Gopi Nath, J.@mdashThese are applications u/s 407 of the Code of Criminal Procedure for transfer of sessions trials form the Court of one
Additional Sessions Judge to that of another Additional Sessions Judge on the ground that the Judge to whose Court transfer is sought had heard it
in part. The applications raise a common question as regards hearing of part-heard sessions cases, and have been referred to a Division Bench as a
large number of such cases are pending in this Court involving that question. These transfer applications shall accordingly be disposed of by a
common judgment.
2. The question for decision is whether a sessions trial commenced by an Additional Sessions Judge who continues to be Additional Sessions
Judge in the same sessions division but whose designation has changed, should be concluded by him or by another Additional Sessions Judge who
has been conferred the designation earlier possessed by the Additional Sessions Judge who had commenced the trial.
3. In Criminal Misc. Transfer Application No. 2015 of 1982, transfer has been sought of Sessions Trial No. 194 of 1980, State v. Punjab Singh
and Ors. pending in the Court of Sri. L.N. Rai, III Additional Sessions Judge, to the Court of Sri. R.C. Gupta, II Additional Sessions Judge, on
the ground that charges had been framed in the case by Sri. R.C. Gupta while he was III Additional Sessions Judge but has now been designated
as II Additional Sessions Judge, and he had also passed orders for the appearance and examination of the witnesses before him, although no
witness had been examined by him in the case. In this case, an order had been passed by the Administrative Judge of this Court allotting this case
to the file of Sri. L.N. Rai, III Additional Sessions Judge, in exercise of his administrative powers on a reference made by the Sessions Judge. Thus
this case has gone to the file of Sri. L.N. Rai on an order passed by the Administrative Judge.
4. In Criminal Misc. Transfer Application No. 2462 of 1982, transfer is sought of Sessions Trial No. 1 of 1974, State v. Mool Chand, to the
Court of Sri. P.C. Agrawal who earlier was X Additional Sessions Judge and has now been designated as VII Additional Sessions Judge, who has
been appointed a Special Judge to try cases u/s 161 IPC and Section 5(2) of Prevention of Corruption Act, from the Court of the present X
Additional Sessions Judge, who also is a Special Judge, on the ground that Sri. P.C. Agrawal had examined almost all the witnesses of fact in the
case.
5. In Criminal Misc. Transfer Application No. 4779 of 1972, transfer has been sought of Sessions Trial No. 148 of 1980, State v. Kamla, pendine
in the Court of Sri. L.N. Rai, III Additional Sessions Judge, to the Court of Sri. R.C. Gupta, II Additional Sessions Judge, on the ground that
charges had been framed by Sri. R.C. Gupta in the case, and hence it had become part-heard. This case is on the file of Shri L.N. Rai under an
administrative order passed by the Administrative Judge.
6. In Criminal Misc. Transfer Application No. 4811 of 1982, the applicants have prayed for the transfer of Sessions Trial No. 378 of 1980, State
v. Bhola Nath and Anr., from the Court of Sri. Brij Pal Singh, I Additional Sessions Judge, to the Court of Sri. K.C. Bhargava, II Additional
Sessions Judge, on the ground that Sri. Bhargava, who earlier was the I Addl. Sessions Judge and has now been designated as II Addl. Sessions
Judge, had heard the case and recorded the evidence of a large number of witnesses, and since he had done so as I Additional Sessions Judge,
and Sri. Brij Pal Singh had subsequently taken over as I Additional Sessions Judge and Sri. K.C. Bhargava was designated as II Additional
Sessions Judge, the case was retained in the Court of Sri. B.P. Singh, and the same needed to be transferred to the Court of Sri. K.C. Bhargava.
It may be observed that no specific order, of either allotment of the case to the Court of Sri. Brij Pal Singh, I Additional Sessions Judge, or the
transfer of the case to that Court had been brought to our notice.
7. In Criminal Misc. Transfer Application No. 4955 of 1982, Sessions Trial No. 184 of 1979, State v. Astafa and Ors., connected with Sessions
Trial No. 16 of 1982, State v. Abdul Rasheed, pending in the Court of Sri. V.K. Sircar, v. Addl. Sessions Judge, was sought to be transferred to
the Court of Sri. J.B. Singh, VI Addl. Sessions Judge on the ground that the evidence had been recorded by Sri. J.B. Singh who earlier was v.
