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2010 DIGILAW 3725 (MAD)

Arunachalam v. Duraisamy @ Goundae Gounder

2010-08-25

C.T.SELVAM

body2010
Judgment :- 1. The Petitioner seeks transfer of the case in S.C. No.33 of 2010 pending on the file of the learned Principal Sub-Judge/Assistant Sessions Judge, Erode top the learned Assistant Sessions Judge or Additional Sessions Judge, Bhavani or any other Competent Court. 2. The Petitioner is the de facto Complainant in the case. Upon his Complaint dated 22.7.2008, a case was registered in Crime No.311 of 2008 on the file of the 7th Respondent for offences under Section 447, 427, 342, 324 and 506 (ii), IPC, subsequently, altered to 147, 148, 447, 307 and 506 (ii), IPC. A final report was filed in P.R.C No.250 of 2008 on 16.10.2008 before the learned Judicial Magistrate, Bhavani arraying the Respondents 1 to 6 herein as Accused. The case was committed to the learned Principal Sessions Court, Erode and subsequently, made over to the learned Principal Sub-Judge/Assistant Sessions Judge, Erode in S.C.No.33 of 2010. The case is now at the stage of trial. The Petitioner /de facto Complainant has moved this Court seeking transfer and his grievance is that the Trial Court has not been accommodative towards him. While is that Trial Court has not been accommodative towards him. While summons were served upon him on 3.4.2010, when the case stood posted on 5.4.2010, the Lower Court upon his representation of inconvenience had posted the case to 6.4.2010 and again on 7.4.2010. Owing thereto, it is represented that he may not be afforded a fair and impartial trial. 3. Informing as above, the learned Counsel for the Petitioner relies on Section 177, Cr.P.C., which reads as follows: “177. Ordinary place of inquiry and trial.— Every offence shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed.” 4. Learned Counsel for the vacate stay Petitioners in M.P.No.2 of 2010 informs that the learned Sessions Judge had effected transfer on administrative grounds. This was well within his powers. The Petitioner is the de facto Complainant and his status was only that of a witness. Where neither the State/prosecuting agency nor the Accused are aggrieved by the order of transfer, one who is in the nature of witness would not be heard to Complain. This was well within his powers. The Petitioner is the de facto Complainant and his status was only that of a witness. Where neither the State/prosecuting agency nor the Accused are aggrieved by the order of transfer, one who is in the nature of witness would not be heard to Complain. Informing thus, learned Counsel places reliance on the judgment of the Honourable Jammu and Kashmir High Court in Ghulam Ahmed Dar v. Manzoor Ahmed Dar and others, 1989 (1) Crime 573, wherein such Court has observed as follows: “12. It may be stated that in a case which is prosecuted by the State, Complainant’s position is only that of a witness. He has no independent Authority either to prosecute the case or to move an Application for transfer unless he is permitted to do so by the Public prosecutor. The public Prosecutor has not permitted him to file this transfer Application as is reflected by para 11 of the Transfer Application. Therefore, this Application on this ground would merit dismissal.” 5. This Court is unable to see any prejudice in the action of the lower Court as the same only reflects an urgency to get on with the case before it. In the circumstances, this Petition shall stand dismissed. However, this Court is to record its inability to agree with the decision of the Hon’ble Jammu and Kashmir High Court in Ghulam Ahmed v. Manzor Ahmed Dar & Ors, 1989 (1) Crime 573. In the first place it is not for the Public Prosecutor to permit a witness to move a Transfer Application. Further, Sections 406 and 407, Cr.P.C., dealing with the power of transfer by the Supreme Court and High Court, reads as follows: “406. Power of Supreme Court to transfer cases and Appeals.— (1) Whenever it is made to appear to the Supreme Court that an order under this Section is expedient for the ends of justice, it may direct that any particulars case or Appeal be transferred from one High Court to another High Court or from a Criminal Court subordinate to one High Court to another Criminal Court of equal or superior jurisdiction subordinate to another High Court. (2) The Supreme Court may act under this section only on the Application of the Attorney-General of India or of a party interested, and every such Application shall be made by motion, which shall, except when the Applicant is the Attorney-General of India of the Advocate-General of the State, be supported by Affidavit or affirmation. (3) Where any Application for the exercise of the powers conferred by this Section as dismissed, the Supreme Court may, if it is of opinion that the Application was frivolous or vexatious, order the applicant to pay by way of compensation to any person who has opposed the Application such sum not exceeding one thousand rupees as it may consider appropriate in the circumstances of the case. 407. Power of High Court to transfer cases and Appeals.