Power Of Sessions Judge U/S 409 CrPC To Recall Case Cannot Be Exercised Once Trial Has Commenced Before ASJ: J&K&L High Court

The observations were made by Justice M A Chowdhary while hearing a plea through the medium of which the petitioner sought transfer of two cases from the court of Principal District & Sessions Judge Srinagar to any other court of competent jurisdiction at Srinagar.

Counsel appearing for the petitioner, argued that from the conduct of the case by the appellate court, firstly, by taking up the case without showing in the Cause List and passing orders when the matter had not been heard and, secondly, that the appeal before another Sessions Court was recalled, despite the fact that the court had already issued notice in the matter, to which the Principal Sessions Judge was not competent, have given the impression to the petitioner that he shall not get fair trial of the case before that court.

The facts in the instant case were that a complaint was filed by respondent in terms of Section 12 of the Protection of Women from Domestic Violence Act 2005 before the court of Magistrate Srinagar, who vide order dated 25.07.2022, directed the petitioner herein to pay maintenance of Rs.15,000/- per month to the respondent.

Aggrieved of this order, petitioner herein filed an appeal under Section 29 of D.V.Act before the court of Principal District & Sessions Judge Srinagar, which was transferred to the court of 2nd Additional District Judge Srinagar for adjudication. Respondent No.1 also aggrieved of the same order dated 25.07.2022 passed by Magistrate filed an appeal under Section 29 of D.V.Act, against the petitioner and Mrs. Tahira Begum, who was arrayed as proforma respondent, before the court of Principal Sessions Judge Srinagar, which was retained by him in his own court.

Subsequently the Principal Sessions Judge Srinagar also recalled the appeal assigned to the court of 2nd Additional Sessions Judge. It was inter alia because of this that the petitioner sought the transfer of the cases to any other appropriate court.

The moot question that sought Adjudication from the bench was as to whether the Principal Sessions Judge, once assigning the case to the court of Additional Sessions Judge, when the notice had already been issued in the matter, is competent or having jurisdiction, to withdraw the case from that court.

Adjudicating upon the matter, Justice Chowdhary held that under Section 409 of CrPC, the Sessions Judge is devoid of power to recall those cases of which trial or hearing has began before the court of Additional Sessions Judge. It observed:

"Hearing in the appeal starts with the issuance of notice before the 2nd Additional Sessions Judge Srinagar, therefore, learned Principal Sessions Judge Srinagar was not having any power or jurisdiction to withdraw or recall the appeal assigned to the court of learned 2nd Additional Sessions Judge Srinagar, therefore, recalling of the order which has been made the basis for transfer of this case, in the considered opinion of this Court has been passed without jurisdiction by the learned Principal Sessions Judge Srinagar", the bench underscored.

Buttressing the said position of law the bench placed reliance on a Judgement of J&K&L High Court in Raghunandan Bakshi & Anr. Vs. Bidi Chand reported as 1997 KLJ 98 wherein J&K&L High Court observed,

"Recalling of the case by the Sessions Judge has been authorised under the provisions of Section 528 Cr.P.C. (akin to Section 409 of Central CrPC extended to the UTs of J&K and Ladakh) from the Court of Additional Sessions Judge only in case of trial of cases or in respect of appeals, but before such trial begins or hearing of the appeal begins. In case the learned Additional Sessions Judge starts with the trial of the case or hearing of the appeal, the Sessions Judge is devoid of the power of recalling those cases i.e. trial case and appeal case before him".

For the foregoing reasons the transfer petition was allowed by the bench.

Case Title : Mehboob Ul Hussain Vs Jhasra Parvaiz

Citation : 2022 LiveLaw (JKL) 210

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