Additional Sessions Judge, and has now become VI Additional Sessions Judge.
8. In Criminal Misc. Transfer Application No. 5046 of 1982, Sessions Trial No. 398 of 1980, State v. Sarvesh Kumar alias Pappu and Ors. has
been sought to be transferred from the Court of Sri. B.P. Singh, I Additional Sessions Judge, to the Court of Sri. K.C. Bhargava, II Additional
Sessions Judge, on the ground that a substantial part of the prosecution evidence had been recorded by Sri. K.C. Bhargava who earlier was the I
Additional Sessions Judge and whose designation has now been changed on account of the posting of Sri. B.P. Singh who has been conferred that
designation whereas Sri. K.C. Bhargava has been made the II Additional Sessions Judge.
9. In Criminal Misc. Transfer Application No. 5442 of 1982, transfer is sought of Sessions Trial No. 487 of 1980, State v. Munni Lal and Ors.,
from the Court of Sri. B.P. Singh, I Additional Sessions Judge, to the Court of Sri. K.C. Bhargava, II Additional Sessions Judge, as the latter had
heard the case and recorded almost the entire prosecution evidence. In this case, an application was moved to the Sessions Judge for the transfer
of the case but he rejected the same on the ground that this being a part-heard case, he had no jurisdiction to pass any order. He, however, made
an observation that the present I Additional Sessions Judge who was the successor of Sri. K.C. Bhargava could try the case.
10. In Criminal Misc. Transfer Application No. 5443 of 1982, transfer has been sought of Sessions Trial No. 439 of 1980, State v. Daya Shanker
and Ors., from the Court of Sri. Brij Pal Singh, I Additional Sessiosns Judge, to the Court of Sri. K.C. Bhargava, who earlier was the I Additional
Sessions judge and has-now been designated as H Additional Sessions Judge, on the ground that the case was part-heard by him as he had
recorded the evidence of the prosecution witnesses.
11. The words ''trial'' and ''try'' in quite a number of Sections- of the Code of Criminal Procedure, have been used as referring to a stage after the
Inquiry but that meaning attaches to those words in the Sections having regard to the context in which they are used (see The State of Bihar Vs.
Ram Naresh Pandey, . The word ''trial'' is''not ''defined in the present Code of Criminal Procedure. In the Code of 1872, ''the word ''trial'' was
defined as the proceedings taken in Court after a charge had been drawn up, and included the punishment of the offender. That definition was,
however, omitted in the subsequent Codes, and it thus does not have a defined meaning. Commonly understood, however, it means the
proceedings taken in Court from the stage of framing of the charge and ending with the conviction or acquittal. By Section 4, read with Section
326 of the Code of Criminal Procedure, 1973 (hereinafter referred as ''the Code''), every criminal proceeding is to be taken according to the
provisions of the Code by the Court competent in that behalf, which may be the High Court, the Court of Session or any other Court by which
such an offence shown in the first Schedule to be triable. Section 6 provides for the constitution'' of Courts and enumerates the following classes of
Courts:
1. High Courts;
2. Courts constituted under any law;
3. Courts of Session;
4. Judicial Magistrates of the first class and, in any metropolitan area, Metropolitan Magistrate;
5. Judicial Magistrates of the second class; and
6. Executive Magistrates.
Section 9 then provides for a Court of Session and states:
9. Court of Session.-(1) The State Government shall establish a Court of Session for every sessions division.
(2) Every Court of Session shall be presided over by a Judge, to be appointedr by the High Court.
(3) The High Court may also appoint Additional Sessions Judges and Assistant Sessions Judges to exercise jurisdiction in a Court of Session.
(4) The Sessions Judge of one sessions division may be appointed by the High Court to be also an Additional Sessions Judge of another division;
and in such case he may sit for disposal of cases of such place or places in the-other division as- the High Court may direct....
12. Under Sub-section (I) there shall be only one Court of Session in, evrey sessions division which has to be presided over by a Sessions Judge
vide Sub-section (2) though manned by Additional or Assistant Sessions Judges as well as provided, by Sub-section (3) in view of the workload.
