Research › Search › Judgment

Karnataka High Court · body

2014 DIGILAW 295 (KAR)

K. N. Shanth Kumar v. S. T. Krishna Prasad

2014-03-03

S.N.SATYANARAYANA

body2014
ORDER : S.N. Satyanarayana, J. 1. Accused Nos. 1 and 2 in C.C. No. 305/2012 on the file of Judicial Magistrate First Class, Periyapatna, have come up in this petition under Section 407 of Cr.P.C., seeking transfer of said proceeding from the jurisdiction of Judicial Magistrate First Class, Periyapatna to any other Court of Metropolitan Magistrate at the city of Bangalore. 2. The proceeding in C.C. No. 305/2012 is initiated by first respondent-complainant by filing a private complaint under Section 200 of Cr.P.C., for offences punishable under Sections499 and 500 of IPC. It is seen that private complaint is not only against petitioners herein but also against other persons, who are respondents 2 to 13 in this proceedings. To briefly state it is with reference to certain publication, which is made against Advocates of Periyapatna. It is stated that, the article is generally about the conduct of Advocates, more particularly, with reference to an incident, which has taken place on 2.3.2012 when a former Minister in the cabinet of Karnataka Assembly was scheduled to be produced before the City Civil Court Complex, a commotion is said to have taken place which has led to unruly situation, which is said to have depicted in a manner where the Advocates are shown to be in bad light. In the private complaint, which was filed on the file of JMFC, Periyapatna, sworn statement of complainant was recorded and he was heard. Subsequently, cognizance of offences alleged is taken and notices are issued to accused, who are petitioners 1 and 2 and respondents 2 to 13 herein. 3. The case of petitioners herein is that, on service of summons in C.C. No. 305/2012 on the file of JMFC, Periyapatna, an attempt was made by them to engage the services of a local lawyer to represent them in said proceeding. However, it is stated that, there appears to be resistance among the lawyers in extending any kind of assistance for their representation before the Court and the local bar has passed a resolution in all the lawyers unanimously deciding not to represent the accused, petitioners herein in any proceeding. However, it is stated that, there appears to be resistance among the lawyers in extending any kind of assistance for their representation before the Court and the local bar has passed a resolution in all the lawyers unanimously deciding not to represent the accused, petitioners herein in any proceeding. With this background, the present petition is filed seeking specific relief that criminal case which, is pending in C.C. No. 305/2012 on the file of JMFC, Periyapatna, may be transferred to any Court of Metropolitan Magistrate having jurisdiction to try the same in the city of Bangalore. 4. In this proceeding, first respondent is served and unrepresented. So far as other respondents are concerned, who are co-accused with petitioners, at the request of counsel for petitioners notice to said respondents is dispensed with. Now this petition is at the stage of admission. 5. Learned Senior Counsel Sri S.S. Naganand appearing for petitioners would rely on the following five decisions in support of the petition for transfer filed under Section 407 of Cr.P.C. 1) Gurcharan Dass Chadha vs. State of Rajasthan, Reported in AIR 1966 SC 1418 . 2) Abdul Nazar Madani vs. State of T.N. and another, Reported in AIR 2000 SC 2293 (1) 3) Deepak Shukla vs. Smt. Savita Shukla, Reported in 2003 Crl.L.J. 4020 (High Court of Madhya Pradesh) 4) Gulshan Malik vs. State of U.P. Reported in 2002 Crl.L.J. 668 (High Court of Allahabad) 5) Rajendra Gandhi vs. State of Maharashtra & Anr., Arising out of Crl. Appln. No. 1856/1998, D.D. 17.10.1988 by the High Court of Bombay. 6. Before adverting to the facts of this case, the relevant provision i.e., 407 Cr.P.C., is required to be looked in to, which reads thus. 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, x x x x x x x 7. In the instant case, on going through the averments made in the petition it is seen that, the reason assigned seeking transfer of the case, which is presently pending on the file of Court of JMFC, Periyapatna to any Court of Metropolitan Magistrate at Bangalore, is that petitioners herein, who are accused 1 and 2 in C.C. No. 305/2012 are not able to secure the services of local lawyer in Periyapatna, inasmuch as, the Bar having passed a resolution refusing to represent any of the accused in the said proceeding, for the reason that, the publication, which is taken out by petitioners 1 and 2 herein and the other respondents, who are presently deleted, is in depicting the Advocates in very bad light and imputing things against them, which are demeaning their status and their dignity. 8. Now let us analyse the relevant provisions of Section 407 of Cr.P.C., that under what circumstance transfer can be granted by this Court. Firstly, when fair and impartial enquiry or trial cannot be held in any criminal court subordinate thereto 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 transfer will tend to the general convenience of the parties or witnesses or is expedient for the ends of justice. In the instant case, there is no allegation or bias on the part of the Court. It is not the apprehension of petitioners that the Court at Periyapatna is prejudiced against petitioners and they may not get a fair trial at the hands of Court of JMFC at Periyapatna. It is also not their case that some question of law of unusual difficulty is likely to arise or it is not even for the general convenience of the parties or witnesses, it is required to be transferred to expedite the proceeding to meet the ends of justice. Here, the only party who is seem to be aggrieved is petitioners, for the reason, they apprehend in not getting the assistance of local lawyers would come in the way of their case being represented on day-to-day basis effectively. 9. This Court is not inclined to accept this as valid ground for transfer, for the simple reason that, Periyapatna is admittedly a small Mofussil place with handful of Advocates practicing there. 