnapore transferring the Sessions Trial Case no. X of November, 1978 to the court of the the said learned Judge from the court of Sri R.N. Roy Addl. Sessions Judge, Midnapore be set aside.
(2.) The learned Sessions Judge purported to transfer the case to the file of Sri A.N. Saha under the provisions of section 408 of the Code. Under the said section of the Code, a Sessions Judge is empowered to transfer a case or an appeal from one criminal court to another criminal court in his Sessions Division if it is expedient in the interest of justice. The fetter on such power has been imposed by section 409 (2) of the Code which reads as follows "At any time before the trial of the case or the hearing of the appeal has commenced before the Addl. Sessions Judge, a Session Judge may recall any case or appeal which he has made over to any Addl. Sessions Judge".
(3.) In the instant case, Sri R.N. Roy had framed charges against the accused in the said trial on 5.2.79. Therefore, the trial had commenced before the said learned Judge. As such, under the provisions of section 409(2) of the Code, the order of transfer by the id. Sessions Judge is illegal and has to be set aside. In this connection, an unreported decision of a Division Bench of this Court in Criminal Reference No. 1 of 1978, which was disposed of on April 5, 1978 maybe referred to. The reference is thus accepted and the order dated 23.6.79 passed by the learned Sessions Judge, Midnapore is set aside. Maitra, J. - I agree.;