Sessions cases cannot be transferred between courts after charge-framing, Patna High Court says

On the night of 6/7 December 1991, Sheo Janam Giri was allegedly attacked inside his house by Basavan Ahir, Vijay Giri and Dinanath Singh, who were armed with firearms. According to the prosecution, Vijay first fired at the deceased’s thigh, Basavan fired at his upper body, and Dinanath fired at his neck, causing his death. The deceased’s wife, Kalavati Devi, lodged the fardbeyan, but died during the trial and could not be examined as a witness.

The police filed a charge-sheet under Sections 302/34 of the Indian Penal Code and Section 27 of the Arms Act. Although charges had initially been framed by one Sessions Court, the case was subsequently transferred to another Sessions Court for trial. The prosecution examined ten witnesses. The principal evidence consisted of the testimony of P.Ws. 1 and 2, the deceased’s daughters, who claimed to have seen the appellants at the place of occurrence and witnessed Basavan and Dinanath firing at the deceased. The post-mortem examination disclosed three firearm injuries and recovered metallic pellets and cartridge material from the body.

The Trial Court convicted the appellants under Sections 302/34 IPC and Section 27 of the Arms Act and sentenced them to life imprisonment for murder and rigorous imprisonment for three years under the Arms Act, with the sentences to run concurrently. The appellants challenged the conviction, principally contending that the informant, the Investigating Officer and the recording officer had not been examined, the fardbeyan had not been properly proved, and the transfer of the case after framing of charge was irregular.

Whether the transfer of the Sessions case from one Sessions Court to another after framing of charge was legally permissible under the Code of Criminal Procedure?

Whether the conviction under Sections 302/34 IPC could be sustained despite the death of the informant and the non-examination of the Investigating Officer and the recording officer?

Whether the testimonies of P.Ws. 1 and 2, corroborated by the medical evidence, established the appellants’ participation in the murder beyond reasonable doubt?

Whether the conviction under Section 27 of the Arms Act could be sustained in the absence of the sanction contemplated by Section 39 of that Act?

After commitment of a case to the Court of Session under Section 209 Cr.P.C., the Sessions Court must take cognizance under Section 193 Cr.P.C.; the Code does not contemplate administrative transfer of a Sessions case from one Sessions Court to another after framing of charge, although the Court held that this procedural irregularity did not warrant reversal of the conviction in the circumstances of the case.

Sections 302/34 IPC govern murder committed pursuant to common intention. An FIR or fardbeyan is not substantive evidence and may ordinarily be used only to corroborate or contradict its maker’s testimony.

Non-examination of the Investigating Officer is not automatically fatal; it becomes prejudicial where it deprives the accused of a material opportunity to establish contradictions or otherwise causes actual prejudice. Applying Bihari Prasad, Etc. v. State of Bihar, (1996) 2 SCC 317, the Court held that no universal rule requires acquittal merely because the Investigating Officer was not examined.

Section 39 of the Arms Act requires sanction before a prosecution for specified Arms Act offences can be instituted; in its absence, conviction under Section 27 cannot be sustained.

The Court found the evidence of P.Ws. 1 and 2 natural, consistent and reliable. Both witnesses stated that, immediately after hearing the firing and cries, they came to the courtyard, saw the three appellants armed with firearms, and witnessed Basavan and Dinanath firing at the deceased. Their testimony was not materially contradicted in cross-examination.

The medical evidence substantially corroborated their account by establishing three firearm injuries corresponding to the prosecution version. The fact that the witnesses were the deceased’s daughters did not render their evidence unreliable, particularly as they were natural witnesses to an occurrence inside their own house.

The absence of the informant’s testimony did not destroy the prosecution case because the conviction was not founded substantively on the fardbeyan; it rested on the direct ocular evidence of P.Ws. 1 and 2 and the medical evidence.

Similarly, the non-examination of the Investigating Officer caused no material prejudice because the defence did not identify any material contradiction requiring proof through the Investigating Officer, and the prosecution evidence was otherwise found credible.

Although the Court criticised the transfer of the case after framing of charge as lacking statutory sanction, it did not find that the irregularity had caused a failure of justice warranting interference with the conviction.

However, the prosecution had not produced the sanction required under Section 39 of the Arms Act; consequently, the Arms Act conviction could not legally stand.

However, because the mandatory sanction under Section 39 of the Arms Act was absent, the conviction under Section 27 of the Arms Act was set aside. The appellants were acquitted of that charge, and the appeal was partly allowed.