9. This Court is not inclined to accept this as valid ground for transfer, for the simple reason that, Periyapatna is admittedly a small Mofussil place with handful of Advocates practicing there. Even assuming that, there is some resistance on the part of the members of Bar not accepting brief on behalf of petitioners or other respondents to this proceeding, who are accused 3 to 14 in criminal proceeding, it is not difficult for the petitioners either to secure services of a lawyer from nearby District place or for that matter from Bangalore or from other places. The very fact that petitioners are able to secure the services of present counsel to file a petition seeking transfer of proceeding from Periyapatna to any other Court in the City of Bangalore, would demonstrate that it is not as if no lawyer is willing to appear for them. It is not even their case that they may not able to secure the presence of witnesses and the trial may be hampered. The resolution, which is stated to have passed by the Bar of Periyapatna, according to petitioners, is only to the effect that local lawyers are not willing to represent them at Periyapatna. It is not also their case that the passing of resolution is obstructing the very proceeding, which is initiated in C.C. No. 305/2012. In that view of the matter, this court feel that the apprehension of petitioners is without any basis, except the fact that they have faced with little difficulty in securing the services of a lawyer within the jurisdiction of the court at Periyapatna. Further, it is not a case where they are totally rendered helpless in getting the services of any lawyer to represent them. 10. Further, it is not a case where they are totally rendered helpless in getting the services of any lawyer to represent them. 10. Now with this background, if we analyse the judgments, which are relied on by the counsel for petitioners, it is seen that, in the first judgment, which was decided way back in the year 1965 in the matter of Gurcharan Dass Chadha vs. State of Rajasthan , reported in AIR 1966 SC 1418 , the Apex Court in fact has laid down the guidelines, which are to be looked in to by the Courts while considering the application under Section 407 of Cr.P.C., which is in the middle of paragraph 13 of the judgment and reads as under: A case is transferred if there is a reasonable apprehension on the part of a party to a case that justice will not be done. A petitioner is not required to demonstrate that justice will inevitably fail. He is entitled to a transfer if he shows circumstances from which it can be inferred that he entertains an apprehension and that it is reasonable in the circumstances alleged. It is one of the principles of the administration of justice that justice should not only be done but it should be seen to be done. However, a mere allegation that there is apprehension that justice will not be done in a given case does not suffice. The Court has further to see whether the apprehension is reasonable or not. To judge of the reasonableness of the apprehension the State of the mind of the person who entertains the apprehension is no doubt relevant but that is not all. The apprehension must not only be entertained but must appear to the Court to be a reasonable apprehension. 11. If the said analogy is to be applied to the case on hand, the apprehension as stated in Gurucharan Dass Chadha's case, referred supra, should appear to be a reasonable apprehension. However, in the instant case, it is seen that resistance is only by the local members of bar in representing the petitioners by passing a resolution and not in obstructing the entire proceeding or preventing the petitioners from securing the services of any counsel, even from outside (sic) district. Therefore, the judgment in Gurucharan Dass Chadha's case, would not endure to the benefit of petitioners. Therefore, the judgment in Gurucharan Dass Chadha's case, would not endure to the benefit of petitioners. In (sic) in Gurucharan Dass Chadha's case, the prayer of petitioners for the relief of transfer is dismissed. 12. Now coming to the second case, in the matter of Abdul Nazar Madani vs. State of T.N. and another, reported in AIR 2000 SC 2293 (1), the very same principles that are laid down in Gurucharan Dass Chadha's case, referred supra, are reiterated and in the result, the Apex Court has dismissed the petition, which was filed under Section 407 of Cr.P.C., for transfer. Therefore, this judgment also would not support the case of petitioners. In fact, these are the only two leading judgments, which are rendered by the Apex Court, where the provisions of Section 407 of Cr.P.C., are rightly appreciated in its right perception and the Apex Court even after explaining the guidelines, which are required to be followed and having found that the same is not the fact situation in the case on hand, has dismissed the petition in said judgments. 13. Now coming to the judgment in the case of Deepak Shukla vs. Smt. Savita Shukla, reported in 2003 Crl.L.J. 4020, by the High Court of Madhya Pradesh, here is the matter where the dispute is with reference to matrimonial matter, where the local lawyers and judges were relatives of one of the parties and therefore, the Court felt that possibility of accused not getting fair opportunity to defend himself, consequently, ordered for transfer, which is not the situation in the present case. So also in the case of Gulshan Malik vs. State of U.P. reported in 2002 Crl.L.J. 668 rendered by the High Court of Allahabad, which is with reference to the case of dowry harassment, where under similar circumstances transfer was ordered and similar is the situation in the case, which is decided by the Bombay High Court in the case of Rajendra Gandhi vs. State of Maharashtra & Anr., arising out of Crl. Appln. No. 1856/1998, disposed of on 17.10.1988. 14. Appln. No. 1856/1998, disposed of on 17.10.1988. 14. In that view of the matter, going by the ruling of Apex Court, in the aforesaid two matters, this Court find that in the present case also no grounds are made out to invoke the jurisdiction of this Court under Section 407 of Cr.P.C., to transfer the criminal case initiated by first respondent-complainant under Sections 499 and 500 of IPC against the petitioners herein as well as respondents 2 to 13 to be transferred to any Court of Metropolitan Magistrate at Bangalore city. Accordingly, this criminal petition is dismissed.