Excelsior Correspondent
SRINAGAR, Nov 12: High Court has held that Principal Sessions Judge (PSJ) of a district has no jurisdiction to withdraw/recall a case, in which trial/hearing has commenced before an Additional Sessions Judge (ASJ) as provided in Section 409(2) of CrPC.
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.
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 to pay maintenance of Rs 15,000 per month to the respondent.
Aggrieved of this order, petitioner filed an appeal under Section 29 of DV 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 aggrieved of the same order dated 25.07.2022 passed by Magistrate filed an appeal under Section 29 of DV Act, against the petitioner and 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:
Buttressing the position of law the bench placed reliance on a judgment of J&K High Court in Raghunandan Bakshi and Another Versus Bidi Chand and observed, “recalling of the case by the Sessions Judge has been authorised under the provisions of Section 528 CrPC. (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 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”. With these observations, High Court allowed the transfer petition.
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