S. 408 CrPC | Can A Part-Heard Trial Be Transferred To Original Judge's New Court Within Same Division? Allahabad High Court Answers

The Allahabad High Court has ruled that a Sessions Judge has the power and discretion under Section 408 CrPC to transfer a part-heard criminal trial to the new court of a transferred judicial officer within the same Sessions Division, provided the new court has the jurisdiction to try the case.Dismissing a petition that challenged the validity of such a transfer, a bench of Justice Subhash Vidyarthi observed that if a criminal trial is transferred so the original presiding officer can retain the "advantage of watching the demeanor" of witnesses, the order "does not defeat the ends of justice" and cannot be termed an "abuse of the process of court".Case in brief Briefly put, a criminal trial was ongoing in the Court of the Additional Session Judge/Special Judge ATS, Lucknow, which was being presided over by Judicial Officer Abhinay Kumar Mishra. While presiding over this court, he recorded the testimony of as many as nine prosecution witnesses. However, the Judicial Officer was transferred to the Court of the Additional Sessions Judge, Court No. 4/Special Judge, Gangsters Act, which falls within the same Lucknow Sessions Division. Thereafter, Judicial Officer Shashwat Pandey took over the Court of Additional Session Judge/Special Judge ATS, Lucknow, and he proceeded to record the testimony of the tenth prosecution witness (PW-10). At this stage, the complainant moved a Transfer application under Section 408 CrPC before the Sessions Judge, seeking to transfer the trial of the case to the predecessor judge's new court. The complainant argued that continuing the trial before the predecessor judicial officer, who has already heard a substantial part of the matter, would advance the cause of a fair trial, judicial continuity, proper appreciation of the evidence, and judicial economy. Finding merit in the application, the Sessions Judge allowed it and transferred the trial to the predecessor judge's new court within the same Lucknow division. Aggrieved by this transfer, the accused approached the High Court, arguing that Section 326 of the CrPC explicitly provides that after the transfer of a Presiding Officer, the subsequent incumbent will have the jurisdiction to decide the trial. It was also contended that, since the new judge at the ATS Court had already begun recording evidence and there was no allegation of bias, there was no valid reason to transfer the case. High Court's observations At the outset, the bench noted that the accused-applicant had filed the petition under the incorrect section (407 CrPC) and that he ought to have filed a petition under Section 482 CrPC/Section 528 BNSS. Clarifying the statutory framework, the Court observed thus: "When an applicant files an application before the Sessions Judge for transfer of a case under Section 408 CrPC and that application is rejected, the applicant can approach the High Court by filing a transfer application under Section 407 CrPC, as is specifically mentioned in the proviso appended to Sub-section (2) of Section 407. However, when a transfer application filed under Section 408 CrPC is allowed by the Sessions Judge, the person aggrieved by the transfer order cannot challenge the same by filing another application under section 407 CrPC. The validity of a transfer order can only be challenged by invoking the inherent powers of the High Court, as acknowledged by Section 482 CrPC". However, the High Court chose not to reject it on this technical ground and examined the merits in exercise of its inherent powers under Section 482 CrPC. The High Court pointed out that the Court in which the trial was originally proceeding and the Court to which the transfer was made both have jurisdiction to decide the trial. The bench therefore clarified that the successor Judge will have jurisdiction to decide the case, as jurisdiction is vested in 'the Court' and not in 'the Presiding Officer'. Hence, the bench opined that the Sessions Judge possessed the discretion under Section 408 CrPC to allocate the trial to either court if it was deemed "expedient for the ends of justice". The High Court also noted the fundamental principle of appreciation of evidence in a criminal trial. "It is settled law that the Courts should give due consideration to the demeanour of the witnesses", Justice Vidyarthi observed. The Court noted that the trial had continued before a particular Presiding Officer who had "the advantage of watching the demeanour of nine prosecution witnesses, which included all the witnesses of fact". Therefore, it added, if the Sessions Judge found it appropriate to transfer the trial to that officer's new court within the same division, the Sessions Judge did not commit any error or illegality. In view of this, finding no merit in the plea, the petition was dismissed.Counsel for Applicant(s): Sushil Kumar Singh, Ayush Singh Counsel for Opposite Party(s): G.A.,...

S. 408 CrPC | Can A Part-Heard Trial Be Transferred To Original Judge's New Court Within Same Division? Allahabad High Court Answers

Sparsh Upadhyay

Transferring a case so the judge can retain the "advantage of watching the demeanor" of witnesses is a valid exercise of power u/s 408 CrPC, HC said.

This is a premium content
Available exclusively to
Our subscribers

INR 1099+GST

Tags

Sparsh Upadhyay

S. 408 CrPC | Can A Part-Heard Trial Be Transferred To Original Judge's New Court Within Same Division? Allahabad High Court Answers

Sparsh Upadhyay

Transferring a case so the judge can retain the "advantage of watching the demeanor" of witnesses is a valid exercise of power u/s 408 CrPC, HC said.

This is a premium content Available exclusively to Our subscribers

INR 1099+GST

Tags

Sparsh Upadhyay

This is a premium content
Available exclusively to
Our subscribers