KRISHNA MURTHY @ MURTHY vs STATE OF KARNATAKA
- Court
- Karnataka High Court
1
R
Reserved on : 25.08.2026
Pronounced on : 02.09.2026
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
ND
DATED THIS THE 02 DAY OF SEPTEMBER, 2026
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
WRIT PETITION No.21332 OF 2026 (GM - RES)
BETWEEN:
KRISHNA MURTHY @ MURTHY
S/O VENKATESH
AGED ABOUT 49 YEARS
RESIDING AT NO. 817,
TH RD
8 'C' MAIN ROAD, 3 BLOCK,
RD
3 STAGE, BASAVESHWARA NAGAR,
BENGALURU.
... PETITIONER
(BY SRI HASHMATH PASHA, SR.ADVOCATE FOR
SRI KARIAPPA N., ADVOCATE)
AND:
1 . STATE OF KARNATAKA
Digitally
signed by
CHETAN B C
Location:
High Court
of Karnataka
BY KAMAKSHIPALYA POLICE STATION,
BENGALURU
(REPRESENTED BY LD SPP
HIGH COURT OF KARNATAKA)
2 . THE REGISTRAR GENERAL
HIGH COURT OF KARNATAKA,
BENGALURU.
3 . DEPUTY REGISTRAR
CITY CIVIL AND SESSIONS COURT
BENGALURU CITY.
... RESPONDENTS
2
(BY SRI B.N.JAGADEESHA, SPP-I FOR R-1;
SRI M.A.SUBRAMANI, ADVOCATE FOR R-2 AND R-3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA READ WITH SECTION 528 OF
BNSS, PRAYING TO QUASH THE NOTIFICATION DATED 20-5-2026
UNDER REFERRENCE NO.ADM-1 (A) 340/2026 AS PER ANNEXURE-A
ISSUED BY R-3, AS ILLEGAL AND ABUSE OF POWER; 2.
CONSEQUENTLY, ISSUE WRIT OF MANDAMUS DIRECTING THE
RESPONDENTS TO RE-TRANSFER THE SESSIONS CASE
NO.824/2013 NOW PENDING ON THE FILE OF HON'BLE LVIII
ADDITIONAL CITY CIVIL AND SESSIONS CASE, BANGALORE CITY
TO ORIGINAL COURT OF HON'BLE LXI ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, BANGALORE CITY, WHERE TRIAL WAS
CONDUCTED, AS PER ANNEXURE-'B' AND THEN TO DISPOSE OF
THE CASE IN ACCORDANCE WITH LAW IN THE INTEREST OF
JUSTICE.
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 25.08.2026, COMING ON FOR PRONOUNCEMENT
THIS DAY, THE COURT MADE THE FOLLOWING:-
3
CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CAV ORDER
The petitioner - accused is before this Court seeking the
following prayer:
(1) "Quash the Notification dated 20-05-2026 under
reference No.ADM-1 (A) 340/2026 as per Annexure-A
issued by respondent No.3 as illegal and abuse of power.
(2) Consequently, issue writ of mandamus directing the
respondents to re-transfer the Sessions Case No.824/
2013 now pending on the file of Hon’ble LVIII Additional
City Civil and Sessions Judge, Bangalore City to original
Court of Hon’ble LXI Additional City Civil and Sessions
Jude, Bangalore City where trial was conducted, as per
Annexure-B and then to dispose of the case in accordance
with law in the interest of justice.
(3) And to grant such other relief or reliefs as this Hon’ble
Court deems fit to grant in the facts and circumstances of
the case in the interest of justice.”
2. Heard Sri Hasmath Pasha, learned senior counsel appearing
for the petitioner, Sri B.N. Jagadeesha, learned State Public
Prosecutor-1 appearing for respondent No.1 and
Sri M.A. Subramani, learned counsel appearing for respondent
Nos.2 and 3.
3. Facts, in brief, germane are as follows: -
The petitioner/accused is prosecuted for an offence punishable
under Section 302 of the IPC – murder in S.C.No.824 of 2013 and
was facing trial before the LXI Additional City Civil and Sessions
4
Judge, Bengaluru City. During the trial, the prosecution had
examined in all 20 witnesses - PW-1 to PW-20; PW-20 being the
Investigating Officer. His evidence also stood completed in the said
proceedings.
