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2014 DIGILAW 230 (CHH)

M. Mohan Rao v. State of C. G.

2014-06-23

SANJAY K.AGRAWAL

body2014
Order Sanjay K. Agrawal, J. 1. Invoking jurisdiction of this Court under Section 407 of the Code of Criminal Procedure (for short 'the Code'), instant transfer petition, seeking transfer from the Court of Judicial Magistrate First Class, Durg to another competent jurisdictional Court, has been filed by the applicant herein, who is facing trial for the offence punishable under the provisions of Negotiable Instruments Act, 1881. 2. Brief facts necessary for disposal of this petition are as under:- (2.1) On a complaint filed by respondent No. 2/complainant - Pragyanand Sahu for offence under Section 138 of the Negotiable Instrument Act (for short "the Act") on 7.8.2013, the trial Magistrate has taken cognizance on 16.09.2003 and on that date offence under Section 138 of the Act was registered against the petitioner herein; and further directed to issue summons on payment of process fee thereafter, the date for appearance was given on 13.12.2013 but later on it has been corrected as 28.09.2013. On 28.9.2013, applicant appeared before the trial Court, though no summons was issued and received by him, and filed his memo of appearance; and on that date, he was released on bail upon furnishing personal bond to the satisfaction of the trial Court. Thereafter, on 20.2.2014, instant application has been filed by the applicant on the ground that learned Magistrate has acted arbitrarily and corrected the order sheet dated 16.9.2013 and acting under the influence of complainant, he was wrongly made to appear on 28.9.2013 and, therefore, his case be transferred to other Court of Sessions Division, Raipur. (2.2) On the other hand, Shri Amiakant Tiwari, learned counsel for the respondent No. 2/complainant would submit that the petitioner has failed to make out any ground for transfer of his case under Section 407 of the Code. 3. In order to decide the instant transfer petition, it would be proper to notice under Section 407 of the Code, which reads as under:- "407. 3. In order to decide the instant transfer petition, it would be proper to notice under Section 407 of the Code, which reads as under:- "407. Power of High Court to transfer cases and appeals.--(1) Whenever it is made to appear to the High Court-- (a) that a fair 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 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 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 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 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 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). (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 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 at least-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 of 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 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 proper in the circumstances of the case. (8) When the High Court orders 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. 4. Section 407 of the Code provides that in order to ensure fair and impartial trial or some question of law of unusual difficulty is likely to arise; or an order under this Section is required by any provision of this Code, or will tend to the general convenience of the parties or witness, or is expedient for the ends of justice. 5. The question for consideration is whether the applicant has made out a case for transfer as provided in Section 407 of the Code. 6. 5. The question for consideration is whether the applicant has made out a case for transfer as provided in Section 407 of the Code. 6. The Supreme Court in case of Abdul Nazar Madani Vs. State of T.N. and another (2000) 6 SCC 204 highlighted the relevant consideration for transfer and held that when it is shown that public confidence in fairness of trial would be seriously undermined, any party can seek the transfer of a case within the State under Section 407 of the Code and concluded as under:- "7. The purpose of the criminal trial is to dispense fair and impartial justice uninfluenced by extraneous considerations. When it is shown that public confidence in the fairness of a trial would be seriously undermined , any party can seek the transfer of a case within the State under Section 407 and anywhere in the country under Section 406 CrPC. The apprehension of not getting a fair and impartial inquiry or trial is required to be reasonable and not imaginary, based upon conjectures and surmises. If it appears that the dispensation of criminal justice is not possible impartially and objectively and without any bias, before any court or even at any place, the appropriate court may transfer the case to another court where it feels that holding of fair and proper trial is conducive. No universal or hard and fast rules can be prescribed for deciding a transfer petition which has always to be decided on the basis of the facts of each case. Convenience of the parties including the witnesses to be produced at the trial is also a relevant consideration for deciding the transfer petition. The convenience of the parties does not necessarily mean the convenience of the petitioners alone who approached the court on misconceived notions of apprehension. Convenience for the purposes of transfer means the convenience of the prosecution, other accused, the witnesses and the larger interest of the society." 7. The same view has been reiterated by the Supreme Court in case of Monica Vs. State of Rajasthan, AIR 2010 SC 103 . 8. Convenience for the purposes of transfer means the convenience of the prosecution, other accused, the witnesses and the larger interest of the society." 7. The same view has been reiterated by the Supreme Court in case of Monica Vs. State of Rajasthan, AIR 2010 SC 103 . 8. Having ascertained the legal position and turning to the facts of the case, it would appear that in the instant case, applicant himself has appeared before the trial Court on 28.09.2013 and has filed his memo of appearance before the trial Magistrate though no summons was received by him and he was enlarged on bail on furnishing personal bond. No documents has been brought on record that immediately after 28.9.2013 he made any steps to challenge the order dated 28.9.2013 or made any application in that Court complaining the incorrect recording of the order sheet. 9. Applicant having suo motu appeared before the trial Court and filed his memo of appearance, thereafter not taking any steps questioning the order dated 28.9.2013 cannot be allowed to contend that order dated 28.9.2013 is incorrectly recorded or he was forced to file memo of appearance before that Court. 10. The Supreme Court in case of State of Maharashtra Vs. Ramdas Shrinivas Nayak and another (1982) 2 SCC 463 has held as under:- "Statements of fact as to what transpired at the hearing, recorded in the judgment of the court, are conclusive of the facts so stated and no one can contradict such statements by affidavit or other evidence. If a party thinks that the happening in court have been wrongly recorded in a judgment, it is incumbent upon the part, while the matter is still fresh in the minds of the judges, to call the attention of the very judges who have made the record to the fact that the statement made with regard to his conduct was a statement that had been made in error. That is the only way to have the record corrected. If no such step is taken, the matter must necessarily end there. That is the only way to have the record corrected. If no such step is taken, the matter must necessarily end there. Of course, a party may resile and an appellate court may permit him in rare and appropriate cases to resile from a concession on the ground that the concession was made on a wrong appreciation of the law and had led to gross injustice; but, he may not call in question the very fact of making the concession as recorded in the judgment". 11. Thus, following the ratio of law laid by the Supreme Court in above stated case; it is held that the proceeding recorded in the order sheet dated 28.9.2013 is conclusive and applicant is not entitled to contradict the same by filing affidavit or other evidence, as he has not taken any steps to correct it. 12. Thus, applicant herein appeared before the competent jurisdictional criminal court and having filed Vakalatnama cannot be allowed to turn around and claimed that he was forcibly made to appear before the Court and that cannot be ground to seek transfer of criminal case and applicant has not established any other ground as envisaged under Section 407(1) of Cr.P.C. 13. Apart from this, the applicant had remedy to file an application for transfer of a criminal case under Section 410 of the Code from one court of Judicial Magistrate to any court of Magistrate, but he did not avail such remedy and directly approached before this Court under Section 407 of the Code. 14. Since the applicant has failed to make out the case for transfer of the case within the meaning of Section 407 of the Code, the transfer petition deserves to be dismissed. 15. Resultantly, the transfer application fails and is hereby dismissed. Application dismissed.