Man Mohan Singh Gujral, J. - (1.) THIS revision petition is directed against the order of the Sessions Judge dated 14th August 1970 whereby he withdrew the case pending against the Petitioners in the Court of Shri P.R. Aggarwal, Additional Sessions Judge, Gurgaon, to his own file.
(2.) THE facts necessary to decide this application are that the five Petitioners were being tried in a case under Section 302/149 etc., of the Indian Penal Code in the Court of Shri Aggarwal, Additional Sessions Judge, Gurgaon, and in this case the entire evidence had been recorded and the case had been fixed for arguments on 29th July, 1970. While arguments were being addressed the complainant made an application praying for adjournment on the ground that he wanted to move the High Court for transfer of the case. On this application the proceedings were adjourned to 13th August, 1970 After adjourning the case Shri Aggarwal wrote a confidential letter to the Sessions Judge requesting that this case be transferred from his Court. On receiving this letter the counsel for the parties were sent for by the learned Sessions Judge and were informed about this request for transfer. The counsel for the accused then made an application opposing the transfer. Subsequently Nur Mohammed complainant made an application seeking the transfer of the case and made various allegations in the petition to show that the learned Additional Sessions Judges was prejudiced against the complainant. On this application the learned Sessions Judge passed the impugned order withdrawing the case from the Court of the Additional Sessions Judge to his own file. Being aggrieved the accused have come up in revision to this Court. It was firstly contended on behalf of the Petitioners that the Sessions Judge had no jurisdiction to transfer the case after the evidence had been recorded and when only arguments had to be addressed.
(3.) IN order to appreciate the arguments of the learned Counsel for the Petitioners reference will have to be made to Sub -sections (1) and (1A) of Section 526 and Sub -sections (1A) and (1C) of Section 528 of the Code of Criminal Procedure. The relevant provisions are as under: 526. (1) Whenever, it is made to the High Court - - (a) that a fair and impartial enquiry or trial cannot be had in any Criminal Court subordinate thereto, or (b) that some question of law of unusual difficulty is likely to arise, or (c) that a view of the place in or near which any offence has been committed may be required for the satisfactory inquiry into or trial of the same, or (d) that an order under this section will tend to the general convenience of the parties or witnesses, or (e) that such an order is expedient for the ends of justice, or is required by any provision of this Code, it may order - - (i) that any offence be inquired into or tried by any Court not empowered under Sections 177 to 184 (both inclusive), but in other respects competent to inquire into or try such offence; (ii) that any particular case or appeal, or class of cases or appeals, be transferred from a Criminal Court subordinate to its authority to any other such Criminal Court of equal or superior jurisdiction; (iii) that any particular case or appeal be transferred to and tried before itself; or (iv) that an accused person be committed for trial to itself or to a Court of Session. (1A) Notwithstanding anything contained in Sub -section (1), no application shall lie to the High Court for the exercise of its powers under the said sub -section for transferring any case from one Criminal Court to another Criminal Court in the same sessions division, unless an application for such transfer has been made to the Sessions Judge and rejected by him. 528. (1A) At any time before the trial of the case or the hearing of the appeal has commenced before the Additional Sessions Judge, any Sessions Judge may recall any case or appeal which he has made over to any Additional Sessions Judge. (1C) Any Sessions Judge, on an application made to him in this behalf, may, if he is of opinion that it is expedient for the ends of justice, order that any particular case be transferred from one Criminal Court to another Criminal Court in the same sessions division. The argument advanced by Shri Har Parshad Advocate on behalf of the Petitioners is that the powers of the Sessions Judge to withdraw a case from the Court of the Additional Sessions Judge are governed by Sub -section (1A) and not Sub -section (1C) of Section 528 of the Code of Criminal Procedure. Two grounds have been urged in support of this argument, namely, that Sub -section (1A), being a specific provision relating to withdrawal of cases from the Court of the Additional Sessions Judge by the Sessions Judge, would apply in preference to the general provisions contained in Sub -section (1C) in respect of the powers of the Sessions Judge to transfer cases from one criminal Court to another criminal Court in the same sessions division and that Sessions Court being one criminal Court the transfer of a case from the Additional Sessions Judge to Sessions Judge would not amount to transfer of a case from one criminal Court to another criminal Court. For second part of the argument support was sought from a Full Bench decision in Kamleshwar Singh v. Dharamdeo Singh, A.I.R. 1957 Pat 375, wherein it was observed that a Court presided over by an Additional or Assistant Sessions Judge is also a Court of Session. Reference was also made to Superintendent and Remembrancer of Legal Affairs, Bengal v. Ujjatulla Paikar : A.I.R. 1931 Cal. 190, in which it was observed that there is only one Court of Session in each sessions division sitting at different places and manned by a number of Judges. In view of these observations, it was contended that the Court of Session being one Court even though it was manned by different Judges a Sessions Judge could not transfer a case from the Court of Additional or Assistant Sessions Judge to his own Court or to the Court of another Additional, or Assistant Sessions Judge except in the circumstances mentioned in Sub -section (1A) of Section 528. The transfer of a case from the Court of an Additional or Assistant Sessions Judge to that of Sessions Judge or another Additional or Assistant Sessions Judge, the counsel states, is not transfer from one criminal Court to another criminal Court within the meaning of Section (1C) of Section 528. The above arguments, though they appear attractive, are without much merit. Sub -sections (1A) and (1C) of Section 528 of the Code of Criminal Procedure deal with different situations as their requirements are different. Under Sub -section (1A) of Section 528 the Sessions Judge may recall any case or appeal even without there being any application by any party and without it being expedient in the ends of justice to withdraw the case. In other words, purely administrative reasons can be pressed into service by the Sessions Judge for withdrawing a case under Sub -section (1A) of Section 528 provided in the case pending before the Additional Sessions Judge the trial has not commenced. On the other hand, under Sub -section (1C) of Section 528 a Sessions Judge can only act on an application made to him in this behalf and not otherwise. For this view I find support from R.K. Nabachandra Singh v. Manipur Administration, A.I.R. 1964 Manipur 39, wherein it was held that a Sessions Judge cannot transfer a case suo motu under Section 528(1C). More -over, under Sub -section (1C), the transfer can only be ordered if it is expedient for the ends of justice having regard to the circumstances of the case and not merely for administrative reasons. Besides this, the limitation existing under Sub -section (1A) that transfer can only be ordered before the commencement of the trial or hearing of the appeal is not imposed in Sub -section (1C). Sub -section (1C) was introduced to remove the limitation imposed on the powers of the Sessions Judge to transfer a case pending before any criminal Court in the Sessions division if it appeared expedient for the ends of justice to do so and if a party made an application to that effect.;