Thus provision has been made for the appointment of Judges in addition to the Session Judge in a sessions division to man the work of the Court of
Session which could not be handled by the Sessions Judge alone. Such Judges have been given the designation of Additional Sessions Judge and
Assistant Sessions Judge to exercise jurisdiction in the same Court of'' Session. They are criminal Courts but it may not be quite accurate to use
such expression as ''Court of Additional or Assistant Sessions Judge there being: only one Court of Session in a sessions division and the
Additional or Assistant Sessions Judges are only the Judges of a Court of Session; The appointment of Additional Sessions Judge does not
constitute an additional) Court of Session, and he can only try such cases as the High Court may direct or the Sessions Judge may make over to
him (see Sections 194 and-381 of the Cases)
Under Section 193(2) of the Code of Criminal Procedure, 1898 (hereinafter referred as ''the old Code'', such a direction could be given by the
State Government. A case or an appeal made over to an Additional Sessions Judge can, however, be recalled from him and heard by the Sessions
Judge himself or transferred to another Additional Sessions Judge for disposal-see Emperor v. Birju Marwari ILR 1944 All. 157. But an
Additional Sessions Judge has no power to transfer a case or an appeal either from his own file or from the file of another Additional Sessions
Judge. All Assistant Sessions Judges have been made subordinate to the Sessions Judge, who shall distribute the work among Assistant Sessions
Judges, and in his absence, an Additional Sessions Judge nominated by him in this regard may act on his behalf (see Section 10). Section 32 of the
Code deals with the conferment of powers under the Code and states:
32. Mode of conferring powers.-(1) In conferring powers under this Code, the High Court or the State Government, as the case may be, may, by
order,empower persons specially by name or in virtue of their offices or classes of officials generally by their official titles ....
Powers of officers have been provided in Section 33. Section 34 then deals with the withdrawal of powers and states that the High Court or the
State Government, as the case may be, may withdraw all or any of the powers conferred by it under this Code on any person or by any officer
subordinate to it. Section 35 then deals with powers of Judges and Magistrates exercisable by their successors-in-office, and so far as material,
states:
35. Powers of Judges and Magistrates exercisable by their successors-in-office-
(1) Subject to the other provisions of this Code, the powers and duties of a Judge or Magistrate may be exercised or performed by his successor-
in-office.
(2) When there is any doubt as to who is the successor-in-office of any Additional or Assistant Sessions Judge, the Sessions Judge shall determine
by order in writing the Judge who shall, for the purposes of this Code or of any proceedings or other thereunder be deemed to be the successor-
in-office of such Additional or Assistant Sessions Judge.
The successor-in-office of a Judge or a Magistrate may thus exercise the powers or perform the duties of his predecessor-in-office. If there is only
one Court of Session, a question may arise who would, in law, be the successor-in-office of an Additional Sessions Judge for the purposes of any
proceeding commenced by another Additional Sessions Judge. This has to be determined by the Sessions Judge by an order in writing, as laid
down in Sub-section (2) of Section 35. As to the proceedings commenced by hearing and recording of evidence by any Judge, Section 326
provides, for the power of a successor Judge in the event of the predecessor ceasing to exercise jurisdiction in the inquiry or trial, and the
procedure to be followed by him. The Section reads 5:
326. Conviction or Commitment on evidence partly recorded by one Judge or Magistrate and partly by another-(1) Whenever any Judge or
Magistrate, after having heard and recorded the whole or any part of the evidence in an inquiry or trial, ceases to exercise jurisdiction therein, and
is succeeded by another Judge or Magistrate who has and who exercises such jurisdiction, the Judge or Magistrate so succeeding may act on the
evidence so recorded by his predecessor, or partly recorded by his predecessor and partly recorded by himself
Provided that if the succeeding Judge or Magistrate is of opinion that further examination of any of the witnesses whose evidence has already been
recorded is necessary in the interests of justice, he may re-summon any such witness and after such further examination, cross-examination and re-
examination, if any, as be may permit, the witness shall be discharged.
(2) When a case is transferred under the provisions of this Code form one Judge to another Judge or from one Magistrate to another Magistrate,
the former shall be deemed to cease to exercise jurisdiction therein, and to be succeeded by the latter, within the meaning of Sub-section (1).
(3) Nothing in this Section applies to summary trials or to cases in which proceedings have been stayed u/s 322 or in which proceedings have been
submitted to a superior Magistrate u/s 325.
