ORDER
R.S. Garg, J.
1. Heard learned counsel for the parties.
2. By this revision application the petitioner/informant, wife of the deceased is asking this Court to revise the order dated 22-1-2002 passed in Cr. Misc. No. 3/2002 passed by the learned Sessions Judge, Sitamarchi transferring the case from the Court of 3rd Additional Sessions Judge to the Court of 1st Additional Sessions Judge.
3. The facts necessary for disposal of the present revision application are that a trial was pending in the Court of 3rd Addl. Sessions Judge, Sitamarhi. After some time the said 3rd Addl. Sessions Judge was transferred but Sri S.B. Singh, 1st Addl. Sessions Judge started officiating as 3rd Addl. Sessions Judge. He officiated as such upto 19th March, 2001. On 20th April, 2001, Sri Rajesh Kumar took charge of the said Court as 3rd Addl. Sessions Judge and the officiating 3rd Addl. Sessions Judge, namely, Sri S.B. Singh was appointed as full fledged 1st Addl. Sessions Judge. While acting as an officiating 3rd Addl. Sessions Judge Sri S.B. Singh had examined number of the witnesses but after 20th April, 2001 till 22nd January, 2002 (when the impugned order was passed), no witness was examined by the new incumbent Sri Rajesh Kumar. It appears that the accused persons filed an application before the Sessions Judge, inter alia, submitting that the case be transferred from the Court of 3rd Addl. Sessions Judge to the Court of 1st Addl. Sessions Judge. The comments of Sri Rajesh Kumar, 3rd Addl. Sessions Judge were called for and he submitted to the Sessions Judge that he would have no objection if the trial is transferred from his Court. From the order dated 22-1-2002 it appears that after receiving he comments/report from 3rd Addl. Sessions Judge but without hearing the counsel for the State or anybody else the prayer made by the accused was allowed. The order dated 22-1-2002 does not say that the counsel for the State was called or he was heard. The petitioner says that transfer of the case from 3rd Addl. Sessions Judge to the Court of 1st Addl. Sessions Judge is bad and illegal because of the bar contained under Section 409(2) of the Code of Criminal Procedure. He also submits that undisputedly there can be no controversies of the fact that the trial was going on in the Court of 3rd Addl. Sessions Judge. He submits that after the new incumbent has taken charge, immediately thereafter no application for transfer was filed but the application was filed almost after about 10 months and the circumstances in which the case has been transferred would speak for itself.
4. Learned counsel for the non-applicants on the other hand submits that the trial was conducted by Sri S.B. Singh as officiating 3rd Addl. Sessions Judge and as the person, who had recorded the evidence, is required to hear and decide the charges in his capacity as the 1st Addl. Sessions Judge, no wrong can be found with the order. He submits that right from 20-4-2001, when Sri S.B. Singh became the 1st Addl. Sessions Judge upto 22-1-2002 not even a single witness was examined, therefore, the transfer of the case from the Court of 3rd Addl. Sessions Judge to the Court of 1st Addl. Sessions Judge was justified. Referring to the proceedings dated 7-3-2002 recorded by this Court it was contended that a fraud was played upon the Court by making wrong statements in obtaining the said orders. He submits that the revision application deserves to be dismissed.
5. For the purpose of this revision application, a reference to Section 409 of the Code of Criminal Procedure is a must. It reads as under:–
“409. Withdrawal of cases and appeals by Sessions Judge.–(1) A Sessions Judge may withdraw any case or appeal fro, 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 of 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.”
6. Sub-section (2) of Section 409, Cr. P.C. says 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. The words “Additional Sessions Judge” though have been used in singular but with the help and assistance of General Clauses Act would be including plurality in it. If there is only one Additional Sessions Judge then the Sessions Judge may call the case from his Court and may decide it himself but if there are more than one Additional Sessions Judge then the Sessions Judge would have powers to withdraw the case from one Additional Sessions Judge to his own Court or withdraw and transfer to other Court.
7. In the hierarchy of the system the Sessions Judge may withdraw the case but when there are more than one Additional Sessions Judge then the Additional Sessions Judge is known by the Court which he occupies and the number which he bears. I am saying this in details because the question of the numbers would assume importance in the present matter. Undisputedly no trial was conducted by the 1st Addl. Sessions Judge Sri S. B. Singh. The trial was conducted in the Court of the 3rd Additional Sessions Judge Sri S. B. Singh. In this judicial system no Judge has a right to retain any particular case in his Court. So long as Sri S.B. Singh was officiating or holding the office of the 3rd Addl. Sessions Judge, he was entitled to conduct the trial as 3rd Addl. Sessions Judge. After his transfer from that Court he would have no right nor would have the seisin of the matter because he is no more the 3rd Addl. Sessions Judge. In the present matter Sri Rajesh Kumar came and joined as 3rd Addl. Sessions Judge. The trial was not being conducted before Sri S.B. Singh. It was being conducted before the 3rd Addl. Sessions Judge. When the 3rd Addl. Sessions Judge was conducting the trial and thereafter the 3rd Addl. Sessions Judge came then it was the right of the 3rd Addl. Sessions Judge to proceed further with the trial. Simply because somebody officiating as 3rd Addl. Sessions Judge recorded certain statements and thereafter he became 1st Addl. Sessions Judge, the case could not be transferred from the Court of 3rd Addl. Sessions Judge to the Court of 1st Addl. Sessions Judge.
