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2006 DIGILAW 287 (GAU)

Anil Kumar Baruah v. State of Arunachal Pradesh

2006-03-23

B.K.SHARMA

body2006
1. Heard Mr. B.N. Sarma, learned counsel for the petitioner and Mr. B. Banerjee, learned Public Prosecutor, Arunachal Pradesh. Also heard Mr. A.M. Buzarbarah, learned State Counsel, Arunachal Pradesh. 2. By means of this application under section 407 Cr.P.C. read with article 227 of the Constitution of India, the petitioner seeks an order for transfer of G.R. Case No. 104/89 now pending in the court of learned Session Judge/District Magistrate, Roing, Arunachal Pradesh which was earlier pending in the court of learned Judicial Magistrate, Roing, Arunachal Pradesh. 3. It appears from the records that making the same prayer, the petitioner had approached the learned Deputy Commissioner/Session Judge, Lower Dibang Valley in the District of Roing by filing application which was registered and numbered as Misc. Petition No. 4/04. The application has been disposed of by an order dated 2.5.2005 rejecting the prayer of the petitioner for transfer of the case from the court of learned Magistrate, Roing. 4. The instant transfer petition was filed on 21.6.2005, i.e., after the order dated 2.5.2005 was passed by the learned Deputy Commissioner/Session Judge, Roing. The statement made in this application is that the learned Deputy Commissioner/Session Judge refused to pass any order which on the face of it is not correct inasmuch as per the own showing of the petitioner by his affidavit filed on 18,7.2005, the transfer application registered and numbered as Misc. petition No. 4/04 was rejected by an order dated 2.5.2005. Legally speaking, nothing survives after the order dated 2.5.2005 for the petitioner to invoke the provisions of section 407 Cr.P.C. seeking transfer of the aforesaid case from Roing, Arunachal Pradesh to the court of learned Chief Judicial Magistrate, Kamrup, Guwahati. 5. There is no dispute rather it has been admitted by the petitioner that hearing of the case before the learned Magistrate Roing has been concluded and the case is now at the stage of delivering judgment. I have gone through the records of the case and it is found that the petitioner fully participated all throughout the proceeding of the case and even his learned counsel made his final submission towards conclusion of the hearing of the case. However, different dates were fixed thereafter providing opportunity to the parties to submit their respective written arguments. I have gone through the records of the case and it is found that the petitioner fully participated all throughout the proceeding of the case and even his learned counsel made his final submission towards conclusion of the hearing of the case. However, different dates were fixed thereafter providing opportunity to the parties to submit their respective written arguments. It was at that stage, the petitioner approached the learned Deputy Commissioner exercising the power of jurisdiction of sessions court for transfer of the case to the court of learned Chief Judicial Magistrate, Kamrup, Guwahati. The Deputy Commissioner/Sessions Judge, Roing passed his reasoned order dated 2.5.2005 declined to accept the prayer of the petitioner and has rejected his application by the aforesaid order dated 2.5.2005. 6. I have perused the order dated 2.5.2005 and on perusal of the same, I find that the learned Deputy Commissioner/Session Judge, Roing has meticulously dealt with the contentions raised on behalf of the petitioner which are also the contentions in the present application. Apart from the fact that at the time of filing of the instant application, the earlier petition filed before the Deputy Commissioner/Session Judge stood rejected By the order 2.5.2005 and the said fact was not disclosed in the present petition, the grounds on the basis of which the petitioner seeks transfer of the case are not at all tenable. The learned Deputy Commissioner/Session Judge in his order-dated 2.5.2005 has already dealt with all these grounds towards rejection of the prayer for transfer of the case. 7. The primary ground on which the instant petition has been filed for transfer of the case is that there being no separation of judiciary and the learned Magistrate Roing also being empowered to exercise the executive function, the petitioner may not get justice. Referring to the earlier proceeding initiated by the petitioner seeking quashing of the proceeding before the learned trial court, the petitioner has contended that this court having directed expeditious disposal of the matter preferably within 6 months, the failure on the part of the trial court to adhere to the time limit to so fixed has resulted in failure of justice requiring interference of this court to the said proceeding. 8. 