Criminal Misc. No. M-5219 of 2010 v. State of Haryana

'State Vs. Dharambir Yadav', pending in the Court of Mr. A.K. Gupta, Special Judge, Gurgaon, was transferred, to the Court of Mr. R.S. Bagri, Special Judge, Nuh at Mewat, has been filed by the petitioner.

2. I have heard the Counsel for the parties, and, have gone through the documents, on record, carefully. Criminal Misc. No. M-5219 of 2010 2

3. The Counsel for the petitioner, submitted that, FIR No. 24 dated 31.05.02, under Section 13(e) of the Prevention of Corruption Act, 1988 (hereinafter to be called as the 'Act' only), Police Station SVB, Gurgaon, was registered, against the petitioner, wherein, he was chargesheeted. She further submitted that, the trial, was conducted, and, ultimately, the petitioner, was convicted, for the offence punishable under Section 13(e) of the Act, and sentenced, to undergo, rigorous imprisonment, for a period of four years, and, to pay a fine of Rs. 10,000/-, by the Court of Mr. Balbir Singh, the then Special Judge, Gurgaon, vide the judgement of conviction dated

07.02.08, and the order of sentence dated 08.02.08. She further submitted that, being aggrieved against the judgement of conviction and the order of sentence, CRA No. 495-SB of 2008, before this Court, was filed. She further submitted that, this Court, remanded the case back, to the trial Court, for fresh decision, in the light of the written submissions, submitted by the Counsel for the petitioner, and, the parties, were directed, to appear, in the trial Court, on

16.12.09. She further submitted that, in compliance with the order of this Court, the petitioner, put in appearance, before the Court of Sessions Judge, Gurgaon, on 16.12.09. She further submitted that, the matter, remained pending, in the Court of Special Judge, Gurgaon, from 16.12.09 to 15.02.2010. She further submitted that, ultimately, the Court of Special Judge, Gurgaon, made a reference dated 15.02.2010, to the Sessions Judge, Gurgaon, for transfer of this case, and accordingly, the same, was transferred. She further Criminal Misc. No. M-5219 of 2010 3 submitted that, as per the provisions of Section 409(2) Cr.P.C., the Sessions Judge, Gurgaon, could only transfer the case, pending before an Additional Sessions Judge (Special Judge) before the commencement of trial. She further submitted that, since the trial, had already concluded, and, only the case, was to be decided afresh, after taking into consideration, the written submissions, submitted by the Counsel for the petitioner, the Sessions Judge, Gurgaon, had no power, to transfer the case, to the Court of Additional Sessions Judge, Nuh (Special Judge). The counsel for the petitioner also placed reliance of the cases, referred to in the subsequent paragraphs, in support of her contention. She further submitted that, the order impugned, being illegal, is liable to be set aside.

4. On the other hand, the Counsel for the respondent – State, submitted that, the order impugned, passed by the Court of Sessions, is legal and valid. He further submitted that the Court of Sessions, Gurgaon, was vested with the power, to transfer the case, after the same, was remanded, by this Court, to some other Court. He, however, did cite any case law, in support of his contention.

5. After giving my thoughtful consideration, to the rival contentions, raised by the Counsel for the parties, in my considered opinion, the petition, is liable to be accepted, for the reasons, to be recorded, hereinafter. The Sessions Judge, is empowered, under Section 409 Cr.P.C., to withdraw the case and appeals. Section 409 Cr.P.C., reads as under:- “409. Withdrawal of cases and appeals Criminal Misc. No. M-5219 of 2010 4 by Sessions Judges – (1) A Sessions may withdraw any case or appeal from or recall any case or appeal which he has made over to, any Assistant Sessions Judge or Chief Judicial Magistrate subordinate to him. (2) At any time before the trial of the case or the hearing of the appeal has commenced before the Additional Sessions Judge, a Sessions Judge, may recall any case or appeal which he has made over to any Additional Sessions Judge. (3) Where a Sessions Judge withdraws or recalls a case or appeal under Sub-Section (1) or Sub-Section (2) he may either try the case in his own Court or hear the appeal himself, or make it over in accordance with the provisions of this code to another Court for trial or hearing, as the case may be.” The perusal of Sub-Section (2) of Section 409 Cr.P.C., reveals that, at any time, before the trial of the case or the hearing of the appeal, has commenced, before the Additional Sessions Judge, the Sessions Judge, may recall any case or appeal, which he has made over to any Additional Sessions Judge. But when the trial of the case or the hearing of appeal has commenced, in the trial court or the Appellate Court, then the Sessions Judge, has no power, to withdraw or recall the case or appeal. Similar proposition of law, was laid down, in Raj Singh and another Vs. State of Haryana, 2003(3), RCR (Criminal), 656, a case, decided by a single Bench of this Court. In Amrithappa and another Vs. State of Karnataka, 1982, Criminal Law Journal, 1336, a Division Bench of the Karnataka High Court, observed as Criminal Misc. No. M-5219 of 2010 5 under:- “Under the powers vested in me under Section 409 Cr.P.C., 1973, the Sessions Case No. 21 of 1990 now pending on the file of II Additional Sessions Judge, Dharwar is hereby withdrawn from his file and taken to the file of Principal Sessions Judge, Dharwar, for disposal according to law. It is plain from the order that the Principal Sessions Judge while passing the order has overlooked Section 409(2) Cr.P.C., which reads as follows:- 'At any time before the trial of the case or the hearing of the appeal has commenced before the Additional Sessions Judge, a Sessions Judge, may recall any case or appeal which he has made over to any Additional Sessions Judge.' The Sessions Judge has made use of the provisions of Section 409(1) Cr.P.C. Section 409(1) Cr.P.C., would have been applicable in case the Second Additional Sessions Judge had not commenced the trial. What the Principal Sessions Judge has done after passing the above order is to examine one more witness as PW10 and five Court witnesses. He had no jurisdiction to withdraw the case under Section 409(1) Cr.P.C., in view the case under Section 409(2) Cr.P.C., and, proceed with the trial. Therefore, the trial held by the Principal Sessions Judge, is not in accordance with law and as such is without jurisdiction.”

