The occasion was an NDPS acquittal, but nearly half of the 35-page judgment was devoted to something else: the transfer, last month, of 97 part-heard murder and serious-crime cases out of the judge’s court, by the then District Judge, without recorded reasons and days before that judge’s retirement. Holding that a part-heard case cannot be recalled once trial has begun, the judge called the orders ‘without jurisdiction’, and turned to a larger theme, that power without accountability corrodes justice, and asked where a judge himself is to go when he feels wronged.
Muzaffarnagar: Ravi Kumar Diwakar, an Additional District and Sessions Judge in Muzaffarnagar, Uttar Pradesh, has questioned the recall of 97 part-heard murder and other serious-offence cases from his court, holding in a judgment that the orders passed by the then District Judge recalling those cases were “without jurisdiction”.
The observations came in a judgment of September 17, 2026, in which the judge acquitted an accused in a narcotics case. According to the judgment, the cases had been recalled without any reason being assigned and merely thirteen days before the District Judge’s retirement.
The legal objection
Examining Section 409 of the CrPC, which corresponds to Section 449 of the Bharatiya Nagarik Suraksha Sanhita, the judge noted that a Sessions Judge may recall a case made over to an Additional Sessions Judge only before the trial or hearing has commenced. Once the trial has begun and the case has become part-heard, he held, it cannot be recalled. On that basis he found that the orders of August 18, 2026 recalling the 97 part-heard cases from his court were without jurisdiction.
He also questioned the absence of reasons in the orders, as required by Section 412 of the CrPC, noting that the non-speaking orders had merely used the word “recall” without recording why the serious murder cases were being taken away from his court.
Drawing a distinction between the power to recall a case under Section 409 and the power to transfer a case under Section 408, the judge noted that the power of transfer does not necessarily end merely because the trial has commenced, but that, relying on the Supreme Court’s decision in Usmangani AdamBhai Vohra v. State of Gujarat, even that power cannot be exercised in an arbitrary or routine manner; there must be a proper and justifiable basis disclosing a real and reasonable apprehension of failure or miscarriage of justice. He also acknowledged the caution in that decision that trial judges often work under considerable pressure, and that not every judicial mistake, however serious, should be attributed to improper intent.
On power and accountability
The judgment moved from the specific objection to a broader reflection on the rule of law, transparency and accountability. A public servant, the judge observed, should be able to call right as right and wrong as wrong, because the institution such servants represent can lose public confidence if its officers cannot identify or oppose wrongdoing. India follows the rule of law, under which no one is above the law and the country is governed by law rather than by the arbitrary conduct of a public servant.
He wrote:
“A public servant cannot behave like kings and he will have to give reasons for each of his orders, that is, the order should be a speaking order. There should be transparency in the system… In criminal cases, the victim/complainant should also know for what reason the files of serious cases, such as murder cases, have been transferred from one court to another.”
Quoting Lord Acton’s observation that “power tends to corrupt, and absolute power corrupts absolutely”, the judge said that when checks on power disappear, a person may begin to consider himself above law and morality, and that the greatest danger of unbridled power is that it begins to consider itself free from accountability. Real power, he wrote, lies not in controlling others but in understanding the limits of one’s own authority and deciding with fairness.
In one of the judgment’s sharpest lines, he observed:
“The moment a person begins to believe that no question can be raised above his decision, arrogance begins in place of justice. When the possibility of asking questions ends, arrogance begins to make decisions and justice slowly becomes silent.”
It was in this context that he posed the question that has drawn attention: a judge’s work is to do justice, and if injustice is done to that judge, where is he to go?
The question left open, and the acquittal
The judge framed the issue as being not merely whether the administrative power to recall or transfer cases existed, but the basis on which it was exercised. Where a large number of serious cases, particularly under Section 302 IPC, are taken away from one judicial officer while other cases remain before that court, he observed, the administrative reasons and purpose behind the recall should be clear, in the interests of transparency. Before parting with the judgment, he posed a further question: if a Sessions Judge or District Judge passes an administrative order that is without jurisdiction, is the judicial officer concerned legally bound to comply with it?
On the case actually before him, the judge acquitted the accused under Sections 8/20 of the NDPS Act after finding serious deficiencies in the prosecution. Noting that the case had taken nearly ten years to reach judgment, he observed that spending ten years going through the courts is itself a punishment, and invoked the well-known line from the film Damini, “tarikh par tarikh”, in the context of judicial delay.
Why it matters
The episode is unusual because it plays out inside the judiciary rather than between the courts and another branch of the State. A serving trial judge has used a judgment to record, in strong terms, his objection to an administrative order of his own superior on the sessions establishment, which places on the public record a question about the scope of the power to recall part-heard cases and the necessity of reasons for it. Whatever view one takes of the propriety of airing such a grievance in a judgment, the underlying legal point, that a part-heard case cannot be recalled under Section 409 once trial has begun, and that any transfer under Section 408 must rest on recorded, justifiable reasons, is a settled one, and the requirement of a speaking order is basic to administrative fairness.
The wider observations, on power, accountability and the danger of authority that considers itself beyond question, are general reflections rather than findings against any named person, and are best read as such. They speak to a principle that applies across public institutions, including the judiciary’s own administrative side: that the exercise of discretionary power over another’s docket, especially in grave cases, ought to be transparent and reasoned, not least so that victims and complainants understand why their cases have moved. The transfer or recall of criminal cases is an ordinary administrative incident of court management, but the manner of its exercise is what the judgment questions.
It should be kept in view that this is one judicial officer’s account and legal analysis, recorded in his own judgment; the administrative side may have had reasons that are not before the public, and the correctness of the recall, and of the manner in which the objection was raised, are matters that lie with the High Court on its administrative and judicial sides. What the judgment squarely places in the open is a demand for reasons and transparency in the movement of serious cases, and a set of pointed questions about accountability that the system will have to answer in its own forums.
Matter: Judgment dated September 17, 2026 of the Additional District and Sessions Judge, Muzaffarnagar, acquitting an accused under Sections 8/20 of the NDPS Act, with observations on the recall of 97 part-heard cases
Judicial Officer: Ravi Kumar Diwakar, Additional District and Sessions Judge, Muzaffarnagar
Provisions discussed: Sections 408, 409 and 412 CrPC (Section 449 BNSS); Sections 8/20 NDPS Act
Status: NDPS accused acquitted. Observations on the recall of cases recorded in the judgment; administrative aspects lie with the High Court.