8. It is also necessary to note that for a period of more than 10 months the accused persons knowing well that Sri S.B. Singh is available in the same Sessions did not make an application for transfer of the case from the Court of 3rd Addl. Sessions Judge to the Court of 1st Addl. Sessions Judge. Few days before 22-1-2002 they made an application to the Court of the Sessions Judge.
9. On 10-1-2002 the 3rd Addl. Sessions Judge was to hear some arguments but the case was adjourned to 23-1-2002. It appears that in the meanwhile the application for transfer was filed. The learned Sessions Judge requisitioned the records under his Memo dated 18-1-2002. The records were sent to the Sessions Judge immediately on the same day. On 22-1-2002 the order for transfer of the case was passed.
10. From the records it would further appear that an application was filed by the learned Public Prosecutor on 10-1-2002 for recalling of the Investigating Officer. A reply was filed and the arguments were to be heard on 23-1-2002. From this it would clearly, appear that upto 23-1-2002 the prosecution evidence was not closed. From the proceedings dated 23-1-2002 it would clearly appear that the learned Public Prosecutor pressed the petition to recall the Investigating Officer. The application was opposed and was rejected. In view of the said rejection the Public Prosecutor closed the case of the prosecution.
11. From the above narration it would clearly appear that on or before 23-1-2002 the prosecution had a right to lead further evidence.
12. Section 409 Sub-section (2) of the Code of Criminal Procedure provides that at any time before the trial of the case the hearing of the appeal has commenced……….. to any Additional Sessions Judge. The right, power and jurisdiction vested in a Sessions Judge can be exercised by him before the trial of the case or the hearing of the appeal has commenced. Once the trial commences the Sessions Judge would have no right or jurisdiction much less the authority to transfer the case from the Court of one Addl. Sessions Judge to the Court of another Addl. Sessions Judge or to his own Court. In the present case the trial was conducted in the Court of 3rd Addl. Sessions Judge, It would be too much to personify a Judge as a Court. It cannot be argued that trial was conducted before Sri S.B. Singh, therefore it could be finally decided by him. If that argument is accepted, it would lead to judicial anarchism. A Court, whoever may be the Presiding Officer, is to be treated as a Court of the Addl. Sessions Judge for the purposes of Section 409, Cr.P.C.
13. The only argument on which the case was transferred was that number of the witnesses were examined by Sri S.B. Singh, therefore, the case be transferred to his Court, in the opinion of this Court, neither such a request was permissible under the law nor on foundation of such request, the transfer of the case could be allowed. A transfer of the case can be made if the necessary foundation is available. It is not that a transfer is made just for the sake of asking or to satisfy the whims of a particular party. In the present matter the transfer of the case speaks bad specially when the accused persons are running from pillar to post for getting their case decided by a particular Judge only. If that is the approach of the accused persons it would not be desirable that the case should be heard by a particular Judge of the choice of the accused persons. These observations are not meant to lower down the reputation of the learned 1st Addl. Sessions Judge Sri S.B. Singh but are necessitated in view of the conduct of the accused persons.
14. If a case cannot be transferred because the trial has commenced then exercise of the said jurisdiction by the Sessions Judge would be bad. It appears from the proceedings dated 22-1-2002 that the learned Sessions Judge treated the transfer application to be a private affair between the accused at one side and the Court on the other. From the proceedings dated 22-1-2002 it does not appear that the Public Prosecutor was called and heard but simply appears that the comments of the 3rd Addl. Sessions Judge were called for, who simply wrote to the Sessions Judge that he would have no objection in transfer of the case.
15. It is trite law that even if a Judge says that a case may be transferred, in view of the transfer application, the case cannot be transferred. A case can be transferred on the request of a Judge only if for reasons personal to him, he cannot hear and decide and he has some interest in it or finds some difficulty or a reason akin to it. Simply on an application the case cannot be transferred on a no objection from another Court. The manner in which the case has been transferred from the Court of the 3rd Addl. Sessions Judge to the Court of the 1st Addl. Sessions Judge cannot be approved by this Court.
16. The order dated 22-1-2002 is quashed. The Sessions Judge is hereby directed to issue immediate direction to the 1st Addl. Sessions Judge to produce the records of the trial before him so that the records are transmitted to the Court of 3rd Addl. Sessions Judge. The present applicant may make an application to the Sessions Judge informing about the order of this Court.