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2003 DIGILAW 1521 (RAJ)

Shambhulal Nagar v. State of Rajasthan

2003-11-10

HARBANS LAL

body2003
JUDGMENT 1. - The instant two transfer petitions u/s. 407 of the Code of Criminal Procedure, 1973 seek transfer of Sessions Case No. 72/02 pending in the court of learned Addl. Sessions Judge (Fast Track) No. 2, Kota to some other court outside District Kota.Briefly stated the relevant facts that a case being Sessions Case No. 72/02 for the offences u/ss. 147, 148, 307 and 149 I.RC. came to be registered which is pending in the court of Addl. District & Sessions Judge (First Track) No. 2, Kota after being transferred from the court of District & Sessions Judge, Kota. An application was moved before the said court by the petitioners expressing their desire to get the said sessions case transferred to some other court and seeking time for the same. But the same was disallowed vide order dated 16.1.2003 with the observation that the prayer for staying the proceedings and granting time for the transfer of the sessions case could not be granted in view of the amended provisions of the law. Thereafter, the application being application No. 135/03 was filed before the learned Sessions Judge, Kota for the transfer of the said sessions case which was after hearing the learned counsel for the parties disallowed vide order dated 29.1.2003. 2. It is alleged that the complainant Laxman Das Chandana is running his business in the name and style of Chandana Navrang Travels just opposite the Navrang Hotel belonging to Shri Shanti Dhariwal, the Honble Minister, Government of Rajasthan, who is closely associated with the complainant. The instant case has attained political hue. Most of the petitioners are residents of Bundi. When-ever they come to Kota to attend the hearing of the said case, they are surrounded by 25-50 persons of Navrang Travels at the bus stand. Senior police officers and other police constables who are posted in different police stations of the city come in the court premises duly armed with guns and rifles etc. Their presence in huge numbers not only frightens the petitioners but it has also terrorising and pernicious effect on the working of the court and on the minds of the accused persons. Learned counsel for the complainant is permitted to conduct the case without the consent and permission of the court as well as of the District Collector who represents the State. Learned counsel for the complainant is permitted to conduct the case without the consent and permission of the court as well as of the District Collector who represents the State. All this shows that the complainant and his persons as well as Shri Shanti Dhariwal, Honble Minister are taking keen interest in the trial of the said sessions case and the learned Sessions Judge also is under their influence. During last 100 years such a thing has never happened when large number of police constables remained present in the court premises at the time of the trial of a certain case. No request for providing police protection has been made either by the complainant or the accused. Learned Addl. Sessions Judge has unjustifiably refused to adjourn the case for enabling the petitioners to get it transferred which by itself is a valid ground for transfer of the case has been held in the case of Baliram Kashinath v. Mt. Marubai-AIR 1936 Nagpur 233, AIR 1930 Madras 187, 1988 R.L.R. (2) Raj. 831 and in the matter of three of Jhansi-AIR 1928 Allahabad 396 (Special Bench). Learned Sessions Judge has also not properly appreciated the circumstances of the case in refusing to transfer the case. Justice should not only be done, it should appear to have been done is the cardinal principles of jurisprudence. The complainant brings 100-150 gundas in the court premises at the time of hearing of the case. It has, therefore, been prayed that the aforesaid sessions case may be transferred to Bundi Judge-ship. 3. I have heard learned counsel for the petitioners, learned PP. on behalf of the State and the learned counsel for the complainant. I have also perused the orders dated 16.1.2003 and 29.1.2003 passed by the learned Addl. Sessions Judge (Fast Track) No. 2, Kota and learned Sessions Judge, Kota respectively as also the comments received from the concerned courts. 4. Section 407 of the Code of Criminal Procedure, 1973 is as under: "407. I have also perused the orders dated 16.1.2003 and 29.1.2003 passed by the learned Addl. Sessions Judge (Fast Track) No. 2, Kota and learned Sessions Judge, Kota respectively as also the comments received from the concerned courts. 