Allahabad HC Upholds Sessions Judge's Transfer of Trial to Presiding Officer Who Recorded Nine Prosecution Witnesses
A complainant challenged a Sessions Judge's order transferring a trial to follow the Presiding Officer who had recorded nine prosecution witnesses; the Allahabad High Court dismissed the petition, holding that demeanour observation and judicial continuity are valid grounds for an intra-division transfer under Section 408 CrPC.
Justice Subhash Vidyarthi, sitting singly at the Lucknow Bench of the High Court of Judicature at Allahabad, dismissed Transfer Application (Criminal) No. 79 of 2026 on 7 July 2026. The applicant-complainant, Satyendra Nath Shukla, had challenged a Sessions Judge's order dated 29 June 2026 that transferred Session Trial No. 2707 of 2024 within the Lucknow Sessions Division so that it would be heard by the same judicial officer who had already recorded the testimony of nine prosecution witnesses. The High Court found no error or illegality in the Sessions Judge's exercise of discretion, held that the transfer order did not defeat the ends of justice, and declined to invoke its inherent powers under Section 482 CrPC to interfere.
The Trial, the Transfer, and the Challenge
Session Trial No. 2707 of 2024 arises out of FIR No. 416 of 2013 registered at Police Station Gomti Nagar, District Lucknow, in the matter of State v. Anshuman Pandey. The trial was proceeding before the Court of Additional Session Judge/Special Judge ATS, Lucknow, presided over by Shri Abhinay Kumar Mishra, HJS. During his tenure at that court, Shri Mishra recorded the testimony of PW-1 to PW-9 — all nine witnesses of fact examined during the prosecution evidence stage.
Shri Mishra was then transferred to the Court of Additional Session Judge, Court No. 4/Special Judge Gangsters Act, Lucknow, a court within the same Sessions Division. Shri Shashwat Pandey, HJS was posted in his place at the Court of Additional Session Judge/Special Judge ATS, Lucknow, and took over the trial from the stage reached by his predecessor. Under Shri Pandey's tenure, the testimony of PW-10 was recorded.
On 14 May 2026, Opposite Party No. 2 filed Criminal Misc. Case No. 783 of 2026 before the Sessions Judge, Lucknow, under Section 408 CrPC, seeking transfer of the trial to the Court of Additional Session Judge, Court No. 5/Special Judge Gangsters Act, Lucknow, where Shri Mishra was then posted. The stated ground was that continuation of the trial before the officer who had heard a substantial part of the matter would advance fair trial, judicial continuity, proper appreciation of evidence, and judicial economy. Reliance was placed on a Division Bench decision of this Court in Punjab Singh v. State of U.P. : 1983 Cr.L.J. 205.
The applicant-complainant was impleaded and opposed the transfer application. He submitted that the transferee court had already recorded the evidence of PW-10, no allegation of bias had been levelled against the presiding officer of that court, prosecution evidence was complete, and the transferee court had jurisdiction to conclude the trial. The Sessions Judge nonetheless allowed the application on 29 June 2026 and directed transfer of the trial to the Court of Additional Session Judge, Court No. 4/Special Judge Gangsters Act — the court actually presided by Shri Mishra at that point.
Shukla then filed Transfer Application (Criminal) No. 79 of 2026 before the High Court under Section 407 CrPC challenging the Sessions Judge's order.
The Legal Issue: Wrong Remedy and the Scope of Section 326 CrPC
The applicant's counsel, Sri Sushil Kumar Singh, pressed two main contentions. First, that Section 326 CrPC specifically provides for the successor judge to act on the evidence recorded by the predecessor and does not mandate that a trial follow a transferred presiding officer to his new court. Second, that Punjab Singh (supra), relied upon by the Sessions Judge, was decided under Section 350 of the Criminal Procedure Code, 1898, which contained provisions absent from Section 326 CrPC, 1973. Reliance was placed on Ranbir Yadav v. State of Bihar : (1995) 4 SCC 392, Bhaskar alias Prabhaskar v. State : (1999) 9 SCC 551, and a coordinate Bench decision in Anil Kumar Agarwal v. State of U.P. : (2015) 89 ACC 723.
Before reaching the merits, the High Court identified a threshold problem with the applicant's choice of remedy. When a Sessions Judge allows a transfer application under Section 408 CrPC, the person aggrieved cannot challenge that order by filing a fresh application under Section 407 CrPC. The proviso to Section 407(2) CrPC permits a High Court application only where the Sessions Judge has rejected a transfer application. The correct remedy against an allowed Section 408 order is the inherent power of the High Court preserved by Section 482 CrPC.
The Court declined to dismiss the petition on this technical ground, however, because detailed submissions on the merits had already been advanced by all parties. It treated the petition as one invoking Section 482 CrPC and proceeded to examine the merits accordingly.