4. When things stood thus, a Notification comes to be issued
on 20-05-2026 transferring the trial from the Court of LXI Additional
City Civil and Sessions Judge, Bengaluru City to the Court of LVIII
Additional City Civil and Sessions Judge, Bengaluru City. The
transfer of pending trial in S.C.No.824 of 2013 by the subject
Notification is what has driven the petitioner to this Court in the
subject petition.
5. The learned senior counsel Sri Hasmath Pasha, submits
that the entire trial of recording evidence is conducted before the
Court of LXI Additional City Civil and Sessions Judge, Bengaluru City
and the learned Judge who recorded evidence is still in the same
Court. It is his contention that the learned Judge who recorded the
evidence is the only person who can dispose of the subject case as
the learned Judge had the opportunity of observing the demeanour
of witnesses. The case is at the fag end of trial and was to be
posted for recording of statement under Section 313 of the Cr.P.C.
The impugned notification causes serious prejudice to the petitioner
5
as trial was at its fag end and it would result in violation of justice.
He would contend that the Notification is issued without considering
the mandate of Sections 326, 408 and 409 of the Cr.P.C. Therefore,
the notification is illegal. Learned senior counsel would further
submit that in terms of Section 326 of the Cr.P.C., a Judge or a
Magistrate who has heard and recorded whole or part of the
evidence should dispose of the same and if he ceased to be in
office, the succeeding Judge/Magistrate has to continue the trial.
Transfer of a case from one Court to another is not permissible. He
would further contend that under Section 409(2) of the Cr.P.C, the
Sessions Judge has no authority to withdraw the case from the
Additional Sessions Judge as is done in the impugned Notification
when trial has begun. Learned senior counsel would seek to place
reliance on the judgment of the Division Bench of this Court in the
case of AMRITHAPPA v. STATE OF KARNATAKA reported in
1981 SCC OnLine Kar 197 .
6. The learned State Public Prosecutor – 1 on the other hand
would contend that administrative action of transfer of cases or
bifurcation of cases cannot be challenged by an accused. There is
no prejudice caused. The entire material will be analyzed by the
Court to which it is assigned and proceed with the case from the
stage at which it stands. It is not a case where the trial would
6
commence from the beginning. Therefore, no prejudice is caused in
assignment of case to a particular Court on certain administrative
reasons.
nd
7. The learned counsel Sri M.A. Subramani appearing for 2
rd
and 3 respondents would vehemently refute the submissions of
the learned senior counsel for the petitioner by seeking to place
reliance upon what went into the decision making for transfer of
cases within the Courts at Bangalore and re-allocation of police
stations to the District and Sessions Judge to transfer cases
between the Courts. The learned counsel would submit that power
is exercised in accordance with law and the accused who is facing
trial cannot choose a particular Court that it should be tried only
before the said Court. He would seek dismissal of the petition.
8. I have given my anxious consideration to the submissions
made by the respective learned counsel and have perused the
material on record.
9. The afore-narrated facts lie in a narrow compass. What
drives the petitioner to this Court is the impugned Notification dated
20-05-2026 issued by the Principal City Civil and Sessions Judge,
Bengaluru. The notification reads as follows:
“No.ADM-I(A) 340/2026 Office of the
City Civil Court, Bengaluru
7
Dated: 20-05-2026.
N O T I F I C A T I O N
Sub: Re-allocation of Police Stations to District & Sessions
Judge Courts in Bengaluru City – reg.
Ref: 1. Letter No. C¥ÀgÀ-¹¦ / C¥ÀgÁzsÀ/¹© /2025 dated 05-05-2025 of
the Commissioner of Police No.1, Infantry Road,
Bengaluru City.
2. Letter No.ROC.GOB-II 64(2)/2025 dated 13-05-2025
of the Hon’ble High Court of Karnataka, Bengaluru.
3. Letter No.PPS(CCC)613/2025 dated 26-09-2025 of the
Hon’ble Principal City Civil and Sessions Judge,
Bengaluru.
4. Letter No.ROC GOBII 64(2)/2025 dated 05-01-2026 of
the Hon’ble High Court of Karnataka.
5. Letter No.PPS(CCC)17/2026 dated 12-01-2026 of the
Hon’ble Principal City Civil and Sessions Judge,
Bengaluru.
6. Letter No.ROC GOBII 64(2)/2025 dated 31-01-2026 of
the Hon’ble High Court of Karnataka, Bengaluru Letter
No.ROC GOBII 64(2)/2025 dated 31-01-2026 of the
Hon’ble High Court of Karnataka, Bengaluru.
