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2015 DIGILAW 727 (KAR)

ARAVIND S. MANGANI v. STATE OF KARNATAKA

2015-07-09

A.N.VENUGOPALA GOWDA

body2015
ORDER : The present petition is filed under S.407 of Cr.P.C., 1973, for withdrawal of the case in Spl.C.C.No.466/2014 pending on the file of II Addl. District and Sessions Judge, Tumakuru/Special Judge, designated to try cases under Prevention of Corruption Act, 1988 and for transfer to the Court of Prl. District and Sessions Judge/Special Judge, designated to try the cases under the Prevention of Corruption Act, 1988 (for short ‘the Act’) at Kalaburagi, for conducting the trial. 2. The petitioner was working as Deputy Commissioner (Excise) at Tumakuru. That on 10.08.2011, Superintendent of Police, Karnataka Lokayuktha, Tumakuru having registered FIR in Crime No.12/2011 for the offences punishable under Ss.13(1)(e) read with S.13(2) of the Act, conducted raids and after completion of the investigation, filed charge sheet against the petitioner for the offences punishable under Ss.13(1)(e) read with S.13(2) of the Act, before the Special Judge, designated to try the offences under Prevention of Corruption Act, 1988 i.e., II Addl. District and Sessions Judge, Tumakuru. The case was registered as Spl.C.C.No.466/2014 and is at the stage of Hearing Before Charge. 3. The petitioner having attained the age of superannuation, has retired from service on 28.02.2015 and settled at Kalaburagi City, which is at a distance of about 590 Kms. from Tumakuru. 97 witnesses have been cited in the charge sheet by the prosecution. Out of them, 70 are from Kalaburagi, Bidar, Yadagiri, Alanda, Raichur, Koppal, Kolhapur and Dharwad, which are at a near distance to Kalaburagi, than from Tumakuru. Out of the remaining 27 witnesses, some are officials of the Lokayukta Police, Tumakuru and one witness is from Udupi and some witnesses are from Bengaluru. On the ground of expediency, the petition was filed for the said relief. 4. Sri S.K. Venkata Reddy, learned advocate, contended that the trial of the case at Tumakuru, being more expensive to prosecution and inconvenient to the witnesses and the accused, trial of the case at Kalaburagi, being expedient, the petition may be allowed. In support of the petitioner’s case, he placed reliance on the decisions in MRUDUL M.DAMLE AND ANOTHER Vs. CENTRAL BUREAU OF INVESTIGATION, NEW DELHI, 2012 (5) SCC 706 and ABDUL NAZAR MADANI Vs. STATE OF T.N. AND ANOTHER, 2000(6) SCC 204 . 5. Sri Venkatesh P. Dalwai, learned advocate, appearing for the respondent, on the other hand, by relying upon the decision in BALJITH SINGH AND ANOTHER Vs. CENTRAL BUREAU OF INVESTIGATION, NEW DELHI, 2012 (5) SCC 706 and ABDUL NAZAR MADANI Vs. STATE OF T.N. AND ANOTHER, 2000(6) SCC 204 . 5. Sri Venkatesh P. Dalwai, learned advocate, appearing for the respondent, on the other hand, by relying upon the decision in BALJITH SINGH AND ANOTHER Vs. STATE OF J. & K. AND OTHERS, AIR 1982 SC 1558 , contended that merely because large number of witnesses are from Kalaburagi and near about places, cannot be a ground to permit transfer. He submitted that this petition being not bonafide may be disallowed. 6. Considered the rival contentions and perused the record. 7. 97 witnesses have been cited in the charge-sheet to prove the alleged offence punishable under Ss.13 (1)(e) read with S.13(2) of the Act. A chart showing the distance between Tumakuru to the place of witnesses and Kalaburagi to the place of witnesses, filed by Sri S.K. Venkata Reddy and not disputed by Sri Venkatesh P. Dalwai, shows the following: TUMAKURU TO IN kms WITNESSES KALABURAGITO IN Kms KALABURAGI 548 45 KALABURAGI 000 BIDAR 727 7 BIDAR 114 YADAGIRI 492 5 YADAGIRI 98 ALAND 584 5 ALAND 45 RAICHUR 451 5 RAICHUR 160 KOPPAL 281 1 KOPPAL 248 KOLHAPUR 852 1 KOLHAPUR 363 DHARWAD 379 1 DHARWAD 357 8. S.407 of Cr. P.C., empowers this Court to transfer cases and appeals from a Criminal Court subordinate to any other such Criminal Court of equal or superior jurisdiction. The convenience of the parties including the witnesses to be produced at the trial is relevant consideration therefor. In Abdul Nazar Madani (supra), Apex Court has categorically held that before an order of transfer is effected, the convenience, not only of the petitioner, but also the prosecution, other accused, if any and witnesses should also be taken into consideration. 