Krishna Murthy @ Murthy vs State Of Karnataka & Ors.

The petitioner - accused is before this Court seeking the following prayer:

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.

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 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.

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.

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 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.

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 commence from the beginning. Therefore, no prejudice is caused in assignment of case to a particular Court on certain administrative reasons.

The learned counsel Sri M.A. Subramani appearing for 2^nd and 3^rd 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.

I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record.

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:

(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 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.

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:

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.

Before considering the law on the issue, I deem it appropriate to notice the relevant provisions. They read as follows:

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.

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.

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.

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 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.

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.

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.

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.

The Apex Court in the case of NITINBHAI SAEVATILAL SHAH v. MANUBHAI MANJIBHAI PANCHAL^{11.(2011) 9 SCC 638.}, has held as follows:

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 because the Presiding Officer has changed. The statute thus preserves the continuity of the trial notwithstanding discontinuity in the person presiding over the Court.

The High Court of Allahabad in the case of JITENDRA SINGH v. STATE OF UTTAR PRADESH^{22.22016 SCC OnLine All 3352}, has held as follows:

(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.

The aforesaid exposition of law by the Apex Court and the High Court of Allahabad leaves little room for acceptance of the 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.

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 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.

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. To hold otherwise would be to permit a general principle to devour a specific statutory provision.

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.

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 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.

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.

An accused has a right to a fair trial before a competent and impartial Court; he does not possess a vested 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.

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.