The corresponding Section in the old Code was Section 350 which reads as follows:
350. Conviction or commitment on evidence partly recorded by the Magistrate and partly by another.-(1) Whenever any Magistrate, after having
heard and recorded the whole or any part of the evidence in an inquiry or a trial, ceases to exercise jurisdiction therein, and is succeeded by
another Magistrate who has and who exercises such jurisdiction, the Magistrate so succeeding may act on the evidence so recorded by his
predecessor, or partly recorded by his predecessor and partly recorded by himself:
Provided that if the succeeding Magistrate is of opinion that further examination of any of the witnesses whose evidence has already been recorded
is necessary in the interests of justice, he may re-summon any such witness and after such further examination, cross-examination and re-
examination, if any, as he may permit, the witness shall be discharged.
(2) Nothing in this Section applies to cases in which proceedings have been stayed u/s 346 or in which proceedings have been submitted to a
superior Magistrate u/s 349.
(3) When a case is transferred under the provisions of this Code from one Magistrate to another, the former shall be deemed to cease to exercise
jurisdiction therein, and to be succeeded by the latter within the meaning of Sub-section (1).
The Law Commission, in its 41st report, recommended that the provisions of Section 350 relating to part-heard cases may be extended to
Additional Sessions Judges also as the old practice under the old Code, in respect of disposal of part-heard sessions trials was causing undue
delay and inconvenience on account of the transfer of Sessions Judges from one sessions division to another. The Section in its present form thus
came to be enacted to get over the difficulty caused by the transfer of Judges from one division to another.
13. u/s 350 of the old Code, a part-heard sessions trial had to be concluded by the Sessions Judge who had commenced it, and he had to come
back to conclude the same if he had been transferred to another sessions division. To cover this situation, an amendment was made in the
provisions of Section 326 to enable a successor-in-office of a Sessions Judge to continue the part-heard session''s trial from the stage it was left
over by his predecessor. Section 326 thus is an exception to the general Rule that he who hears should decide. The normal principle applicable to
criminal cases that he alone may decide who has heard the evidence has consistently been applied by Courts to ensure fair justice to the parties-
see Smt. Guhar v. Nizam 1981 Allahabad Criminal Rulings 18, Karam Chand v. State of U.P. 1980 ACR 346 , Payare Lal Vs. State of Punjab, ,
in re T.A. Fernandez accused-applicant AIR 1958 Mad 571 and In re Imbrahim Ali, accused-Appellant 1960 Criminal L.J. 882.
14. In this background the scope and true construction of Section 326 has to be determined. Like all statutory exceptions to the Rules of common
law, the Section has to be strictly construed. Two kinds of cases may arise to which the provisions of Section 326 may be sought to be attracted-
(i) where the Judge commencing the trial has been transferred outside the sessions division, and he has been succeeded by another Judge in the
sessions division, from which the first Judge has been transferred, and (ii) where the Judge who commenced the trial continues in the same session
s division but his designation has undergone a change and the one possessed by him has been conferred on another Judge in the same sessions
division. To the cases of category (i) Section 326 will clearly apply. To the cases of category (ii), the terms of the allotment order by which cases
were i allotted to the former Judge would be material. If the allotment was by name, the cases allotted to the Judge would be tied- up to him. The
cases allotted by designation will again fall in two categories (1) where the proceedings had been commenced by the Judge in the case allotted to;
his file and the same had become part-heard and (ii) where the proceedings had not commenced. We are not concerned with the second category.
The question involved in the instant cases relates to the first category, and what has to be seen is whether the Judge commencing the trial has the
power to continue the same, or that power is affected by the change in his designation.
15. A right to continue a pending case is in the nature of a vested right which cannot be taken away except by a clear Indication of intention to that
effect (see AIR 1943 24 (Federal Court) . The case related to a suit which had been instituted in 1932 in respect of properties situated in British
India and in Burma. A question arose whether after the separation of Burma in 1937, the Court in British India had the jurisdiction to proceed with
the trial of the suit with respect to the property situate in Burma. It was held that the Court had the jurisdiction and could proceed with the trial, and
the jurisdiction was nol affected by some, of the properties falling in Burma which had been separated from British India. The Federal Court
observed that the right to continue a duly instituted suit was in the nature of a vested right and could not be held to have been taken away except
by a clear indication of intention to that effect. Their Lordships relied strongly on the case of Colonial Sugar Refining Co. v. Irving 1905 A.C. 369
and observed that the observations made therein necessarily involve recognition of a valuable right that the proceedings should in due course be
tried and disposed of by the tribunal before which It had been commenced. Their Lordships observed;
...The true position, as we have already stated, is not whether there is an express provision permitting the continuance of pending proceedings, but
whether there is any clear indication against the continuance of pending proceedings to their normal termination.