How the Court Reasoned Through Section 326 and the Precedents
Justice Vidyarthi examined the legislative history of Section 326 CrPC at length, drawing on the analysis in Ranbir Yadav. The corresponding provision under the Code of 1898 was Section 350, which — before its 1955 amendment — gave the succeeding Magistrate the option to re-summon witnesses and recommence the inquiry or trial entirely. That option for a de novo retrial was removed by the 1955 amendment, and Section 350 was renumbered Section 326 when the 1973 Code replaced the 1898 Code. The Supreme Court in Ranbir Yadav concluded that the legislature had taken away the accused's right to claim a de novo trial in order to provide for speedy disposal.
The Court accepted that Section 326 CrPC vests jurisdiction in the Court as an institution, not in any individual presiding officer, and that a successor judge has full jurisdiction to act on evidence recorded by the predecessor. This much was common ground between the parties. The Court also accepted that Punjab Singh had been decided under Section 350 of the 1898 Code and that the applicant's arguments on Section 326 were not incorrect as a statement of law.
But the Court held that these arguments were simply beside the point. The Sessions Judge had not transferred the trial on the ground that the transferee court lacked jurisdiction. The Sessions Judge had exercised the discretionary power under Section 408 CrPC — the power to transfer any particular case between courts within the Sessions Division whenever expedient for the ends of justice — and had done so on a different basis entirely: the advantage of demeanour observation and judicial continuity.
On the question of demeanour, the Court was specific. All nine witnesses of fact in the prosecution evidence had deposed before Shri Mishra. Courts are required to give due consideration to the demeanour of witnesses. When a presiding officer who had the advantage of watching the demeanour of nine prosecution witnesses was posted to another court within the same Sessions Division, and the Sessions Judge found it appropriate to transfer the trial to follow that officer, the Sessions Judge had not committed any error or illegality.
On the precedents relied upon by the applicant, the Court found them inapplicable. In Ranbir Yadav, the transfer had been challenged on the ground that the High Court lacked power to transfer the case by administrative order once trial had commenced; the Supreme Court upheld the transfer on the basis of the High Court's supervisory jurisdiction under Article 227 of the Constitution. In Bhaskar alias Prabhaskar, the Supreme Court had explained the policy rationale for the legislative shift from mandatory re-examination to discretionary further examination of already-deposed witnesses. In Anil Kumar Agarwal, the coordinate Bench had dismissed a transfer application on the ground that the transferee court had jurisdiction — a scenario where the transfer was being sought, not opposed. None of those decisions addressed the question of whether a Sessions Judge could, in exercise of Section 408 discretion, transfer a trial to restore judicial continuity.
The Court also examined the report submitted by Shri Abhinay Kumar Mishra himself. He had confirmed that while presiding over the Court of Additional Session Judge/Special Judge ATS, he had recorded the testimony of some prosecution witnesses, prosecution evidence had not been completed at the time of his transfer, and he had not heard submissions of the parties. The Sessions Judge had taken that report into account before passing the transfer order.
The Section 482 Standard and Why the Order Survived It
The High Court stated the applicable standard plainly. An order passed by a Sessions Judge under Section 408 CrPC after hearing the parties can be interfered with in exercise of Section 482 inherent power only if it occasions an abuse of the process of law or defeats the ends of justice. It is not a power of appellate or revisional review.
Applying that standard, the Court found that both the original court (the Court of Additional Session Judge/Special Judge ATS) and the transferee court (the Court of Additional Session Judge, Court No. 4/Special Judge Gangsters Act) had jurisdiction to decide the trial. Where two courts in the same Sessions Division both have jurisdiction over a trial, the Sessions Judge has discretion to allocate the trial to either of them. The Sessions Judge had exercised that discretion by reference to judicial economy and the preservation of the demeanour advantage already gained by Shri Mishra, having satisfied himself that the ends of justice would be better served by the transfer. That reasoning was neither perverse nor arbitrary.
The Court added that the impugned transfer order was a speaking order, passed after affording an opportunity of hearing to the parties, including the applicant-complainant who had been impleaded. An order of that character does not, by its nature, amount to an abuse of the process of court. Interfering with it would serve none of the three purposes for which Section 482 inherent power exists: giving effect to an order under the Code, preventing abuse of the process of court, or securing the ends of justice.
The Court specifically recorded that the transfer neither prejudiced the applicant's prosecution case — the prosecution evidence had not been completed at the stage of Shri Mishra's earlier transfer — nor removed jurisdiction from the receiving court. The applicant had not alleged any bias against Shri Pandey, the presiding officer of the original court; the objection was purely to the transfer as such.
Outcome
Justice Subhash Vidyarthi dismissed Transfer Application (Criminal) No. 79 of 2026 on 7 July 2026, finding no good ground to interfere with the Sessions Judge's order dated 29 June 2026 in Transfer Application/Criminal Misc. Case No. 783 of 2026. Session Trial No. 2707 of 2024 arising out of Crime No. 416 of 2013, Police Station Gomti Nagar, Lucknow, will therefore continue before the Court of Additional Session Judge, Court No. 4/Special Judge Gangsters Act, Lucknow, presided by Shri Abhinay Kumar Mishra, HJS. The order is marked as a speaking and reportable order.