Power Of Sessions Judge U/S 409 CrPC To Recall Case Cannot Be Exercised Once Trial Has Commenced Before ASJ: J&K&L High Court

The Jammu and Kashmir and Ladakh High Court on Friday observed that the Principal Sessions Judge of a district has no jurisdiction to withdraw/recall a case, in which trial/hearing has commenced before an Additional Sessions Judge as provided in Section 409 of CrPC. Counsel appearing for the petitioner, argued that from the conduct of the case by the appellate court, firstly, by taking up the case without showing in the Cause List and passing orders when the matter had not been heard and, secondly, that the appeal before another Sessions Court was recalled, despite the fact that the court had already issued notice in the matter, to which the Principal Sessions Judge was not competent, have given the impression to the petitioner that he shall not get fair trial of the case before that court. Respondent No.1 also aggrieved of the same order dated 25.07.2022 passed by Magistrate filed an appeal under Section 29 of D.V.Act, against the petitioner and Mrs. 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 observed: "Hearing in the appeal starts with the issuance of notice before the 2nd Additional Sessions Judge Srinagar, therefore, learned Principal Sessions Judge Srinagar was not having any power or jurisdiction to withdraw or recall the appeal assigned to the court of learned 2nd Additional Sessions Judge Srinagar, therefore, recalling of the order which has been made the basis for transfer of this case, in the considered opinion of this Court has been passed without jurisdiction by the learned Principal Sessions Judge Srinagar", the bench underscored.