In Indermull Loniya v. Subordinate Judge, Secunderabad AIR 1958 AP 779 it was held:
It is well settled that a Court cannot be divested of its jurisdiction to hear a pending case notwithstanding the amendment of law, unless it expressly
provides so.
In Penumatcha Neelakanteswaraju and Others Vs. Jaddu Mangamma and Others, it was held:
A jurisdiction once vested cannot be divested unless the legislature has expressly or by necessary intendment directed otherwise.
That case was concerned with the true scope and effect of Section 56(1) of Andhra Pradesh (Andhra Area) Estates (Abolition and Conversion
into Ryotwari) Act, which reads as follows:
Where after an estate is notified, a dispute arises as to (a) whether any rent due from a ryot for any fasli year is in arrear or (b) what amount of rent
is in arrear or (c) who the lawful ryot in respect of any holding is, the dispute shall be decided by the Settlement Officer.
The Full Bench observed :
...The language of Section 56(1) does not lend itself to the interpretation, whether express or implied that the authorities already seized of a dispute
in respect of matters referred to in that Sub-section are prohibited from adjudicating thereon.
It was further observed:
.... Whatever be its origin, the presumption is in favour of the continuance of the jurisdiction vested in the Courts unless otherwise so directed by
the statute. It would not be''iaferred''merely from the grant of jurisdiction to anew tribunal over certain matters that the legislature intended to
deprive the superior Court of the jurisdiction which It had already possessed over the same cases.
Maxwell on the Interpretation of Statutes (Tweilth Edition) paga 153 States:
The fact that jurisdiction is conferred on one authority does not necessarily take away jurisdiction which another already possesses in the same
matter.
In Emperor v. Syed, Sajjad Hussain, IV Criminal Law Journal Reports 140, the trial was commenced by an officiating District Magistrate and
concluded by him after he had ceased to, act as a District Magistrate but had continued as a First, Class, Magistrate. On a question raised as to
whether he had no jurisdiction to continue the trial after ceasing to act as District Magistrate, it was held that the Magistrate had the jurisdiction to
continue the trial to its conclusion. It was observed that the case being of a nature which the particular Magistrate (Mr. Lomas) had the jurisdiction
to hear and determine before he was District Magistrate, after he was District Magistrate and when he ceased to act as District'' Magistrate, the
mere fact that he commenced the trial while he was officiating as District Magistrate did not prevent him from continuing to try the case after he
reverted to a Magistrate of the First Class for the district. (See also Queen Empress v. Smt. Ahobalamatam Jeer, Indian Law Reports XXII
Madras 47). It is thus, not the designation but the substantive office and the nature of the case which determine ''the jurisdiction. In Musammat
Mithani v. Emperor, XIII The. Criminal-Law Journal Reports 203, it was held that cases on the file of a Magistrate-la a district do not
automatically pass to his successor in the local area merely.because,the former has been transferred to another local area in the same district. In
Balwant v. Kishan, Indian Law Reports Vol. XIX Allahabad 114, a question arose whether a Deputy Collector had ceased to exercise jurisdiction
in respect of a case, and it was observed that any number of such officers may be appointed by the Government to a particular district, and the
assumption of the Office of Deputy Collector by one officer in a district does not necessarily lead to the result that another Deputy Collector who
has been performing the duties of a magistrate in that district ceases to have jurisdiction in the district. The jurisdiction of each officer within a
specific area depends upon the orders of Government appointing trim to exercise jurisdiction within that area. In Pay are Payare Lal Vs. State of
Punjab, where the successor Special Judge tried the case from the stage at which his predecessor had left it, the Supreme Court observed :
The trial offended the cardinal principle of law namely that it is, a right of an accused person that his case should be decided by a judge who has
heard the whole of it, the acceptance of which by the Code was clearly manifest from the fact that the Code embodied an exception to that
principle in Section 350.
It was further observed:
There is no controversy that the general principle of law is that a judge or magistrate can decide a case only on evidence taken by him. Section 350
of the Code is a statutory departure from this principle.
