U/S 409 Cr.P.C a Sessions Judge cannot withdraw or recall any part-heard case or appeal pending before an addl Judge
Allahabad High Court in the case of Smt. Guhar v. Nizam and Anr. reported in 1981 Cri.LJ (NOC) 22. It has been held therein:
Under Section 409, Criminal Procedure Code a Sessions Judge cannot withdraw or recall any case or appeal pending before a Judge, which is part-heard with him. The intention behind the Code seems to be that part-heard cases, as far as possible, should be tried by the Judge before whom the trial had commenced and who was seized of the case.
12. It may be mentioned at this stage that this judgment should not be meant to lay down an absolute principle of law that the Sessions Judge does not enjoy any power whatsoever to recall a case from the file of an Additional Sessions Judge once the trial has commenced. There are cases and cases where the power to recall has to be exercised with respect to part-heard cases. In a given case, a trial before an Additional Sessions Judge might have commenced and the learned Additional Sessions Judge might have been transferred in the midst of the trial and no substitute is appointed in his place for some long duration. In such a situation, the trial cannot be kept in abeyance for an indefinite period more particularly when the accused is or are in custody. Similarly, after the commencement of the trial for certain valid reasons it may not be possible for the concerned Additional Sessions Judge to proceed further with such trial on account of diverse reasons. There might not be an Additional Sessions Judge in that Court. That trial also cannot be allowed to remain in abeyance till the concerned Additional Sessions Judge is either transferred or shifted from that place and a substitute is provided. In a given case, it might take years till such eventuality occurs. If it is a case where the accused is or are in custody, the trial has to be completed as expeditiously as possible. Except in cases of such emergent situations, it is not open to a Sessions Judge to withdraw a part-heard case from an Additional Sessions Judge under Section 409(2) of the Cr. P. C.
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