7. Letter No.PPS(CCC) 181/2026 dated 02-05-2026 of
the Hon’ble Principal City Civil and Sessions Judge,
Bengaluru.
8. Letter No.ROC GOBII 64(2)/2025 dated 11-05-2026 of
the Hon’ble High Court of Karnataka, Bengaluru.
-0-
As per the direction of the Hon’ble High Court of
Karnataka, Bengaluru vide letter cited at reference No.8,
and in exercise of powers conferred under Section 408,
409 of CrPC/448, 449 of BNSS, the Notification with
regard to Re-allocation of Police Stations and Sub-
Divisions to the District & Sessions Judge Courts as per
Revised Annexure-A is issued in the best interest of
Advocate community, Police and litigant public which
helps in proper administration and dispensation of
justice .
8
This Notification shall come into effect from 01.06.2026
and this Notification itself shall be construed to be the notice to
the litigant public and their advocates and Senior PP/PP with
respect to transfer of cases. The transferor Courts shall notify
the next date of hearing in respect of the cases transferred.
Further all the Criminal Miscellaneous Petitions arising out
of the Sessions cases as on 01-06-2026 pertaining to said Police
Stations shall stand transferred to the newly allocated courts as
per Revised Annexure-A.
Further, it is hereby informed that the Re-allocation of
Police Stations to District and Sessions Judge Courts in
Bengaluru City as per revised Annexure-A is enclosed herewith.
It is also clarified that permission is also accorded
to the concerned courts to retain and dispose of the
matters in accordance with law, wherever the cases are
already posted for recording the statement of the accused
under Section 313 of Cr.P.C/Section 351 of BNSS, Final
Arguments or Reserved for Judgment and it is further
informed that Re-allocation of Police Stations are
restricted to the trial of sessions cases.
By order of the Prl. City Civil & Sessions Judge,
Sd/- Deputy Registrar,
City Civil Court, Bengaluru.”
(Emphasis added)
The Notification was ordained to come into effect from
01-06-2026 . Its mandate is unequivocal. The notification is
restricted to the trial of sessions cases. The re-allocation, however,
did not operate with an unyielding sweep. It carved out a specific
window of retention by according permission to the concerned
Courts to retain and dispose of those matters which had travelled to
an advanced stage of trial, namely, where the cases were already
posted for recording the statement of the accused under Section
9
313 of the Cr.P.C./Section 351 of the BNSS, for final arguments, or
where the matters had been reserved for judgment. The
unmistakable intendment of the Notification, therefore, is that
transfer is the rule and retention, in the circumstances expressly
delineated therein, is the exception.
10. It therefore becomes imperative to ascertain the precise
stage at which the proceedings against the petitioner stood when
the Notification became operative. The answer need not be
gathered by conjecture, for the order sheet maintained by the
concerned Court speaks for itself. The relevant order sheet
maintained as on the date of the notification reads as follows:
“19-06-2026
State by P.P.
Accused – H.P.
For W/S to PW-20 In view of the Notification No.
ADM-i(A)340/2026 dated 20-05-
2026 of Registrar, City Civil
Court, Bengaluru as per the re-
allocation of Police stations to
the District and Sessions Judge
Courts, this case re-allotted to
CCH-59 for disposal in
accordance with law.
Sd/- C/C LIX ACC&SJ,
BENGALURU
19-06-2026
… … As per the Notification No. ADM-
i(A)340/2026 dated 20-05-2026
relating to Re-allocation of Police
Stations to District & Sessions
10
Judge Courts in Bangalore City,
this case is transferred to this
Court.
Case called out.
Accused present
Evidence by 14-07-2026.
Sd/- 19/6
LVIII Addl.C.C. & SJ,
Bengaluru”
The afore-quoted order sheet leaves little room for ambiguity. The
trial was still at the stage of securing the presence of PW-20, the
Investigating Officer , for recording his evidence. The evidentiary
curtain had, therefore, not yet fallen. The proceedings had not even
reached the statutory stage of examination of the accused under
Section 313 of the Cr.P.C., much less crossed it and proceeded to
final arguments or reserved for judgment. Thus, on the date when
the Notification took effect, the case of the petitioner did not fall
within any of the carefully carved-out exceptions permitting
retention by the erstwhile Court.
