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1972 DIGILAW 166 (KAR)

BHARAMARAMBIKA ALIAS AMBAKKA v. STATE OF MYSORE

1972-07-18

NESARGI

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( 1 ) THIS petition is filed under S. 526 (1) (d) Crpc. for transfer of CC. No. 2330 of 1971 from the file of the Special First Class Magistrate, Davangere, to the file of the Judicial Magistrate, First Class, Chitradurga. ( 2 ) THE petitioner is complainant in CC. No. 2330 of 1971 on the file of the Special First Class Magistrate, Davangere. She filed the complaint on 6-7-1971 alleging that respondent 2, the husband of the petitioner, had, during the subsistence of their marriage, married one Jayamma, respondent 3 and that that marriage had been abetted by the remaining respondents 4 to 6. The Magistrate recorded the sworn statement of the complainant on 6-7-1971 and then recorded sworn statements of two withseses on 2-8-1971 and thereafter directed issue of processes. Respondents 2 to 6 who are accused Nos. 1 to 5 before him appeared on 22-9-1971 and were enlarged on bail. The matter was posted for recording of evidence on 13-10-1971. The matter was adjourned to 15-12-1971 and then to 17-1-1972. On that date, the complainant-petitioner filed an application stating that she had filed an application in the Court of the Sessions Judee, Chitradurga, under S. 528 (1) (c) of the Crpc. praying for transfer of the case from that Court to the Court at Chitradurga on the ground that both the parties and 5 out of 7 witnesses were from Hiriyur Taluk and it was convenient to all of them to have the case tried in the Court of the Judicial magistrate at Chitradurga. The case was adjourned in view of the transfer application. ( 3 ) THE learned Sessions Judge, has, in Cr. Misc. No. 1 of 1972, passed an order rejecting the request made by the complainant for transfer of the case holding as follows:"the inconvenience of the complainant or even her witnesses. I do not think, is a good ground to grant the prayer. "it is, in view of this order passed by the Sessions Judge, the complainant- petitioner has approached this Court under S. 526 (1) (d) Crpc. ( 4 ) THE complaint petition shows that 7 witnesses have to be examined on behalf of the complainant. I do not think, is a good ground to grant the prayer. "it is, in view of this order passed by the Sessions Judge, the complainant- petitioner has approached this Court under S. 526 (1) (d) Crpc. ( 4 ) THE complaint petition shows that 7 witnesses have to be examined on behalf of the complainant. Witness No. 1 is a resident of Davangere town; witness No. 6 is a resident of Hiriyur town and remaining five witnesses are either from Gannayakanahally to which both the complainant and all the accused belong or of some other village in Hiriyur taluk itself. Gannayakanahally is in Hiriyur taluka. The accused-respondents did not appear before the Sessions Judge in the said criminal miscellaneous petition and contest the matter. They have remained absent even though they were served with the notice of the present petition here also. These facts make it clear that accused-respondents appear to have no objection for the transfer of the case from the Court at Davangere to the court at Chitradurga for the general convenience of the parties and also of witnesses. ( 5 ) SECTION 526 (1) (d) reads as follows:"high Court may transfer a case or itself try it, (1) whenever it is made to appear to the High Courts: (d) that an order under this section will tend to the general convenience of the parties or witnesses, or. . . . . . . . "it is, therefore, evident that the facts found in the case fall within the four corners of the above provision of law and therefore an order transferring the said case CC. No. 2330 of 1971 from the Court of the Special First Class magistrate, Davangere, to rhe Court of the Judicial Magistrate, First Class, chitradurga, has to be passed. ( 6 ) THE learned Sessions Judge, in my opinion, has ignored the above provision of law while rejecting the petition filed before him and observing that inconvenience of the complainant or her witnesses is not a good ground to transfer the case. S. 528 (1) (1-c) of the Crpc. reads as follows:"any Sessions Judge, on an application made to him in this behalf, if he is of opinion that it is expedient for the ends of justice, order that any particular case be transferred from one Criminal Court to another Criminal Court in the same Sessions division. S. 528 (1) (1-c) of the Crpc. reads as follows:"any Sessions Judge, on an application made to him in this behalf, if he is of opinion that it is expedient for the ends of justice, order that any particular case be transferred from one Criminal Court to another Criminal Court in the same Sessions division. "the Court's at Davangere and Chitradurga are in the same Sessions division. No guide lines are provided in S. 528 (1) (1-c) of the Crpc. , to indi- cate what are the grounds that are to be considered to hold that it) would be expedient for the ends of justice fo transfer a case from one Criminal court to another Criminal Court in the same Sessions division. It has been held in a catena of decisions of various High Courts that the powers vested in the Sessions Judge by Sec. 528 (1) (Ic) are very wide and these powers should be judiciously and cautiously exercised. That would mean that the said powers cannot be exercised by a Sessions Judge in an arbirary manner. Sub-sec. (1) (a) of S. 526 Crpc. , has provided that when a transfer of a criminal case from one Criminal Court to another Criminal Court in the very same division is sought, an application for such a relief should be, in the first instance, filed in the Court of Sessions Judge of that particular sessions division and if it is rejected by the Sessions Judge then a remedy by way of an application before the High Court under S. 526 (1) Crpc. , would oe available. It is in this background, the grounds mentioned in s. 526 (1) (d) Crpc. , will have to be read while understanding what grounds are to be regarded as expedient for the ends of justice to pass an order of transfer of criminal cases from one Criminal Court to another Criminal court in the very same division. I am clearly of the opinion that the sessions Judges, while exercising their powers under S. 528 (1) (1-c) of the crpc. , will have to bear in mind the "grounds mentioned in S. 526 (1), crpc. The grounds mentioned in 3. 526 (1) are not exhaustive. The power vested in Sessions Judge under S. 528 (1) (1-c) is very wide. , will have to bear in mind the "grounds mentioned in S. 526 (1), crpc. The grounds mentioned in 3. 526 (1) are not exhaustive. The power vested in Sessions Judge under S. 528 (1) (1-c) is very wide. Though particular circumstances found in a criminal case may not fall within any one of the grounds mentioned in S. 526 (1), a Sessions Judge has ample powers to transfer such a case from one Criminal Court to another Criminal Court in his division provided that he is of opinion that it is expedient} for the ends of justice that such an order of transfer should be made. ( 7 ) IN view of the above position in law, it has to be held that the view taken by the Sessions Judge that inconvenience of the complainant or even her witnesses is not a good ground to grant the prayer made by her, is not correct in law. ( 8 ) IN view of the foregoing reasons, this petition is allowed. CC. No. 2330 of 1971 on the file of the Special First Class Magisterate, Davangere, is transferred from that Court to the Court of the Judicial Magistrate, first Class, Chitradurga, and the latter Court is directed to dispose of the case according to law. --- *** --- .