9. In Mrudul M. Damle (supra), the petitioners were husband and wife and both were being prosecuted for the offence punishable under Ss.13(1)(e) and 13(2) of the Act read with S.109 of Cr.P.C. Charge sheet was filed before the Special Judge, CBI Cases, New Delhi. Charge sheet enlisted 92 witnesses to prove the prosecution case, out of whom, 88 were from State of Maharashtra, most of them being either from Thane, Mumbai or Navi Mumbai Districts, while some were from Pune or Satara Districts of that State. Remaining 4 witnesses were from Delhi. Charge sheet enlisted 92 witnesses to prove the prosecution case, out of whom, 88 were from State of Maharashtra, most of them being either from Thane, Mumbai or Navi Mumbai Districts, while some were from Pune or Satara Districts of that State. Remaining 4 witnesses were from Delhi. Transfer of the case was sought on the ground of inconvenience in traveling from Maharashtra to Delhi by witnesses and the accused. Considering the fact that CBI is equipped with office at Mumbai and the Court handling the CBI cases is established at Thane also and being of the view that transfer of the case would not cause any hardship to the prosecution, while allowing the petition and transferring the case from New Delhi to the Court of Special Judge, CBI Cases, Court of Sessions at Thane, Maharashtra, it has been held as follows: “19. There is no gainsaying that a trial at Delhi in which witnesses are expected to travel from Maharashtra is bound to linger on for years. Expeditious disposal of the trial is also a facet of fairness of the trial and speedy trial is in fact a fundamental right as observed by this Court in Hussainara Khatoon (1) v. State of Bihar, (1980) 1 SCC 81 .When witnesses from distant places are sought to be summoned, early conclusion of the trial becomes much more difficult apart from the fact that the prosecution will have to bear additional burden by way of travelling expenses of the official and non-official witnesses summoned to appear before the Court.” 10. In Baljith Singh (supra), transfer of the case from Jammu to Srinagar was allowed by the High Court, on the sole ground that most of the witnesses, who belong to Jammu have already been examined by the Trial Court and that only one witness from Kashmir Division remained to be examined. The order having been assailed, by taking note of the said circumstance of the case, Apex Court held, that the approach to the matter was incorrect, since another application filed for transfer of the case, had already been rejected, though at that stage, same ground for transfer was put forth. The decision having been rendered on the peculiar circumstances of the case, has no application to the instant case. The present case being identical to the decision in Mrudul M. Damle (supra), this petition is liable to be allowed. The decision having been rendered on the peculiar circumstances of the case, has no application to the instant case. The present case being identical to the decision in Mrudul M. Damle (supra), this petition is liable to be allowed. In the result, the petition is allowed and Spl.C.C.No.466/2014 pending on the file of II Addl. District and Sessions Judge, Tumakuru is withdrawn and transferred to the Court of Special Judge, designated to try cases under the Act, at Kalaburagi. The record of the case shall be forthwith transferred to the transferee Court, which shall take up the matter and decide the same with expedition.