11. Before considering the law on the issue, I deem it
appropriate to notice the relevant provisions. They read as follows:
"365. Conviction or commitment on evidence partly
recorded by one 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 any
inquiry or a 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
11
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
the 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) When a case is transferred under the provisions
of this Sanhita from 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 under Section 361
or in which proceedings have been submitted to a superior
Magistrate under Section 364.
…. …. ….
448. Power of Sessions Judge to transfer cases and
appeals.—(1) Whenever it is made to appear to a
Sessions Judge that an order under this sub-section is
expedient for the ends of justice, he may order that any
particular case be transferred from one Criminal Court to
another Criminal Court in his sessions division.
(2) The Sessions Judge may act either on the report
of the lower Court, or on the application of a party
interested, or on his own initiative.
(3) The provisions of sub-sections (3), (4), (5), (6), (7)
and (9) of Section 447 shall apply in relation to an application to
the Sessions Judge for an order under sub-section (1) as they
apply in relation to an application to the High Court for an order
under sub-section (1) of Section 447, except that sub-section
(7) of that section shall so apply as if for the word “sum”
occurring therein, the words “sum not exceeding ten thousand
rupees” were substituted.
449. Withdrawal of cases and appeals by Sessions
Judges.—(1) A Sessions Judge may withdraw any case or
appeal from, or recall any case or appeal which he has
made over to a Chief Judicial Magistrate subordinate to
him.
12
(2) At any time before the trial of the case or 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 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 Sanhita to
another Court for trial or hearing, as the case may be.”
11.1. Section 365 of the BNSS is the statutory successor to
Section 326 of the Cr.P.C. The provision assumes significance in the
controversy at hand, for it deals with the consequence that follows
when a criminal proceeding passes from the hands of one Presiding
Officer to another. It mandates that where a case is transferred
under the provisions of the BNSS from one Judge to another Judge
or from one Magistrate to another Magistrate, the former shall be
deemed to have ceased to exercise jurisdiction therein and to have
been succeeded by the latter within the meaning of sub-section (1).
The statutory fiction is thus complete: once a lawful transfer
takes place, the transferee Judge steps into the shoes of the
transferor Judge and the proceeding does not perish merely
because the hand that commenced the trial is not the hand
that would conclude it. The law ensures continuity of the
proceeding notwithstanding change of the Presiding Officer.
13
11.2. Section 448 of the BNSS, the statutory successor to
Section 408 of the Cr.P.C., clothes the Sessions Judge with the
power of transfer of cases and appeals. The power may be
exercised whenever it is made to appear that an order of transfer is
expedient for the ends of justice. It may be invoked on the report of
the lower Court, on an application by an interested party, or on the
Sessions Judge's own initiative.
11.3. Section 449 of the BNSS, corresponding to Section 409
of the Cr.P.C., operates in a different but cognate field. It confers
power upon the Sessions Judge to withdraw any case or appeal
from, or recall any case or appeal which has been made over by
him to, the appropriate subordinate Court and thereafter deal with it
in the manner contemplated by law. Sub-section (2) of Section 449
of the BNSS would hold that the case may be transferred prior to
the commencement of trial.
12. What assumes importance is that Section 448 of the
BNSS does not, in terms, erect a statutory embargo against
transfer merely because the trial has commenced .
Commencement of trial is not employed by the provision as a point
beyond which the power of transfer evaporates. The power
undoubtedly has to be exercised with circumspection, for an
indiscriminate shifting of trials from Court to Court after evidence
14
has commenced may occasion inconvenience to witnesses, delay
adjudication and unsettle the orderly administration of criminal
justice. It is for this reason that Courts, in several circumstances,
have frowned upon transfer of proceedings after a trial has
substantially progressed. But judicial circumspection in the exercise
of a power cannot be readily elevated into a statutory prohibition
against its very existence.
13. The scheme of the BNSS, in fact, points in the opposite
direction. If every transfer after commencement of trial were
impermissible, the Legislature would scarcely have found it
necessary to enact Section 365 of the BNSS or its statutory
predecessor – Section 326 of the Cr.P.C. and expressly declare the
consequence of a transfer from one Judge to another. Section 365
of the BNSS is the legislative bridge between the Court which
begins the trial and the Court which, upon a lawful transfer,
may be called upon to carry it forward. The change of forum
does not wipe the slate clean; nor does it compel the criminal
process to retrace every step already lawfully taken, which is
subject, of course, to the limitations engrafted in the statute. The
successor Court inherits the proceeding at the stage at which its
predecessor leaves it.
