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2019 DIGILAW 249 (AP)

G. Lakshmi Ganaeswara Rao v. State of A. P.

2019-09-24

U.DURGA PRASAD RAO

body2019
JUDGMENT : U. Durga Prasad Rao, J. 1. In this Transfer Criminal Petition, filed under Section 407 of Cr.P.C., the petitioners seek to withdraw the Criminal Appeal No. 11 of 2018, pending on the file of learned Additional District and Sessions Judge, Vizianagaram, and transfer the same to the High Court of Andhra Pradesh to hear along with the Criminal Appeal No. 1622 of 2018 in the interest of justice. 2. Petitioners herein are accused Nos. 1 to 3 in S.C. No. 77 of 2011 on the file of learned Assistant Sessions Judge, Vizianagaram. After full-fledged trial, the learned Assistant Sessions Judge, convicted them for the offences under Sections 307 and 353 R/w. 34 of IPC, vide its judgment dated 19.02.2018. Accused Nos. 2 and 3 were convicted and sentenced to suffer Simple Imprisonment for 7 years and also to pay a fine of Rs. 5,000/- each for the offence under Section 307 R/w. 34 of IPC and they were further sentenced to pay a fine of Rs. 5,000/- each for the offence under Section 353 R/w. 34 of IPC. Since accused No. 1 was absent on the date of judgment, NBW was issued, subsequently he was arrested and produced and sentence was pronounced against him, wherein he too was imposed with same sentence as that of accused Nos. 2 and 3. 3. While so, it appears accused Nos. 2 and 3 preferred Criminal Appeal No. 11 of 2018 before the learned Additional District and Sessions Judge, Vizianagaram and obtained suspension of sentence and bail and the said Appeal is pending. Later, accused No. 1 filed Criminal Appeal No. 1622 of 2018 directly before this Court and also obtained suspension of sentence and bail and the Criminal Appeal is pending. Now, all these petitioners filed this transfer application stating that since two appeals arising out of the same judgment are pending in two different Courts i.e., before the Additional District and Sessions Judge, Vizianagaram and this High Court and as there is possibility of arriving at conflicting judgments, to obviate the same, Criminal Appeal No. 11 of 2018 pending on the file of learned Additional District and Sessions Judge, Vizianagaram may be transferred to this Court to hear along with Criminal Appeal No. 1622 of 2018. 4. Heard learned counsel for the petitioners and learned Additional Public Prosecutor. 5. 4. Heard learned counsel for the petitioners and learned Additional Public Prosecutor. 5. Learned counsel for the petitioners would submit that to avoid conflicting judgments by different Courts, Criminal Appeal No. 11 of 2018 may be transferred from the Additional District and Sessions Judge, Vizianagaram to this High Court. 6. Learned Additional Public Prosecutor would argue that since the sentence passed against all the accused is only up to 7 years for the offence under Section 307 IPC, the Appeal under Section 374 Cr.P.C. is maintainable before the Sessions Court and instead the 1st petitioner/accused No. 1 has preferred a separate Appeal before this Court. He, however, would admit that it is trite law that both the appeals should be heard by one Court to avoid the conflicting judgments. 7. As rightly submitted by learned Additional Public Prosecutor, since the maximum sentence passed against the Petitioners in S.C. No. 77 of 2011 by the learned Assistant Sessions Judge, Vizianagaram is 7 years, Criminal Appeal is maintainable in the Court of Sessions. However, 1st petitioner/accused No. 1 filed Criminal Appeal No. 1622 of 2018 before this Court and petitioner Nos. 2 and 3/accused Nos. 2 and 3 preferred Criminal Appeal No. 11 of 2018 before the learned Additional District and Sessions Judge, Vizianagaram. Be that it may, the possibility of conflicting judgments cannot be ruled out. Therefore, to avoid such an unpleasant eventuality, it is imperative that both the Appeals should be heard by the same Court. 8. Considering the same, this Transfer Criminal Petition is allowed. Accordingly, Criminal Appeal No. 11 of 2018, pending on the file of learned Additional District and Sessions Judge, Vizianagaram, is withdrawn and transferred to the High Court of Andhra Pradesh to be heard along with the Criminal Appeal No. 1622 of 2018. The Registry shall take necessary steps in this regard. 9. As a sequel, miscellaneous petitions pending, if any, in this case shall stand closed.