6. A Division Bench of the Delhi High Court, in Ram Singh Vs. The State and another, 1990(3), Recent Criminal Reports, 386, while examining the powers of the Sessions Judge, to withdraw the cases, under Section 409 Cr.P.C., observed that, after commencement of the proceedings, when evidence, was being Criminal Misc. No. M-5219 of 2010 6 recorded, the withdrawal of the case, was in contravention of the provisions of Sub-Section (2) to Section 409 Cr.P.C. In that case, the case of Ram Singh, petitioner, and a number of other cases, pending in the Court of the Additional Sessions Judge, Delhi were withdrawn. The case of Ram Singh was assigned, to the Court of Mr. S.L. Bhayana, a newly appointed Additional Sessions Judge. The Division Bench, held that, the Sessions Judge, had no power, to withdraw the case, after commencement of the trial. Similar view, was taken, by the Karnataka High Court, in P. Sridhar Vs. State by Cubbon Park Police, 2001(4), RCR (Criminal), 531. In the instant case, as stated above, the trial, had already concluded. After the remand of the case, the Court concerned, was only to go through the written submissions, already submitted by the Counsel for the petitioner, and, decide the case afresh. In these circumstances, the Sessions Judge, Gurgaon, in view of the provisions of Section 409(2) Cr.P.C. and the principle of law laid down, in the aforesaid cases, was not competent, to transfer the case to another Additional Sessions Judge, even if, reference, had been made, by the Additional Sessions Judge, before whom, the same, was pending. The order impugned, passed by the Sessions Judge, Gurgaon, being contrary to the provisions of Section 409(2) Cr.P.C., is illegal and deserves to be set aside.

7. For the reasons recorded above, Criminal Misc. No. M- 5219 of 2010, is accepted. The order dated 16.02.2010 (Annexure P3), passed by the Sessions Judge, transferring case No. Criminal Misc. No. M-5219 of 2010 7 07 of 2003, titled as 'State Vs. Dharambir Yadav', pending, in the Court of Mr. A.K. Gupta, Special Judge, Gurgaon, to the Court of Mr. R.S. Bagri, Special Judge, Nuh at Mewat, is set aside. The said case, is ordered, to be re-transferred, to the Court, which initially decided the same, and if the Presiding Officer of that Court, has already been transferred, then to his successor Court (if vested with the powers of the Special Judge). The Court of Mr. R.S. Bagri, Additional Sessions Judge, Gurgaon, is directed, to send the case, to the Court of Sessions Judge, Gurgaon who shall assign the same to the Court of Special Judge, who initially decided the same, and if the presiding officer of the same has already been transferred, then to the successor Court (if vested with the powers of Special Judge) and, if such Court is not vested with the powers of Special Judge, then to a Special Judge, at Gurgaon.

8. The parties, shall appear, before the Court of Special Judge, Nuh, on 20.08.2010, which shall carry out the orders of this Court, referred to above and submit the compliance report.

9. The Sessions Judge, Gurgaon shall also comply with the order and submit the compliance report.

10. The Registry is directed, to comply with the order immediately, by all means of communication, so as to ensure, that the copies thereof, are sent, to the Courts concerned immediately i.e. well before the date fixed.

29.07.2010 Amodh (SHAM SUNDER) JUDGE