15
14. Section 449 of the BNSS reinforces this statutory
architecture by recognising the authority of the Sessions Judge, for
reasons germane to the administration of criminal justice, to recall a
case made over to a subordinate Court and to place it before
another competent Court. Therefore, the mere fact that evidence
has commenced cannot, by itself, become an impregnable
wall against transfer , unless such a prohibition is demonstrable
either from the text of the statute or from a binding exposition of
law.
15. It therefore becomes necessary to examine the
precedents which have considered the contours of these powers,
particularly those which have dealt with transfer or recall after
commencement or substantial progress of trial, to discern whether
the principle emerging therefrom is one of absence of jurisdiction
to transfer , or merely one of restraint in the exercise of an
otherwise available jurisdiction . The distinction is subtle, but
decisive. It becomes apposite to notice the law laid down in this
regard.
16
15.1. The Apex Court in the case of NITINBHAI
1
SAEVATILAL SHAH v. MANUBHAI MANJIBHAI PANCHAL , has
held as follows:
“…. …. ….
10. Section 326 of the Code deals with the
procedure to be followed when any Magistrate after
having heard and recorded the whole or any part of the
evidence in an enquiry or a trial, ceases to exercise
jurisdiction therein and is succeeded by another
Magistrate who exercises such jurisdiction.
11. Section 326 of the Code reads as under:
“ 326. Conviction or commitment on evidence
partly recorded by one 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 a 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
resummon 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) When a case is transferred under the
provisions of this Code from 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
under Section 322 or in which proceedings have been
submitted to a superior Magistrate under Section 325.”
1
(2011) 9 SCC 638.
17
12. Section 326 is part of the general provisions as to
inquiries and trials contained in Chapter XXIV of the Code. It is
one of the important principles of criminal law that the
Judge who hears and records the entire evidence must
give judgment. Section 326 is an exception to the rule
that only a person who has heard the evidence in the case
is competent to decide whether the accused is innocent or
guilty. The section is intended to meet the case of transfers of
Magistrates from one place to another and to prevent the
necessity of trying from the beginning all cases which may be
part-heard at the time of such transfer. Section 326 empowers
the succeeding Magistrate to pass sentence or to proceed with
the case from the stage it was stopped by his preceding
Magistrate. Under Section 326(1), the successor Magistrate can
act on the evidence recorded by his predecessor either in whole
or in part. If he is of the opinion that any further examination is
required, he may recall that witness and examine him, but there
is no need of a retrial.
13. In fact, Section 326 deals with part-heard cases,
when one Magistrate who has partly heard the case is
succeeded by another Magistrate either because the first
Magistrate is transferred and is succeeded by another, or
because the case is transferred from one Magistrate to
another Magistrate. The rule mentioned in Section 326 is
that the second Magistrate need not rehear the whole
case and he can start from the stage the first Magistrate
left it. ”
The Apex Court holds that Section 326 of the Cr.P.C. constitutes a
statutory exception to the ordinarily accepted rule that the Judge
who hears the evidence should be the Judge who pronounces upon
the guilt or innocence of the accused. The raison d'être of the
provision is equally unmistakable. It was engrafted to meet
situations where a Magistrate or a Sessions Judge, after recording
the whole or part of the evidence, is transferred or otherwise ceases
to exercise jurisdiction over the proceeding, and to obviate the
wholly unnecessary ritual of commencing the trial de novo merely
18
because the Presiding Officer has changed. The statute thus
preserves the continuity of the trial notwithstanding
discontinuity in the person presiding over the Court.
15.2. The High Court of Allahabad in the case of JITENDRA
2
SINGH v. STATE OF UTTAR PRADESH , has held as follows:
"…. …. ….
5. I do not think, the administrative order could be
challenged before this Court. However, I think, this
ground in itself is sufficient for the District Judge to
transfer the case from the Court because 47 dates were
given for arguments and ten dates were given for the
defence from 10.10.2013 to 12.2.2014.
