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Himachal Pradesh High Court · body

2000 DIGILAW 247 (HP)

SANTOSH KUMAR PAL v. STATE OF H. P.

2000-09-14

M.R.VERMA

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JUDGMENT (M.R. Verma, J.) (Oral):- The petitioner/accused (hereinafter referred to as the accused) by this application have prayed for transfer of the case F.I.R. No. 100/-99 under Sections 304/307 I.P.C. titled State vs. Santosh Kumar and others from the Court of learned Sessions Judge, Rampur Bushehar to some other Sessions Division. The transfer has been prayed for on the grounds : (i) that all the accused belong to the States of Utter Pradesh and Madhya Pradesh and on account of the local factors it is highly inconvenient and risky to them to appear in the Court of learned Sessions Judge, Rampur to defend themselves (ii) that because of the activities of Center of Indian Trade Union (CITU) espousing the case of the striking workmen, accused apprehend danger to their persons from the members of the said Union (iii) that the accused have to travel more than 1000 kms, to come to attend the said case resulting in great financial strain on their meager salary; and (iv) that the common human feelings on account of regionalism are absolutely anti accused and they would not be able to face the trial with an equanimity in mind as the atmosphere in Rampur Bushahar is surcharged against them. 2. The application has been resisted by the State respondent on the grounds that the area concerned is quite peaceful and the distance the accused will have to travel to face the trial is no ground to transfer the case. It is further averred in the reply by the respondent that on the grounds as mentioned in the application, the case does not deserve to be transferred as prayed for. 3. I have heard the learned counsel for the parties and have also gone through the material placed on the record. 4. It is further averred in the reply by the respondent that on the grounds as mentioned in the application, the case does not deserve to be transferred as prayed for. 3. I have heard the learned counsel for the parties and have also gone through the material placed on the record. 4. It was contended by the learned counsel for the accused that there is no dispute that to face the trial the accused will have to travel a distance of about 1060 kms on each and every date of hearing, therefore, keeping in view the resultant inconvenience to the accused and the financial burden they will have to face In appearing before the trial court at Rampur the case maybe transferred to some other Court in view of the provisions of clause (c) of Sub Section (1) of Section 407 of the Code of Criminal Procedure, 1973 (here-in-after referred to as the Code) which empowers this Court to transfer cases and appeals from one Court to another if such transfer tends of the general convenience of the parties or witnesses or is convenient in the ends of justice. To substantiate his contention the learned counsel has relied on Shakti Raj Jangi Ram vs. State, 1969 Cri. L.J. 1161. In this case the prosecuting Sub-Inspector in his report to the Deputy Inspector General has stated that the delay in the commitment of the case was because of delaying tactics of the accused and a lenient view was taken by committing Magistrate. In turn the D.I.G. wrote to the District Magistrate, Delhi who had control over the Subordinate Magistrate in regard to their judicial as well as Executive functions for taking suitable action. The District Magistrate forewords the letter of the D.I.G. alongwith the report of the prosecuting Sub Inspector to the Magistrate holding the commitment proceedings. It was against this background the Delhi High Court held as follows: "....In Delhi, where the District Magistrate has complete control over all subordinate Magistrate, both in regard to their executive and judicial functions, the leaned Magistrate holding the commitment proceedings in the case in hand may not reasonably be considered to remain completely uninfluenced by the report of the P.S.I, and the covering letter of the Deputy Inspector General of Police, both of which have been forwarded to him by the learned District Magistrate, as has been suggested at the bar. Common human feelings and likely reaction of incidents, like the present, on an average human mind, mhay appropriately be taken into account when considering the question of expediency in the ends of justice for the purpose of transferring cases from one competent Court to another. It is not unreasonable to think that the learned Magistrate would look upon the P.S.I, not as an ordinary counsel appearing in his Court to prosecute the case on behalf of the State, but as a person whose report may influence the impression of the superior authorities of the learned Magistrate. Such an impression on the mind of the learned Magistrate cannot advance the cause of justice. And the, the accused person, assuming he has been so far unaware of these communications, may not remain ignorant of them and on coming the know of the report and the letters, he may well have a reasonable apprehension that he would not get an impartial and fair treatment in the Court of the learned Magistrate. The argument that after all these are only commitment proceedings cannot be conclusive because commitment proceedings have also to be conducted in the same detached judicial atmosphere as trial. (7) For the reasons foregoing, I am constrained to allow this application and direct that the commitment proceedings be transferred from the Court of Shri K.N. Joshi, Magistrate 1st Class, Delhi, to some other competent Court". 