ORDER
1. Government Pleader Sri G. Bhavani Singh is directed to take notice.
2. Heard the Counsel for the petitioner and Government Pleader.
3. The petitioner is seeking transfer of S.C. No. 37 of 1999 on the file of the Sessions Judge, Chikmagalur to the Principal District Judge, Mandya, under Section 407 of the Code of Criminal Procedure, 1973 (for short “the Code”), on the ground that the entire evidence has been recorded by the Principal District and Sessions Judge, Chikmagalur and before the 313 statements of accused under Section 313 of the Criminal Procedure Code, could be recorded, the learned Judge has been transferred to Mandya. In order to enable the Judge to appreciate the evidence recorded by him and as also to observe the demeanour of the witnesses, it is necessary that the case should be transferred from the Sessions Court, Chikmagalur to Sessions Court, Mandya. The petitioners submit that the Judge who is under orders of transfer is not inclined to dispose of the matter. Hence, it is expedient and necessary that the case be transferred to the District and Sessions Court, Mandya for disposal in accordance with law. In support of this contention, the petitioner has relied upon two decisions of this Court in State v S. Sampangi Reddy and Others and unreported decision in Putta Sidda v State of Karnataka .
4. Section 407 of the Code, enables this Court to transfer a case from one Court to another Court in the State, on proof of any of the various circumstances enumerated therein or even on other circumstances. It is the case of the petitioners that as the Judge has recorded the entire evidence, besides observing the demeanour of witnesses, it is necessary that the case be transferred to the Sessions Court at Mandya, It needs hardly mention that the power of transfer can be exercised by the Court when, as in this case, it is expedient for the ends of justice. In the instant case, the transfer from one Sessions District to another Sessions District is sought only on the ground that the Judge who recorded the evidence and who has observed the demeanour of witnesses should dispose of the case. It is true that in the circumstances of the case referred to in Sampangi Reddy, supra, the Court thought it fit to exercise its jurisdiction to transfer the case from one Court to another Court in the same place. So is the situation in the other case referred to for the petitioner. Transfer of a case from one Court to another Court solely on the ground that the Judge who recorded the evidence by observing the demeanour of the witness, may be inexpedient, but cumulatively, with other circumstances, it may be availed, in a given case, to effect transfer of a case. It cannot be forgotten that a demeanour of a witness, unless recorded, cannot be availed of to reject or accept evidence and it could be availed of a factor in assessment of evidence. However, demeanour is not a conclusive factor in evidence assessment. If the demeanour of a witness is recorded, it would be available not only to the Judge who recorded the evidence, but also to the successor Judge in assessment of evidence. It is clear that demeanour of a witness/witnesses, observed by a Judge cannot be the sole consideration in determination of expediency for transfer of a case to the Judge who recorded the evidence, when he is transferred in the middle of a trial. Acceptance of such a principle, as of universal application, has its grave administrative difficulties, including an apprehension — unfounded or otherwise — as to the quality of justice that may be rendered in the case. Notwithstanding the fact that the petitioners are willing to take the additional burden of expense of travelling from Chikmagalur to Mandya District, it is neither necessary nor expedient to transfer the case to the Court to which the Judge who recorded the entire evidence is subsequently transferred.
5. Prior to the amendment of Section 326 of the Code, the section applied only to Magistrates and they were enabled to continue the trial from the stage at which his predecessor in office left it. By the amendment of 1978 dated 18th December, 1978 the scope of the provision is enlarged by including Sessions Judges also. Sampangi Reddy’s case, supra, rendered prior to the amendment of 1976 cannot be availed by the petitioners. When Section 326 of the Code enables continuation of the trial of the case by successors Sessions Judge, with an additional safeguard of enabling the Sessions Judge to recall witnesses and examine them further, it cannot be said that there could be any grievance or apprehension of any miscarriage of justice. Even otherwise when the legislative policy is clearly specified by amendment of Section 326 of the Code, as now done, it would not be open to the petitioners to seek transfer of the case solely on the basis of the principle enunciated in Sampangi Reddy’s case, supra. In any event it is inexpedient to transfer
the case for the ends of justice. There are more than one reason as to why such a request should not be granted.
6. The principle that a Judge on transfer should not take up for disposal any matter other than those cases which are posted for judgment is salutory and is in the larger interest of justice to alley any apprehensions in the minds of litigants. To allow transfer of cases on the ground mentioned in this application would leave a message that a litigant can follow a Judge on transfer to his new place for seeking a decision in the case, which is clearly wrong. No Judge has any interest in a case or ought not to have interest in a case, and it would be an embarassment to such a Judge to try and conclude the case which he had commenced in his previous place of posting.
In these circumstances, the transfer of the case sought by the petitioners is misconceived and it is inexpedient to transfer this case as sought. Petition is rejected.