6. Learned Counsel for the applicant has placed reliance
1
in the case of Malik Ram v. State of U.P. , wherein it has been
decided that if the Additional Sessions judge, who has heard the
case in part, remains in the same district, he should hear and
decide the part heard case and section 407 Cr. P.C. could not be
invoked by the High Court in such cases, but in the case
2
of Radhey Shyam Agarwal v. State of U.P. , it has been,
laid down that the Sessions Judge is empowered under
section 408 Cr. P.C. to transfer a part heard case from the
Court of Additional Sessions Judge to another competent
Court within his Sessions Division if it is expedient in the
interest of justice and the limitations imposed under
section 409(2) Cr. P.C. are not applicable in exercise of
powers of transfer conferred under section 408 Cr. P.C.
7. Thus, the powers of the Sessions Judge to transfer a
part heard case from one Judge to another does not confer by
virtue of any provisions of Code of Criminal Procedure. By no
stretch of imagination, it can be said that the Sessions Judge
has no power to transfer a part heard case. The word “trial” is
not defined in the Code of Criminal Procedure, but trial would
suppose as the proceedings. taken in the Court after charges
have been drawn up including the punishment of the offender
although, in the 1973 Code, the word “inquiry” has been defined
under section 2(g).
2
2016 SCC OnLine All 3352
19
8. The limitations imposed under section 409(2) of
the Code are applicable in exercise of power of transfer
conferred under section 408 of the Code, which is thus
independent judicial power, which is not subject to the
bar imposed by 409(2) Cr. P.C. on the administrative
ground while exercising administrative powers by the
Sessions Judge of recalling the Sessions Trial after the
trial of the case has commenced.
3
9. In Anil Kumar Agarwal v. State of U.P. , it has
been observed that under section 326 Cr. P.C. conviction
of commitment can be done on evidence partly recorded
by one Magistrate and partly by another.
10. Section 326 Cr. P.C. reads as follow:—
“ 326. Conviction or commitment on evidence
partly recorded by one 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 a trial, ceases to exercise
jurisdiction therein and is succeeded by another [Judge
or Magistrate] who has and who ex ercises 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
resummon any such witness, and after such further
examination, cross-examination and re-exarriination, if
any, as he may permit, the witness shall be discharged:
(2) When a case is transferred un der the
provisions of this Code [from one Judge to another Judge
or fromone 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
under section 322 or in which proceedings have been
submitted to a superior Magistrate under section 325.”
11. Learned Counsel for the applicant has submitted that
the learned 1st Additional Sessions Judge must have observed
20
the demeanour of the witnesses, hence he would be in a better
position to decide the matter.
12. I think, the demeanour of a witness cannot be
kept in the mind by a Judge, but it has to be noted on the
statement itself, which can very well be looked into by
the Judge presently trying the trial. Under section 326 Cr.
P.C., the succeeding Judge can act on the evidence
recorded by his predecessor either in whole or in part.
13. The sole ground in the transfer application is that the
case was part heard by the 1st Additional Sessions Judge.
14. Learned Additional Government Advocate while
opposing the transfer application has stated that judicial
discipline demands that for a fair trial of the case, the party
cannot be permitted to pick and choose the Court of his choice.
15. I have no hesitation in stating that the 1st
Additional Sessions Judge, Baghpat kept the case
unnecessarily pending for years. Hence, the Sessions
Judge in his wisdom was perfectly justified in transferring
the case from his Court to the Court of Fast Track Court-
II, Baghpat. The Fast Track Court in the State and even in
country are expected to dispose of case very
expeditiously. This is a ripe case and it is expected that the
Court concerned shall dispose of this case on the date fixed
without granting any unnecessary adjournments to either of the
parties.”
(Emphasis supplied at each instance)
The High Court of Allahabad in terms of the afore-quoted judgment
holds that when a part-heard case is transferred from one Sessions
Judge to another Sessions Judge under Section 408 of the Cr.P.C.,
the limitation under Section 409(2) of the Cr.P.C. would not become
applicable.
16. The aforesaid exposition of law by the Apex Court and the
High Court of Allahabad leaves little room for acceptance of the
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contention that a part-heard criminal case acquires an immutable
attachment to the Presiding Officer who commenced its trial. The
inevitable conclusion is that the power conferred upon the Principal
District and Sessions Judge to transfer or re-allocate cases,
exercised for manifold administrative reasons germane to the
orderly administration of justice, cannot be interdicted merely on
the apprehension that a change of Presiding Officer would, by itself,
occasion prejudice to an accused. There is no immutable
principle of criminal jurisprudence that the Judge who
commences hearing a case must, at all costs and in all
circumstances, be the Judge who concludes it. If that were the
law, the statutory architecture permitting transfer, withdrawal,
recall and succession of criminal proceedings would be rendered
otiose.