4. Section 407 of the Code of Criminal Procedure, 1973 is as under: "407. Power of High Court to transfer cases and appeals : (1) when-ever it is made to appear to the High Court - (a) that a fair and impartial inquiry or trial cannot be held in any Criminal Court subordinate thereto, or (b) that some question of law of unusual difficulty is likely to arise, or (c) that an order under this section is required by any provision of this Code, or wili tend to the general convenience of the parties or witnesses, or is expedient for the ends of justice, it may order (1) that any offence be inquired into or tried by any Court not qualified under Sections 177 to 185 (both inclusive), but in other respects competent to inquire into or try such offence; (ii) that any particular case or appeal, or case of cases or appeals, be transferred from a Criminal court subordinate to its authority to any other such Criminal Court of equal or superior jurisdiction, (iii) that any particular case be committed for trial to a court of Session; or (iv) that any particular case or appeal be transferred to and tried before itself. (2) The High Court may act either on the report of the lower Court, or on the application of a party interested, or on its own initiative; Provided that no application lie to the High Court for transferring a case from one Criminal Court to another Criminal Court in the same sessions division, unless an application for such transfer has been made to the Sessions Judge and rejected by him. (3) Every application for an order under sub- section (i) shall be made by motion, which shall, except when the applicant is the Advocate-General of the State, be supported by affidavit or affirmation. (4) to (9)" 5. A bare perusal of the aforesaid section makes it abundantly clear that a case can be transferred by the High Court from one criminal court subordinate to its authority to any other court of equal or superior jurisdiction if any one of the conditions mentioned in sub-section (1) of Section 407 Cr.RC. (4) to (9)" 5. A bare perusal of the aforesaid section makes it abundantly clear that a case can be transferred by the High Court from one criminal court subordinate to its authority to any other court of equal or superior jurisdiction if any one of the conditions mentioned in sub-section (1) of Section 407 Cr.RC. is made out. An application for an order under sub-section (1) shall be made except when the appellant is the Advocate General of the State, be supported by affidavit or affirmation. 6. It is a patent fact that both the instant applications which have been filed by the petitioners accused are not supported by affidavit or affirmation and they to be dismissed on this ground alone. 7. This apart, the petitioners have no doubt indicated that the learned Sessions Judge who refused to transfer the sessions case is under the influence of the complainant and Shri Shanti Dhariwal, Honble Minister, Government of Rajasthan, who happened to be a close associate of the complainant. But the trial is being conducted by the learned Addl. Sessions Judge (Fast Track) No. 2, against whom even such allegation has not been levelled. There is absolutely no cogent and valid basis cherish such mis apprehension on the part of the petitioners. There is nothing wrong in calling the police for maintaining law and order whenever the said case is fixed for hearing and the facts alleged by the petitioners themselves justify the calling of police force for maintaining law and order in the court premises looking to the prevailing high tempers between the parties. There is no specific allegation of malice, bias, prejudice or partiality against the Presiding Officer of the trial court. 8. So far as the ground of convenience of the parties or witnesses is concerned, Bundi being not at a far off distance from Kota and being well connected by means of transportation, it also does not constitute a valid and just ground for transfer of the said sessions case. Out of 14 petitioners in S.B. Criminal Transfer Petition No. 2/2003 7 petitioners belong to Kota and the application does not mention the particulars of the witnesses who belong to Bundi and Kota. Out of 14 petitioners in S.B. Criminal Transfer Petition No. 2/2003 7 petitioners belong to Kota and the application does not mention the particulars of the witnesses who belong to Bundi and Kota. The occurrence has allegedly taken place in Kota and, therefore, the case cannot normally be transferred to other court which has no territorial jurisdiction to try this case without the consent of the opposite party, in the instant case, learned counsel for the complainant has strongly opposed this. If the case is transferred without the consent and agreement of the opposite party, the opposite party may have similar apprehension of denial of justice and this would unnecessarily prolong the proceedings. 9. In view of fore-going discussion, therefore, no case for transfer of the Sessions case is made out from Kota to Bundi or to some other court in the same sessions division. 10. Consequently, both these petitions being devoid of merit and substance deserve to be and are hereby dismissed.Petition dismissed. *******