Research › Search › Judgment

Meghalaya High Court · body

2016 DIGILAW 46 (MEG)

State of Meghalaya v. Centre Doloi

2016-11-03

VED PRAKASH VAISH

body2016
JUDGMENT : V.P. VAISH, J. 1. This transfer petition bearing TR. P.(CRL.) No. 2 of 2016 under Section-407 of the Code of Criminal Procudure, 1973 (for short 'Cr.P.C.') has been filed by the petitioners, State of Meghalaya praying that Session Case No. 149 of 2015 corresponding with Nongpoh P.S. Case No. 28 (1) 2015 under section 306 I.P.C. may be transferred to any court of competent jurisdiction. 2. The CRL. M.C. No. 23 of 2016 has been registered on the basis of letter dated 05.09.2016 sent by Spl. Superintendent of Police, (CID), Meghalaya stating therein that the learned Sessions Judge, Nongpoh has observed in his order dated 12.07.2016 that Special Public Prosecutor is related to him and he has recused himself from the case. It has also been indicated in the said letter that application was filed before the same judge for transferring of the case to Shillong whereupon, learned Sessions Judge, Nongpoh has observed that he has no power to order for such transfer and the state counsel was instructed to withdraw the said petition. It was opined by the learned counsel for the State that appropriate remedy was to approach the High Court under Section-407 of the Cr.P.C. for transfer of the Session Case. 3. Since both the petitions are between the same parties and involve similar question i.e. transfer of Session Case No. 149 of 2015 corresponding with Nongpoh P.S. Case No. 28 (1) 2015 under section 306 I.P.C., both petitions are disposed of by this common order. 4. Notices of the petitions were issued to the respondents on 07.10.2016. The steps were not taken by prosecution for service of notice. Again, notices were issued on 17.10.2016. As per office report, notices were issued to the respondents by registered post, however, AD cards were awaited. On 24.10.2016, Mr. S. Kumar, learned counsel entered appearance on behalf of respondent No. 5 and vakalatnama on behalf of respondent No. 5 was filed. 5. On 24.10.2016, Mr. N.D. Chullai, learned senior GA submitted that dasti notices were seved on all the respondents and sought time to file affidavit in this regard. An affidavit of superintendent of Police (City), East Khasi Hills District and the supervisor of SIT was filed on 27.10.2016. 5. On 24.10.2016, Mr. N.D. Chullai, learned senior GA submitted that dasti notices were seved on all the respondents and sought time to file affidavit in this regard. An affidavit of superintendent of Police (City), East Khasi Hills District and the supervisor of SIT was filed on 27.10.2016. In the said affidavit it is stated that dasti notices were served on respondents No. 2, 3 and 4 on 20.10.2016, notice was served to respondent No. 1 on 21.10.2016 and notice to respondent No. 5 was served on 22.10.2016. Acknowledgement regarding service of notices to respondents No. 1 to 5 have been filed along with the said affidavit. 6. No one appears on behalf of respondents No. 1 to 4 despite pass over. However, Mr. S. Kumar, learned counsel appears on behalf of respondent No. 5. 7. Mr. S. Kumar, learned counsel appearing on behalf of respondent No. 5 submits that he has no objection if the case bearing Session Case No. 149 of 2015 is transferred to any other district. 8. At the outset, it may be mentioned that I am conscious that in terms of the proviso to Sub-section (2) of Section-407 Cr.P.C., an application for transfer of case under Section-407 Cr.P.C. is not maintainable unless the application for such transfer has been made to the Sessions Judge and its rejection. But in the present case, learned Sessions Judge, Nongpoh has recused himself from this case. Moreover, according to the petitioner an application for transfer of the case was filed before the learned Sessions Judge, Nongpoh which was withdrawn by the counsel for State. 9. It is evident from the record that learned Sessions Judge, Nongpoh has recused from the Session Case No. 149 of 2015 on the ground that Public Prosecutor appointed in the case is related to him. Thus, it was not appropriate for him to try the present case. Even otherwise, learned counsel for respondent No. 5 has no objection if the case is transferred to Sessions Judge in any other District. 10. Thus, it was not appropriate for him to try the present case. Even otherwise, learned counsel for respondent No. 5 has no objection if the case is transferred to Sessions Judge in any other District. 10. Considering the facts and circumstances of the case and for the reasons stated above, Session Case No. 149 of 2015 corresponding with Nongpoh P.S. Case No. 28 (1) 2015 under section 306 I.P.C. is withdrawn from the court of learned Sessions Judge, Nongpoh and transferred to the Court of learned Sessions Judge, Jowai who may be requested to proceed with the trial as expeditiously as possible, in accordance with law. 11. Both the parties are directed to appear before the learned Sessions Judge, Jowai on 10th November, 2016. 12. The record of Sessions Case No. 149 of 2015 be sent accordingly. 13. A copy of this order be sent to learned Sessions Judge, Jowai. 14. Both the petitions stand disposed of accordingly.