16. In order to attract the provisions of Section 326, to enable a successor Judge to continue a trial from the stage left by his predecessor, two
conditions must be satisfied-(i) that the first Judge had heard and recorded the whole or part of the evidence and (ii) that he had ceased to exercise
jurisdiction in the case. The expression ""ceases to exercise jurisdiction therein occurring in Sub-section (1) of Section 326 of the Code points to
the ceasing of jurisdiction in the inquiry or trial, and not to the designation of the officer. Further, the words"" and is succeeded by another Judge
who has and who exercises such jurisdiction"" as, occurring in Sub-section (1) of Section 326 refer to the jurisdiction in the inquiry or trial. Thus, if
a Judge has commenced a trial possessing a particular designation, i.e. as additional Sessions Judge No. II, and he has subsequently been
conferred the designation of Additional Sessions Judge No. 1 the judge who succeeds him as Additional Sessions Judge No. II may not continue
the trial commenced by his predecessor until the jurisdiction of the predecessor has ceased in the trial and the successor has such jurisdiction in the
trial. The words ""ceases to exercise jurisdiction therein"" will thus mean ""ceases to exercise jurisdiction to continue a part heard trial"" and the words
who has and who exercises such jurisdiction"" will mean ""who has the jurisdiction to try such cases and who exercises such jurisdiction"". He would
then act on the evidence recorded by his predecessor, or partly recorded by his predecessor and partly recorded by him. Sub-section (2) of
Section 326 further clarifies this position. It refers to one of the modes in which a Judge may be deemed to cease to exercise jurisdiction in an
inquiry or trial. The mode is by the transfer of a case from one Judge to another. This has to be done by an order. Thus unless an order is passed
to that effect, whether Administrative or Judicial, the Judge who was seized of the matter would not be deemed to have ceased to exercise the
jurisdiction vested in him. The transfer order has to be made in respect of the case. That order may be a general or a special order.
17. Section 326 thus deals with part heard cases and provides for the powers of the Judge and the procedure to be followed by him in respect
thereof with reference to the situations arising therein. The part-heard case in an inquiry or trial, has to reach a stage where the Judge has heard and
recorded the whole or any part of the evidence therein, and thereafter if the Judge ceases to exercise jurisdiction therein and is succeeded by
another Judge who has or would exercise such jurisdiction, namely, the jurisdiction to continue the trial, he may act on the evidence recorded by
his predecessor or may record the evidence himself, and then conclude the trial. In this regard, if the succeeding Judge finds it necessary that he
should re-summon the witnesses or any of them, he may do so, and after such further examination, cross-examination or re-examination as he may
permit, the witness or witnesses may be discharged.
18. The first question thus is when and how does the jurisdiction of one Judge who commenced a particular trial cease therein, and second when
and how does his successor, which term means he who takes his place or comes in his position, assume jurisdiction to try the case commenced by
the first Judge. In order to permit a trial commenced by one Judge to be continued by his successor, it may be necessary that the duties of one are
transferred to the other. This may happen by an order, general or special in nature, or by situations arising in the case. As observed earlier, under
the old Code, when a Sessions Judge was transferred from one session''s division to another session''s division, he was required to come back and
to conclude the trial which he had commenced. This procedure is departed from under the provisions of Section 326. But to the continuance of a
trial by a Judge who had commenced the same as being a Sessions Judge available in the same session''s division, the Section gives no contrary
indication.
A strong leaning exists against construing a statute so as to oust or restrict the jurisdiction of the superior Courts....the well known Rule that a
Statute should not be construed as taking away the jurisdiction of the Courts in the absence of clear and unambiguous language to that effect now
rests on a reluctance to disturb the established state of the law or to deny to the subject access to the seat of justice... (See Maxwell on
Interpretation of Statutes, 12th Edition, page 153).
It is the right of an accused that his case should be decided by a Judge who has heard and recorded the evidence. Thus, unless the jurisdiction of
the first Judge to continue the trial is taken away expressly or by necessary implication either under a statutory provision or an order passed to that
effect by a competent authority, the Judge shall continue to exercise the jurisdiction to continue a part-heard trial, and he would not be deemed to
have been divested of it merely because a change has taken place in his designation. If this be not the true Rule, successive change in the
designation of Additional Sessions Judges would result in successive change of hands in the trial of part-heard cases, which does not seem to be
the intention of the legislature behind the provisions of Section 326.