— (1) Whenever it is made to appear to the High Court— (a) that a file and impartial inquiry or trial cannot be had 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 will tend to the general convenience of the parties or witnesses, or is expedient for the ends of justice, It may order— (i) that may offence be inquired into or tired 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 class 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 sessions; 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 shall 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 for such transfer has been to the Sessions Judge and rejected by him. (3) Every application for an order under sub-section (1) 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) When such Application is made by an Accused person, the High Court may direct him to execute a bond, with or without sureties, for the payment of any compensation which the High Court may award under sub-section (7). (5) Every Accused person making such Application shall be give to the public prosecutor notice in writing of the Application, together with a copy of the grounds on which it is made; and no order shall be made on the merits of the Application unless twenty-four hours have elapsed between the giving of such notice and the hearing of the Application. (6) Where the Application is for the transfer of a case or Appeal from any subordinate Court, the High Court may, if it is satisfied that it is necessary so to do in the interests of justice, order that, pending the disposal of the Application, the proceedings in the Subordinate Court shall be stayed, on such terms as the High Court may think fit to impose: Provided that such stay shall not affect the subordinate Court’s power of remand under Section 309. (7) Where an Application for an order under sub-section (1) is dismissed, the High Court may, if it is of opinion that the Application was frivolous or vexatious order the Application to pay by way of compensation to any person who has opposed the Application such sum not exceeding one thousand rupees as it may consider in the circumstances of the cases. (8) when the High Court order under sub-section (1) that a case be transferred from any Court for trial before itself it shall observe in such trial the same procedure which that Court would have observed if the case had not been so transferred. (9) Nothing in this Section shall be deemed to affect any order of Government under Section 197. In both provisions it is seen that the party interested may move an application for transfer. In the decision of the Apex Court in K. Anbazhagan v. Supdt. Of Police, 2004 (3) SCC 767 , it had been observed as follows: “12. The Second leg of argument, what appears to be an argument of despair, is locus standi of the Petitioner. In the decision of the Apex Court in K. Anbazhagan v. Supdt. Of Police, 2004 (3) SCC 767 , it had been observed as follows: “12. The Second leg of argument, what appears to be an argument of despair, is locus standi of the Petitioner. In point of fact this question need not detain us any longer because on 28.2.2003 this Court had already granted permission to the Petitioner to file the Petition. No Application has taken out to revoke the permission so granted. Therefore, this question becomes mere academic. However, Since the question involved is of public importance, we proceed to answer the question. Mr. V.A. Bobde, learned Senior Counsel appearing for Respondents 3 and 4 in C.C.No.7 of 1997 and Respondent 3 in C.C.No.2 of 2001 contended that in view of the provision of subsection (2) of Section 406, Cr.P.C. the Petition is maintainable only when motion is moved by the Attorney General or by the “party interested” According to the Counsel, it is the “party interested” and not a “person interested” and, therefore, only the Attorney General or the “party interested” has locus standi to file application and the Petitioner not being a party to the proceeding is not a “party interested” and has no locus standi to the file the present Petition. We are unable to accept this submission for more than one reason. It will be noticed that the “party interested” has not been defined under Cr.P.C. The words “party interested” are of a wide import and, therefore, they have to be given a wider meaning. If it was the intendment of the legislature to give restricted meaning then it world have used words to the effect “party to the proceeding” In this behalf the wording of Article 139-A of the Constitution of India may be looked at. Under Article 139-A the transfer can be if “the Supreme Court is satisfied on its own motion or on an application made by the Attorney General of India or by a party to any such case”. (emphasis supplied) Also if the provision of Chapter XXXIX of the Criminal procedure Code are looked at, it is seen that when the legislature intended a “Party to the proceedings” to have a right of Appeal it specifically so stated. (emphasis supplied) Also if the provision of Chapter XXXIX of the Criminal procedure Code are looked at, it is seen that when the legislature intended a “Party to the proceedings” to have a right of Appeal it specifically so stated. The legislature, therefore, keeping in view the larger public interest involved in a Criminal justice system, purposely used words of a wider import in Section 406. Also, it is a well-settled principle of law that statutes must be interpreted to advance the cause of statute and not to defeat it. The Petitioner being a political opponent, is vitally interested in the administration of justice in the state and is a “party interested” within the meaning of sub-section (2) of Section 406, Cr.P.C. Even otherwise, Mr. Subramanian Swamy was the original Complainant. He supports theses Transfer Petitions”. Falling in line with the observation, we would find that the de facto Complainant would be person interested in the case initiated by him, reaching its just end and as such would be a person entitled to move Application for transfer. 6. With the above observation, this Criminal Original Petition shall stand dismissed.