1986 P Cr (PLP)

‑‑‑S. 526‑‑Transfer of case‑‑Can be ordered under S. 526, Criminal Procedure Code, where refusal would entail abuse of process of law and accused has apprehension of not having a fair trial. S. Rashid Ahmed for the State. S. Sarfraz Ahmed, Asstt. A.‑G. for Respondent. Date of hearing: 18th March, 1984. This is a transfer application filed on behalf of the accused praying that the case may be transferred from the Court of Sessions Judge, Nawab Shah to Sessions Judge Hyderabad. The main ground for transfer is that Mr. S. Abdul Rehman who was Sessions Judge, Nawab Shah has recorded the entire evidence and before the argument could be completed he was transferred as Sessions Judge Hyderabad and, therefore, the matter may be transferred for hearing of argument and Judgment by Mr. Abdul Rehman. The only ground stated in the affidavit is that as the learned Sessions Judge Hyderabad had recorded the entire evidence, watched the demeanour of the witnesses and completed the proceeding it would be proper that matter may be transferred to him. In this regard reference can be made to section 350, Cr.P.C. which reads as follows. "

350. Conviction of evidence partly recorded by one Presiding Officer and partly by another. (1) whenever any Sessions 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 Sessions Judge or Magistrate, who has and who exercises such Jurisdiction, the Sessions 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 or he may re‑examine the witnesses and recommence the inquiry or trial:‑ Provided that:‑ (a) Where the conviction was held before a Sessions Judge, the High Court, and (b) Where the conviction was held before a Magistrate the High Court or the Court of Session." May whether there be an appeal or not, set aside any conviction passed on evidence, not wholly recorded by the Sessions Judge or Magistrate before whom the conviction was held, if such Court is of opinion that the accused has been materially prejudiced thereby, and may order a new inquiry or trial.

2. Nothing in this section applied to cases in which proceedings have been stayed under section 346 or in which proceedings have been submitted to a superior Magistrate under section 349.

3. When a case is transferred under the provisions of this Code from one Magistrate to another, the former shall be deemed to cease to exercise jurisdiction therein, and to be succeeded by the latter within the meaning of subsection (1). Now according to law any Sessions Judge who has heard or recorded the evidence in entirety or in part is succeeded by another Sessions Judge then it is left to his discretion either to act upon such evidence or re‑examine the witness or recommence the trial. The object of this provisions seems to avoid delay in trial if the presiding officer is transferred or ceases to have jurisdiction to try the case. Vast discretion has been vested in the succeeding Sessions Judge who after, examining the record may decide to act upon the evidence recorded by B his predecessor or not. The law has given unfettered discretion to the succeeding Sessions Judge which has no doubt to be exercised in accordance with the recognised judicial principles. It is noteworthy that where the Sessions Judge decides to act upon the evidence recorded by his predecessor and convicts and accused, protection has been, C afforded to such accused by proviso to subsection (1) of section

350. After such conviction, whether appeal has been filed or not if the High Court comes to the conclusion that the accused has been material prejudiced by such proceeding it may order for a new trial. This protection by itself suggests that unless by acting .on the evidence recorded by the predecessor Judge the accused is materially prejudiced, perhaps, in objection can be raised by the accused to such a trial or proceeding. Mr. Syed Rashid Ahmed, Advocate for the applicant has contended that as the entire evidence has been recorded by the previous Sessions Judge it would be proper that matter may be transferred to him. As discretion has been vested entirely in the succeeding Sessions Judge to act or not to act on such evidence merely on this allegation of the learned counsel for the applicant, it is not possible to interfere with his discretion which does not seem to have been exercised as yet. The petitioner has not stated any such fact which may lead to the conclusion that serious and material prejudice shall be caused to him. The learned counsel contended that as the previous Sessions Judge has recorded the evidence and observed the demeanour of the witnesses it will be proper if he hears the arguments and pronounces the judgment. The learned counsel has not explained how and in what circumstances the demeanour of tote witnesses was observed and how is it relevant to the decision of the case. A bare statement that prejudice will be caused is not sufficient to establish that material prejudice shall be caused to the petitioner so as to bring this case out of the pale of section 350, Cr.P.C. Under section 526, Cr. P.C. a case can be transferred where refusal will entail abuse of process of law, the accused has apprehension of not having a fair trial, the Court is impartial or such circumstances which are expedients for the ends of justice. It is desirable that a Judge who has proceeded with trial and recorded the evidence should conclude it but in cases where it is not possible unless material prejudice is caused to the accused the law will take its own course as provided by section

350. The transfer application is dismissed. M.Y.H Application dismissed