S. 409(2) CrPC Puts A Bar On Administrative Power Of A Sessions Judge To Recall A Trial After Its Commencement: Chhattisgarh HC

The Chhattisgarh High Court recently observed that Section 409(2) of the CrPC creates a bar on the administrative power of the Sessions Judge for recalling the sessions trial after the trial of the case has commenced.

The bench of Justice Justice Sanjay K. Agrawal observed thus while allowing a tranfser plea filed by a complainant challenging the order of the Sessions Judge, Bemetara paed on August 10, 2022 withdrawing a Sessions Trial, in which charges were framed, from the Court of 1st Additional Sessions Judge, Bemetara and proceeding to hear the matter.

The bench notef that in the concerned sessions trial case, the hearing had already commenced, as the Additional Sessions Judge had framed charges and therefore, the Sessions Judge stood divested of the administrative jurisdiction in view of the bar contained under Section 409(2) of the CrPC and hence, it was impermissible for him to withdraw/recall the case.

Here it may be noted that Section 409 deals with the withdrawal of cases and appeals by Sessions Judges. Sub-section (1) of Section 409 of the CrPC says that the Sessions Judge has the power to 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.

However, this power is subjected to a rider [subsection (2) of Section 409] which states that such a power can be exercised by the learned Sessions Judge before trial of the case or hearing of the case has commenced before the Additional Sessions Judge.

Meaning thereby, the rider says that once the trial has commenced which includes sessions trial and hearing of the case is commenced, the Sessions Judge has no power and jurisdiction to withdraw the case or recall the case.

Now, in the intant case, the accused persons were charge-sheeted before the Chief Judicial Magistrate, Bemetara and the CJM, by order dated 28-6-2022, committed the case to the Court of Sessions being triable by the Court of Sessions and the Sessions Judge by its order dated 8-7-2022 made it over to the 1st Additional Sessions Judge for hearing and disposal in accordance with law.

Thereafter, the said Court started hearing the case and ultimately, by order dated 8-7-2022, charges were framed against the accused persons and on 18-7- 2022, trial programme was submitted and case for fixed for evidence on 6-9-2022, 7-9-2022, 8-9-2022.

In the meanwhile, on 10-8-2022, exercising power under Section 409(1) of the CrPC, the Sessions Judge withdrew the sessions case / sessions trial from the Court of the 1st Additional Sessions Judge, Bemetara and started hearing the case against which, the instant petition under Section 407 of the CrPC had been preferred by the complainant.

The same was allowed as the Court held that section 409(2) of the CrPC creates a bar on the administrative power of the Sessions Judge for recalling the sessions trial after the trial of the case has commenced.

In this regard, the Court alos relied upon MP High Court's 1998 ruling in the case of Deepchand s/o Laxminarayan and others v. State of M.P and Allahabad HC's 1984 ruling in the case of Radhey Shyam and another v. State of U.P.

In related news, the Jammu and Kashmir and Ladakh High Court in 2022 ruled in the case of Mehboob Ul Hussain Vs Jhasra Parvaiz 2022 LiveLaw (JKL) 210 that the Principal Sessions Judge of a district has no jurisdiction to withdraw/recall a case, in which trial/hearing has commenced before an Additional Sessions Judge as provided in Section 409(2) of CrPC.

Case title - Toman Lal Yadav vs. State of Chhattisgarh and others [Transfer Petition (Cr.) No.35 of 2022]

Case Citation: 2023 LiveLaw (Chh) 3

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