5. In view of the facts and circumstances of the case as already set-out here-in-above, the ratio as laid down in above case is not attracted in this case because there is no allegation of any apprehension about the Presiding Judge I of the Court being influenced in any manner so that he may not be able to do even handed justice in the case. 6. So far as the apprehension of the accused persons in this case is concerned it is from the CITU activists who are stated to be quite active in the area. Be it stated that any such activities have been denied by the State-Respondent in its reply which is duly supported by the affidavit of District Magistrate concerned and such denial made on eath by an Officer responsible for the law and order situation cannot be brushed aside. It cannot, therefore, be said that there is any danger to the accused persons if they have to face the trial at Rampur. It cannot, therefore, be said that there is any danger to the accused persons if they have to face the trial at Rampur. Their plea of anti-feeling on account of regionalism is also unsustainable for the simple reason that it is a general allegation not based on any incidence which could have kept any credibility to this plea. 7. It is no doubt true that this Court has the power to transfer cases inter alia on the ground that such transfer will tend to the general convenience of the parties/witnesses or is expedient for the ends of justice. It may however be pointed out that to transfer a case from one Court to another on the ground of general convenience the Court has not only to see the convenience of the accused alone but has to take into account the convenience or resultant inconvenience to the parties or the witnesses and has also to bear in mind that in the ordinary course a case must be tried by the Court which has territorial jurisdiction to try it. The hypersensitivity or relative convenience of a party or mini-grievances may not be sufficient unless more compelling reasons are made out for such transfer. 8. In Mrs. Maneka Sanjay Gandhi & Anr. vs. Miss Rani Jethmalani, AIR 1979 SC 469, the Honble Supreme Court while dealing with the subject has held as follows: 2". Assurance of a fair trial is the first imperative of the dispensation of justice and the central criterion for the court to consider when a motion for transfer is made is not the hypersensitivity or relative convenience of a party or easy availability of legal services or like mini-grievances. Something more substantial, more compelling, more imperiling, from the point of view of public justice and its attendant environment, is necessitous if the Court is to exercise its power of transfer. This is the cardinal principle although the circumstances may be myriad and vary from case to case. We have to test the petitioners grounds on this touch-stone bearing in mind the rule that normally the complainant has the right to choose any court having jurisdiction and the accused cannot dictate where the case against him should be tried. Even so, the process of justice should not harass the parties and from that angle the court may weigh the circumstances". 9. In Baljit Singh & Ors. Even so, the process of justice should not harass the parties and from that angle the court may weigh the circumstances". 9. In Baljit Singh & Ors. vs. State of Jammu and Kashmir, AIR 1982 SC 1558, wherein transfer of a case by the High Court from one place to another on the ground that the witnesses belong to the latter was challenged place the Honble Supreme Court held as under : "The normal course of things should not have been lightly-interfere with and the case should have been allowed to be tried by the court which had territorial jurisdiction. Accepting the appeal, therefore, wet-aside the impugned order and direct that the case shall continue to be tried at Jammu by the Court which has dealt with it so far". 10. It is evident from the above that the paramount consideration in the matter of transfer of cases must se that a case in the ordinary course must be tried by the Court which has the territorial jurisdiction to try to and it should not be transferred to other Court unless compelling reasons are shown. 11. In the instant case apart from the^ alleged apprehension to their persons by the accused which is imaginary than real they have claimed the transfer on the ground of long distance they have to travel and the financial burden it is likely to create on them. Evidently, these are no grounds for transfer of the case for the simple reason that even if the case is ordered to be transferred it may curtail the journey of the accused by not more than 100 kms. but on the contrary will lead to inconvenience to the complainant and the witnesses and will also divest the Court having jurisdiction to try the case from trying it without there being any allegation of any bias or prejudice against Presiding Judge of the Court. 12. As a result I do not find any merit and substance in this application which is accordingly dismissed.