8. In this connection, it will be pertinent to mention here that the instant proceeding is pending since 1989 and the petitioner on an earlier occasion had approached this court by filing Criminal Revision petition No. 202/92. Thus, naturally the proceeding before the learned Magistrate could not proceed and eventually the Criminal Revision Petition was dismissed by Judgment and order dated 22.5.2001. However, it was provided that the learned Magistrate shall dispose of the matter preferably within 6 months. Thus, it will be seen that the delay towards disposal of the proceeding is primarily attributable to the petitioner. This aspect of the matter has been discussed by the Deputy Commissioner/Session Judge in the order-dated 2.5.2005. 9. Merely because there is no separation of Judiciary from the Executive, the jurisdiction vested in a particular Court cannot be ousted if a particular court is empowered to exercise particular jurisdiction. The petitioner himself participated in the proceeding all throughout even to the stage of conclusion of the hearing making final oral arguments and it was at the stage of submission of written argument, the petitioner approached this court by filing the instant petition by withholding the fact that his earlier petition filed before the Deputy Commissioner/Session Judge was dismissed by the order dated 2.5.2005 which was prior to filing of the instant petition. 10. Mr. Sarma, learned counsel for the petitioner has placed reliance on three decisions which are, viz., AIR 1965 SC 720 (Hazara Singh Gill v. the State of Punjab); 1983 (D GLR 87 (Krishna Singh v. State of Assam) and 2001 (2) GLT 238 (Naba Welly and Ors. v. State of Assam). None of the cases and the principles of law laid down therein are applicable to the present case. Needless to say that the ratio of any decision will have to be understood in the background of that case. In the case of Hazara Singh Gill (supra) the Apex Court noticing the fact that there was serious allegations against the Govt. of Punjab of harassment of petitioner therein by launching prosecution under various laws and the personal accusations against the Chief Minister of Punjab and Sr. Superintendent of Police, Amritsar, who was a relative of the Chief Minister and there being no specific denial against the contentions raised by the petitioner ordered for transfer of the Case. In the instant case, no such plea has been raised. Superintendent of Police, Amritsar, who was a relative of the Chief Minister and there being no specific denial against the contentions raised by the petitioner ordered for transfer of the Case. In the instant case, no such plea has been raised. Thus, the case is of no help to the petitioner. In the case of Krishna Singh (supra) the application under section 407 Cr.P.C. was allowed by this Court on the established fact of surcharged atmosphere against the petitioner. This case is also of no help to the petitioner. In the case of Naba Welly and Others (supra) the transfer of the case at the request by the parties on the ground of convenience was allowed. The same is not the case in hand. Thus, none of the cases on which Mr Sarma, learned counsel has placed reliance can render any assistance to the case of the petitioner. 11. Mr. B. Banerjee, learned Public Prosecutor, AP referring to the records of the case has submitted that since the mater is at the final stage, no interference is called for at this stage and that too on the grounds on the basis of which the instant application has been filed. I am fully in agreement with the submission made by Mr. Banerjee. The petitioner having participated all throughout the proceeding before the learned Magistrate, Roing cannot now turn around with the same so as to question the very jurisdiction of the court on the ground on which the instant petition has been filed. Apart from this, the earlier petition on the same set of grounds filed before the learned Deputy Commissioner/Session Judge having been rejected by the aforesaid order dated 2.5.2005, the instant petition is also not maintainable. However, independent of the order dated 2.5.2005 passed by the learned Deputy Commissioner/Session Judge, I have considered the present, application and in my considered opinion none of the grounds urged can render any help to the case of the petitioner. 12. The learned Deputy Commissioner/Session Judge, Roing by his order dated 2.5.2005 while dismissing the petition issued direction for continuance of the case before the trial court and disposal of the same at the earliest possible. The records have revealed that the hearing of the case has already been concluded and it was at the stage of submission of written arguments, the instant petition was filed. The records have revealed that the hearing of the case has already been concluded and it was at the stage of submission of written arguments, the instant petition was filed. The records having been called for, there was no question of proceeding with the matter by the learned Magistrate. Now, in view of dismissal of the instant petition, the records shall be sent to the learned Magistrate, Roing so as to enable him to dispose of the matter at the earliest possible time. It will be open for the petitioner to submit written arguments. 13. The transfer petition is accordingly dismissed. There shall, however, be no order as to costs. 14. Registry shall transmit the records to the learned court below immediately without any delay.