Gujarat High Court
Shankarbhai Mansukhbhai Bariya vs State Of Gujarat on 31 January, 2017
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/SCR.A/9510/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION (DIRECTION) NO. 9510 of 2016
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SHANKARBHAI MANSUKHBHAI BARIYA....Applicant(s)
Versus
STATE OF GUJARAT....Respondent(s)
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Appearance:
MR I H SYED, ADVOCATE FOR PRITHU PARIMAL, ADVOCATE for the
Applicant(s) No. 1
MS NISHA THAKORE, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 31/01/2017
ORAL ORDER
1. This application under Section 407 of the Cr.P.C. is at the instance of an accused of the Special (ACB) Case No.8 of 2010 pending in the Court of 2nd Additional Sessions Judge, Panchmahals at Godhra praying for the following reliefs:
"(A)Your Lordships may be pleased to allow and admit the present petition.
(B) Your Lordships may be pleased to issue writ of mandamus or any other writ, order or direction to transfer the Special (ACB) Case No.08 of 2010 from the Hon'ble Special (ACB) Court and 2nd Add. Sessions Court, Panchmahal to the any other Hon'ble Sessions Court, Panchmahal.
(C) Your Lordships may be pleased to direct the Hon'ble Special (ACB) Court to give an opportunity to the petitioner to make oral/final arguments in connection with the Special (ACB) Case No.08 of 2010 (D) Your Lordships may be pleased to direct the Hon'ble Special (ACB) Court not to deliver the final judgment and order till the final disposal of the present petition in connection with the Special (ACB) Case No.8 of 2010 (E) Your Lordships may be pleased to pass any other order/s or directions in the interest of justice"
2. On 16.12.2016, the following order was passed:
Page 1 of 5HC-NIC Page 1 of 5 Created On Thu Feb 02 03:44:53 IST 2017 R/SCR.A/9510/2016 ORDER "Leave to amend the prayer clause. The amendment shall be carried out forthwith.
Let Notice be issued to the respondents, returnable on 29/12/2016. Ms. Thakore, the learned Additional Public Prosecutor waives service of notice for and on behalf of the respondent.
The Registry is directed to call for the report of the learned Special Judge who is Incharge of the Special (ACB) Case No.08 of 2010 as regards the averments made in this application seeking transfer of the case under Section407 of the Cr.P.C. In the meantime, let there be an adinterim order in terms of para10(D).
Direct service today is permitted.
The Registry is directed to communicate this order by Fax forthwith to the Court concerned including to the Principal District Judge, DistrictPanchmahals."
3. On 29.12.2016, the following order was passed:
"1 Pursuant to the order passed by this Court dated 16th December 2016, the 2nd Additional Sessions Judge, Panchmahals at Godhra has forwarded his report dated 22nd December 2016. I take notice of the fact that in para 7(C) of the grounds raised in the petition, the following has been averred:
"Because, the Rojkam of the present case was manipulated as the online case status reflects the date of 30.11.2016, whereas the certified copy of the Rojkam reflects only 07.12.2016 after 18.11.2016. It is submitted that the matter was kept for pronouncement of judgment on 30.11.2016 after the conclusion of oral arguments on 18.11.2016 which is evident from the online case status of the present case whereas the Rojkam reflects contrary online case status.
2 The explanation offered by the Presiding Officer concerned as regards the averments made in ground No.7(c) is as under:
"So, far grounds No.C is concerned as I have taken charge on dt.5.12.2016 I can not say any thing about online status of the present case."Page 2 of 5
HC-NIC Page 2 of 5 Created On Thu Feb 02 03:44:53 IST 2017 R/SCR.A/9510/2016 ORDER 3 The learned counsel appearing for the writ applicant has also invited my attention to an application Exhibit: 118 dated 16th December 2016 and the order passed by the Presiding Officer on the very same date.
4 I am not satisfied or rather convinced with the explanation offered as regards the averments made in ground No.(C). The Presiding Officer shall elaborately explain the allegation levelled by the writ applicant herein as regards the interpolation in the Rozkam. The Presiding Officer shall also explain as to in what circumstances the order below Exhibit: 117 came to be passed by him. I am saying so because it is submitted before me that no sooner this Court passed the order dated 16th December 2016, then the same was communicated to the Presiding Officer, but the Presiding Officer declined to take notice of the order passed by this Court and passed an order below Exhibit:
117 running about 11 pages.
5 Further explanation of the concerned Court shall be called for at the earliest by the Registry.
6 Post the matter on 31st January 2017. The interim order granted earlier to continue."
4. The concerned Presiding Officer has offered his further explanation in the form of a report dated 16.01.2017.
5. I take notice of the fact that this application under Section 407 of the Cr.P.C. could not have been filed directly before this Court without preferring an application for such transfer first before the Sessions Judge. It is only if the Sessions Judge rejects an application, the accused can come before this Court. In the case at hand, the transfer of the Special Case is sought for from one court to the other court in the same sessions division.
6. Section 407 of the Cr.P.C. reads as under:
"407. of High Court to transfer cases and appeals-(1) Whenever it is made to appear to the High Court-
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R/SCR.A/9510/2016 ORDER
(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, 991 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"
7. Mr. Syed, the learned counsel appearing for the applicant, submits that he would immediately prefer an application before the Sessions Judge, and , if it is rejected, he can come before this Court, but the problem is that the matter has reached to the stage of pronouncement of the judgment and no sooner the relief is vacated by this Court, then the Page 4 of 5 HC-NIC Page 4 of 5 Created On Thu Feb 02 03:44:53 IST 2017 R/SCR.A/9510/2016 ORDER judgment would be pronounced by the concerned court and such pronouncement would frustrate the entire cause.
8. I permit Mr. Syed, the learned counsel to withdraw this application with liberty to file an appropriate application before the Principal Sessions Judge for transfer of the case from one court to the other in the same sessions division. The writ applicant shall file an appropriate application at the earliest. If any, such application is filed, the Sessions Judge shall look into the same at the earliest and pass an appropriate order upon the same in accordance with law. If an application is filed under Section 407 of the Cr.P.C. before the Sessions Judge on or before 03.02.2017, the Sessions Judge shall pass appropriate orders in accordance with law on or before 10.02.2017. Till the pronouncement of the order by the learned Sessions Judge, the court concerned shall not pronounce the judgment in the Special (ACB) Case No.8 of 2010.
9. In the event, if the application is rejected by the Sessions Judge, it shall be open for the learned counsel to pray for appropriate extension of the interim relief granted by this Court.
10. It will be open for the Sessions Judge to look into the two reports forwarded by the Presiding Officer to this Court.
11. With the above, this application is disposed of. Direct service is permitted.
(J.B.PARDIWALA, J.) ABHISHEK Page 5 of 5 HC-NIC Page 5 of 5 Created On Thu Feb 02 03:44:53 IST 2017