Ceasure of jurisdiction may occur by:
(i) natural causes,
(ii) transfer of Judge outside the sessions division;
(iii) general or special order in respect of the Judge;
(iv) general or special order in respect of the case; and
(v) transfer of the case by a Judicial order.
Natural causes may include death or retirement of a Judge or other similar situations. By transfer outside the sessions division a Judge would cease
to be a Sessions Judge exercising Sessions powers in the sessions division from which he had been transferred, and accordingly he would cease to
exercise jurisdiction in the trial commenced by him as contemplated by Section 326 unless directed otherwise. General or special orders in respect
of a Judge will include orders conferring or withdrawing powers to be exercised by him under the Code. General or special orders in respect of
cases may include administrative orders making over or withdrawing cases from the file of a Judge by the Sessions Judge or special orders passed
by the High Court giving directions in respect of the trial of cases. This is contemplated by Sections 194 and 381 of the Code. Transfer of cases by
judicial orders will refer to orders passed u/s 407 by the High Court and under Sections 408 and 409 passed by the Sessions Judge. The Sessions
Judge is prohibited from recalling or transferring part-heard cases u/s 409, and in the reference in Criminal Misc. Case No. 747 of 1971 and Cr.
Misc. Case No. 3318 of 1972 on 17-9-1974 it was held that he could not do so under Sub-section (1-C) of Section 528 of the old Code
corresponding to Section 408 of the Code although the Addl. Sessions Judge was a criminal Court under the supervisory control of the Sessions
Judge. High Court has unfettered powers in this regard u/s 407. Sri. Palok Basu, in Cr. Misc. Transfer Application Nos. 2015 of 1982, 4779 of
1982 submitted that the administrative powers u/s 194 could be exercised only so long as the case was not heard in part by an Additional Sessions
Judge, and not thereafter as the Section dealt with the initiation of proceedings. Thus neither the Sessions Judge nor the High Court on the
administrative side could pass orders withdrawing a case from the file of one Judge and making it over to another Judge after the proceedings had
been initiated. Section 194 falls in Chapter XIV which deals with the conditions requisite for initiation of proceedings. By allotment of a case a
condition referring to the power of a Judge to try it is fulfilled which otherwise he would not be competent to try but a prescription as to a condition
to the exercise of power cannot be constructed as a fetter on the power of an authority to recall an order passed in respect of the condition to
initiate proceeding. It may withdraw a case from the file of one Judge unless that power is fettered. The contention is that the Sessions Judge has
no power to withdraw or transfer a case on the administrative, and the High Court can also do it only by a judicial order and not by an
administrative order. Reliance is placed on P. Sridhar Vs. The State of U.P. and Another, . That case is distinguishable. The Deputy Registrar in
that case issued directions in a part-heard case, and it was held that he could not do it. In Rahul Sharma Vs. The State of Rajasthan and Others, it
was held that the High Court u/s 194 could give administrative direction in respect of part-heard case. The field of operation on the administrative
and judicial sides are different. While in the one, administrative situations have to be tackled and orders are passed on administrative
considerations, in the other, fairness of trial, solution to legal problems and expediency of justice on a variety of grounds are the matters to be
considered. Administrative orders, whether general or special, may cover a body of cases while judicial orders have to be passed in individual
cases. The High Court''s power u/s 194 to give directions in respect of trial of cases is not to be construed in a narrow manner. The Section is
concerned with the distribution of work and over-all control of the High Court on the proceedings in the subordinate Courts. It may further be
observed that the Section deals with the power of the Additional Sessions Judge to try a case allotted to him by the Sessions Judge or under a
direction by the High Court. It does not deal with the kinds of general or special orders to be passed by the Sessions Judge or the High Court or
their powers In this behalf. To limit the power of the High Court to issue directions In respect of proceedings either to be initiated or already
commenced would affect its administrative control over them, which may, in situations arising by transfers and postings of Judges or conferring of
special powers or withdrawal of the same or the powers to be exercised by Additional Sessions Judge or the like, may call for- directions. The
words "".... by special order, direct him to try,"" seem to be wide enough to enable the High Court to issue administrative dlrect-ions at any stage of
a proceeding. The power of the Sessions Judge to recall a case made over to an Additional Sessions Judge on account of administrative situations
or to allot it to another Additional Sessions Judge is not beyond the scope of this Section-see Emperor v. Birju Marwari ILR 44 All 157 where the
general principle was considered and it was observed :
...We found nothing in the Code of Criminal Procedure to suggest that the jurisdiction of the Sessions Judge of Gorakhpur in respect of this appeal
had been ousted in consequence of any arrangement which he might previously have made for the convenient disposal of the work of that Sessions
Court.