17. The Notification itself displays sufficient sensitivity to the
possibility of prejudice. It does not wield the power of re-allocation
with an indiscriminate brush. It consciously carves out three stages
at which a pending proceeding is permitted to remain before the
existing Court: first, where the matter has reached the stage of
recording the statement of the accused under Section 313 of the
Cr.P.C./Section 351 of the BNSS; second, where that stage stands
concluded and the matter has progressed to final arguments; and
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third, where arguments have concluded and the matter stands
reserved for judgment or order. These exceptions are plainly
intended to ensure that proceedings which have crossed the
evidentiary stage and entered the final decisional corridor are not
unnecessarily uprooted from the Court before which they have
substantially matured. The Notification thus strikes a balance
between administrative necessity on the one hand and continuity at
the advanced stages of adjudication on the other.
18. The submission founded upon the maxim “he who hears
must decide” cannot carry the petitioner any further. The principle
has its familiar roots in administrative law and in the requirements
of procedural fairness governing decision-making by administrative
or quasi-judicial authorities. It cannot be bodily transplanted into
criminal adjudication so as to efface an express statutory regime
which recognises succession of Judges and authorises transfer of
proceedings from one competent criminal Court to another. A
principle of administrative law cannot be employed to defeat
an express command of criminal procedure. When the statute
itself contemplates that one Judge may record evidence and
another may, upon lawful succession or transfer, proceed with the
case, the maxim must necessarily yield to the legislative mandate.
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To hold otherwise would be to permit a general principle to devour a
specific statutory provision.
19. In the case at hand, the facts make the position even
clearer. When the re-allocation took effect, the proceeding was at
the stage of securing the presence of PW-20, the Investigating
Officer, and recording his evidence. The evidentiary exercise itself
was yet to conclude. The case had not reached the stage of
examination of the accused under Section 313 of the Cr.P.C.; it had
not travelled to final arguments; and, a fortiori , it had not been
reserved for judgment or order. The petitioner's case, therefore,
falls outside every one of the three protective exceptions expressly
carved out by the Notification. What the petitioner seeks, in
substance, is the creation of a fourth exception —that every part-
heard matter must continue before the same Presiding Officer. Such
an exception is neither found in the Notification nor borne out by
the statutory scheme, and this Court cannot judicially engraft into
an administrative Notification that which its author has consciously
chosen not to incorporate.
20. There is yet another circumstance which cannot be lost
sight of. The petitioner's case has not been singled out, plucked
from one Court and planted before another. The Notification
embodies a general administrative exercise of re-allocation of
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Police Stations amongst the Sessions Courts in Bengaluru
City . The transfer of the petitioner's proceeding is merely a
consequence of that larger re-organisation. There is neither
allegation nor material to demonstrate that the administrative
exercise was designed against the petitioner or that his case was
selectively transferred for any collateral purpose. On the contrary,
rational allocation of cases Police Station-wise amongst competent
Sessions Courts is plainly intended to secure an orderly distribution
of judicial work and, ultimately, expedition in disposal.
21. Administrative decisions concerning distribution, allocation
and re-allocation of judicial business are best left within the domain
of those entrusted with the administration of Courts. Judicial review
undoubtedly remains available, but it does not sit as an appellate
authority over every administrative arrangement concerning
distribution of judicial work. Unless such an exercise is shown to
be infected by arbitrariness, caprice, mala fides , manifest
unreasonableness or demonstrable prejudice forbidden by
law, constitutional jurisdiction cannot be invoked merely
because one litigant would prefer that his proceeding
continue before a particular Presiding Officer.
22. An accused has a right to a fair trial before a
competent and impartial Court; he does not possess a vested
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right to insist upon trial before a particular Judge . The
administrative decision in the case at hand is not shown to be
shrouded in any such vice. It is a general re-allocation founded
upon territorial distribution of Police Stations; it preserves
advanced-stage matters through specifically crafted exceptions; and
the petitioner's proceeding had not reached any of those protected
stages.
23. In that light, neither the transfer nor the Notification can
be tinkered with in exercise of the extraordinary jurisdiction of this
Court under Article 226 of the Constitution of India read with
Section 482 of the Cr.P.C. The challenge must, therefore,
necessarily fail. It is thus dismissed.
Sd/-
(M.NAGAPRASANNA)
JUDGE
NVJ