S.S.NIJJAR, J. - (1.) THIS is an application under Section 407 Cr.P.C. seeking transfer of the case pending against the petitioner in the Court of Additional Sessions Judge (Special Judge) Shri A.S. Katari to any other court of competent jurisdiction in the State of Punjab/Chandigarh.
(2.) THE petitioner was put on trial for having committed the offences under the NDPS Act, 1985. During the trial, the advocate of the petitioner had expired. The new counsel had made an application under Section 311 of the Code of Criminal Procedure for recalling three witnesses for the purpose of further cross-examination. The application was dismissed by the trial Court and the petitioner was convicted. The appeal filed by the petitioner against the conviction and sentence was dismissed by this court. The conviction and sentence were confirmed. Consequently, the petitioner filed Criminal Appeal No. 815 of 1998 in the Supreme Court, which was allowed by order dated 16.9.1999. The conviction and sentence were set aside and the matter was remanded to the trial Court for re-trial. The Supreme Court while allowing the appeal noticed the ground urged by the new counsel for recalling the witnesses as follows :- "His case was conducted by Mr. Kailash Sammuel, Advocate who had died during the pendency of the trial and that it has now transpired that Kailash Sammuel, Advocate was not keeping well and was under some mental pressure and he could not concentrate during the proceedings and as such, he failed to cross- examine the prosecution witnesses on material points." The Supreme Court, whilst considering the ground, inter alia observed as follows :- "When the new counsel took up the matter he would certainly be under the disadvantage that he could not ascertain from the erstwhile counsel as to the scheme of the defence strategy which the predeceased advocate had in mind or as to why he had not put further questions on certain aspects. In such circumstances, if the new counsel thought to have the material witnesses further examined the court could adopt latitude and a liberal view in the interest of justice, particularly when the court has unbridled powers in the matter as enshrined in section 311 of the Code. After all the trial is basically for the prisoners and courts would afford the opportunity to them in the fairest manner possible."
(3.) THEREAFTER , the Supreme Court gave the following directions :- "1. The Court shall summon PW-1, PW-2 and PW-3 to be cross-examined again on behalf of the accused. 2. The evidence already brought on record will remain as part of the evidence in the case. After the defence counsel availing himself of the opportunity to further examine the three witnesses, if prosecution wants to adduce further evidence, it is open to the court to grant permission for the same. Accused shall then be called upon to enter on his defence. 3. After collecting such evidence, if any adduced by the accused, the trial Judge shall dispose of the case afresh in accordance with law and untrammelled by any findings or observations made in the judgment of the trial Court or that of the High Court. We make it clear that the accused shall remain in custody till the disposal of the case. It is needless to say that the trial Judge shall recall the witnesses at the earliest, so that, this old case must be disposed of as expeditiously as possible and on a priority basis." ;