The question whether a particular general or special order passed by a Sessions Judge is in accordance with law, is a different matter.
19. On the question of the powers of the Sessions Judge to transfer a case from one Additional Sessions Judge to another Additional Sessions
Judge, it was canvassed by Sri. Keshav Sahai, learned Counsel for one of the Petitioners, that words ''criminal Court'' in Section 408 did not
include an Additional Sessions Judge, and hence this provision did not apply to an Additional Sessions Judge. In the reference made in State of
U.P. v. Gyan Chand and Ors. Criminal Misc. Transfer Application No. 747 of 1971 and State v. Gyan Chand, Criminal Misc. Transfer
Application No. 3318 of 1972 it was held by the Division Bench by the order dated 17-9-1 974 that the Additional Sessions Judge was a criminal
Court, and was covered 1 by the provisions of Section 408. But a Sessions Judge, under that Section,'''' had ho power to transfer a part-heard
sessions trial from one Additional Sessions Judge to another. As at present advised, we are in respectful agreement with this view. But since that
question is not involved in the instant cases, we refrain from discussing that question and giving an opinion thereon.
20. Two kinds of cases may be part-heard with a Judge-(i) where the Judge had framed only the charges but had not recorded evidence, and (ii)
where the Judge had heard and recorded evidence either wholly or In part, and his jurisdiction has not ceased in the trial in the manner referred to
above. To the first category of cases,-Section 326 In terms may not apply, and the successor-in-office of that Judge would not be entitled to
continue the hearing of the case from the stage left over by his predecessor. But, at the same time, the Judge who had commenced the proceedings
and framed the charges, being seized of the matter, would be entitled to continue the proceedings since his jurisdiction to deal with, it had not been
terminated. In the aforesaid second category, the Judge would continue to exercise jurisdiction and will dispose it of according to law, and In the
light of the discussion above.
21. For the reasons discussed, Criminal Misc. Transfer Application Nos. 2462/1982, 4811/1982, 4955/1982, 5046/1982, 5442/1982 and
5443/1982 which seek transfer of the cases to the Additional Sessions Judge who had commenced the proceedings, and whose jurisdiction had
not ceased in the matter, deserve to be allowed, while Criminal Misc. Transfer Application Nos. 2015/1982 and 4779/1982 which seek transfer
of the cases to the Additional Sessions Judge who had framed the charges only and whose jurisdiction had ceased by an administrative order
passed by the High Court directing the cases to be tried by another Additional Sessions Judge, fail.
22. Criminal Misc. Transfer Application Nos. 2462/1982, 4811/1982, 4955/1982, 5046/1982, 5442/1982 and 544/1982 are allowed. Let
Sessions Trial No. 1 of 1974 ( State v. Mool Chandra), be transferred from the X Additional Sessions Judge to VII Additional Sessions Judge,
Sri. P.C. Agrawal. Sessions trial No. 184 of 1979. (State v. Astafa and Ors.) and the connected Sessions Trial No. 16 of 1982 (State v. Abdul
Rashid), are directed to be transferred from v. Additional Sessions Judge, Sri. V.K. Sirkar, to VI Additional Sessions Judge , Sri. J.B. Singh
Sessions trial Nos. 378 of 1980 (state v. Bhola Nath and Anr.) 998 of 1980 (State v. Sarvesh Kumar alias Pappu and Ors.) 487 of 1980 (State
v. Munni Lal and Ors.) and 438 of 1980 (State v. Daya Shankar and Ors.) shall be transferred from I Additional Sessions Judge, Sri. B.P. Singh
to II Additional Sessions Judge, Sri. K.C. Bhargava.
23. Criminal Misc. Transfer Application Nos. 2015/1982 and 4779/1982 are dismissed.
24. The question referred to this Bench does not seem to be involved in Criminal Misc. Transfer Application Nos. 5242/1982 and 5671/1982. Let
Both these transfer petitions be listed before the appropriate Bench.
