B.C. Chakrabarti, J.
1. This revisional application raises a short question as to the exact time when a sessions trial commences. The question arises under the following circumstances.
2. The Chief Judge, City Sessions Court is under the provisions of the City Sessions Courts Act, the Sessions Judge and the other Judges presiding over the other Benches are deemed to be Additional Sessions Judges. A case being committed to the court of the Chief Judge was assigned to Bench VII of that court for disposal by an order dated 9-7-1981/3-8-1981. The learned Judge presiding over that Bench fixed 2-9-1981 for consideration of charge against the accused persons. On the date so fixed the learned Judge after hearing the learned Advocates and considering the documents and other materials was satisfied that a prima facie case against the accused persons under Section 302/34 I.P.C. and under Section 3 of the Explosive Substances Act was made out. Charges were accordingly framed and read over to the accused individually. They pleaded not guilty and claimed to be tried. The learned Judge thereafter fixed 2-11-1981 onwards for examination of witnesses in accordance with the Serial mentioned in his order dated 8-9-1981. Before 2-11-1981. however, the learned Chief Judge withdrew the case to his file and transferred the same to Bench II for disposal. Before the transferee Bench an objection was taken that the withdrawal of the case by the learned Chief Judge and the transfer of the same was bad in law in view of the provisions of Section 409 of the Cr. P. C. which permits transfer of a case before the trial had commenced. The learned Judge presiding over the transferee Bench was of the view that the trial in this case had already commenced with the framing of the charge and the taking of the plea and was therefore doubtful whether the order of transfer was competent or not. But since this was an order made by the learned Chief Judge he felt embarrassed and did not say more. Thereupon the petitioners obtained the present Rule.
3. Mr. Dutt appearing in support of the Rule contends that the trial of a sessions case commences with the framing of a charge and the taking of the plea by the accused as provided in Section 228 of Cr. P. C. In support of this contention Mr. Dutt argued that the charge having been framed and read out to the accused, the accused may plead guilty to the charge and the court may accepting such plea convict the accused. The conviction it is contended cannot be made until the trial commences. In our view also the trial commences with the taking of the plea. That this is so would be evident from the fact that the person convicted on a plea of guilt is entitled to prefer an appeal at least against the sentence. The provision for appeal is contained in Section 374 of the Code. Sub-section (2) of Section 374 provides that any person 'convicted on a trial' held by a Sessions Judge or an Additional Sessions Judge or on a trial held by any other court in which a sentence of imprisonment for more than seven years has been passed against him. may appeal to the High Court. Therefore it follows that if there is a right of appeal against an order of conviction based on a plea of guilt, that right accrues because he has been so convicted on a trial held by the Sessions Judge or the Additional Sessions Judge, as the case may be. It is inconceivable to think that the trial of a sessions case in the case where the accused pleads guilty commences with the plea whereas in the case where the accused claims to be tried the commencement of the trial is deferred to some other date. The commencement in either case must be the same. Therefore, in our view, the trial commences as soon as the charge is framed and plea is taken. In that view of the matter the order of recalling the case after the framing of the charge and the taking of the plea by the accused in this case appears to have been made without jurisdiction. The learned Advocate appearing for the State also supports the view taken by us.
4. However, our attention was drawn to a Bench decision of this Court in the case of Tushar Kanti Banerjee v. State of West Bengal 82 Cal WN 652. In the first blush the decision seems to lay down a principle which may appear to run counter to the view we have taken, but on closer examination it would appear that it really does not purport to do so. In para 17 of the decision it is observed as follows:
The words 'claims to be tried' in Sub-section (2) of Section 228 and in Section 230 clearly indicate that the trial of the accused commences after the accused refuses to plead guilty or does not plead or claims to be tried. The trial in the Court of Session starts when the Judge proceeds with the taking of evidence and follows the procedure laid flown by Section 231 and the following ones in Chap. XVIII of Cr. P. C. 1973.
Upon reading the judgment it appears to us that their Lordships while making the aforesaid observation wanted to indicate that the trial commences with the taking of the plea and not until then. The subsequent observation that the trial starts when the Sessions Judge proceeds to take evidence and follows the procedure laid down in Section 231 and the following ones in Chap. XVIII of the Code are merely by way of elaboration and elucidation of the main point that the trial commences with the framing of the charge and the taking of the plea and describes the stages that follow. Chap. XVIII of the Code begins with Section 225 and ends with Section 237. Their Lordships certainly did not intend to say that all the stages are to be taken into consideration to find out whether, the trial has commenced or not because Chap. XVIII of the Code starts with the commencement of the trial and ends with the conclusion of the trial and it would be perhaps improper to think that their Lordships by the afore- said observation wanted to indicate that the commencement included the conclusion of the trial as well. Therefore we are inclined to read the judgment to mean that the trial commences with the taking of the plea and not till the stages from Section 231 onwards are completed. That part of the observation was. as we have already indicated, made only to describe the stages to follow the commencement. In that view of the matter, we are in agreement with the view taken be the learned Judge, Bench II against whose order the present Rule was obtained. We find that the order of transfer was not properly made.
5. But in view of the fact that this is a sessions case of the year 1981 committed as far back as in July 1981 and has been pending for nearly two years by now and no evidence has yet been taken, setting aside the order of the learned Chief Judge and directing re-transfer of the case to Bench VII would only mean further delay in the trial. In order to avoid such delay and in the ends of justice we direct in the exercise of our inherent jurisdiction that the trial do proceed in the court where it is now pending even though we find that technically the order of transfer was not correct.
6. The Rule is thus disposed of.
Jitendra Nath Chaudhuri, J.
7. I agree.