Gujarat High Court
Pranav Mahendrabhai Patel vs Budhabhai Popatbhai Chunara & 2 on 12 December, 2014
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/CR.MA/18396/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR TRANSFER) NO. 18396 of 2014
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PRANAV MAHENDRABHAI PATEL....Applicant(s)
Versus
BUDHABHAI POPATBHAI CHUNARA & 2....Respondent(s)
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Appearance:
MR NITIN M AMIN, ADVOCATE for the Applicant(s) No. 1
DS AFF.NOT FILED (N) for the Respondent(s) No. 1 - 2
MR ALKESH N.SHAH, APP for the Respondent(s) No. 3
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 12/12/2014
ORAL ORDER
Rule returnable forthwith. Mr.A.N.Shah, the learned APP waives service of rule for and on behalf of the respondent no.3
- State of Gujarat. The respondent nos.1 and 2 although served with the notice issued by this Court, yet have not chosen to appear and oppose this petition either in person or through an advocate. On 17th November 2014, this Court had issued notice to the respondents, making it returnable on 11 th December 2014.
By this application under section 407 of the Code of Criminal Procedure, 1973, the petitioner has prayed for the following reliefs :
"(a) To transfer the proceedings of CR.MA 338/2009 pending before the Magistrate at Dholka to any Page 1 of 19 R/CR.MA/18396/2014 ORDER other court at Matar or Kheda or Nadiad Magistrate Court of Kheda District;
(b) To stay the further proceedings of Criminal Misc.
Application No.338/2009 pending before the Judicial Magistrate First Class at Dholka, Ahmedabad (Rural) during the pendency and final disposal of this application;
(c) To call for the record and proceedings of CR.MA 338/2009 pending before the Magistrate at Dholka forthwith by a special messenger during the pendency and final disposal of this application;
(d) To pass any other appropriate order that is found necessary in the interest of justice."
The case of the petitioner may be summarized as under :-
The respondent no.1 filed an application under Section 13 of the Registration of Birth & Death Act, 1968 (for short "the Act, 1968") on 11th September 2009 in the Court of the learned JMFC at Dholka for the purpose of getting the death of his deceased father Popatbhai Mafabhai Chunara registered after a period of almost 24 years 4 months and 27 days.
It appears that the father of the respondent no.1 had passed away on 15th April 1988. The application filed by the respondent no.1 is numbered as Criminal Misc. Application No.338 of 2009 and is pending as on today in the Court of the learned Principal Civil Judge and JMFC, Dholka.
The petitioner prays for transfer of the proceedings of the Criminal Misc. Application No.338 of 2009 to any court of other Sessions Division as, according to the petitioner, he is not Page 2 of 19 R/CR.MA/18396/2014 ORDER likely to get a fair and impartial inquiry in the matter.
Let me put the case of the petitioner as averred by him in this petition in his own words :
"2. Respondent-1 has joined only the Chief Officer of Dholka Nagarpalika as the sole opponent and no public notice or newspaper publication was ever published. No notice or intimation or information is given to any of the defendants of the Civil Suit No.274/2010 mentioned in paragraph 3 below till this date. It appears that no advocate was engaged or appeared during the said proceedings.
3. In the proceedings of the said application the applicant (respondent-1) and his sister Madhuben and his neighbor Premchand and one Bharat who was the employee of respondent-2 were examined. It appears that respondent-2 did not appear in the said proceedings. No witness was cross examined by any one and even the Magistrate did not put a single question to verify the truthfulness or otherwise of the applicant's say that date of his father's death truthfully was 15.04.1998 and as to why the application for registering his death was filed after a delay of more than 21 years. The Magistrate mechanically passed the order on 16.12.2009 to register the date of death being 15.04.1988 of the father of respondent-1 as asked by respondent-1.
4. After the above order, respondent-1 and his family members filed a Special Civil Suit No. 274/2010 in the Court of the Principal Civil Judge (SD) of Ahmedabad (Rural) district against 32 defendants on 26.04.2010 through their general power of attorney holder one Rohit Dharabhai Bharvad residing at Ghatlodia, Ahmedabad praying that the sale document registered at Sr. No. 4556 on 09.03.1989 executed by Popatbhai Mafabhai (the deceased father of respondent-1) and his three sisters selling the land bearing S. No.705 admeasuring Acre-2 Guntha-00 (out of A-2, G-17) of village Makarba Taluka: Dascroi, District: Ahmedabad to defendant-1 Dashrathbhai Khodabhai Patel of this suit, who had in his turn sold the said land to defendants-2 to 7, who in their Page 3 of 19 R/CR.MA/18396/2014 ORDER turn had sold the said land by registered one document to defendants-8 to 27 and by second document to defendants-28 to 32 for declaration that the above said sale deed are null and void. The petitioner is defendant-
20 of the said civil suit.
5. Respondent-1 prayed for appointment of Commissioner in the said civil suit and the Commissioner who was coming for making the panchnama informed the defendants about the filing of the said civil suit.
6. On knowing about the filing of such a false civil suit on the basis of dishonestly and falsely and with oblique and criminal motive obtained the death certificate showing falsely that the father of respondent-1 had expired on 15.04.1988 a year before the execution of the said sale deed. The defendants appeared in the suit which is pending at present without any progress.
7. Immediately thereafter the petitioner filed CR.RA No. 84 of 210 in the Sessions Court to get quashed the order of the Magistrate dated 16.12.2009 ordering to register the date of death of the father of respondent-1 as 15.04.1988 as being obtained by fraud. The Sessions Court by the order dated 23.02.2011 rejected it on the ground that it being a revision application he can not disturb the order of the lower court.
8. The petitioner hence challenged the said orders by SCR.A 1285/2011 before this Hon'ble Court and by the order dated 31.01.2012 the Hon'ble Court quashed the orders of both the lower courts and remanded the matter to the Magistrate at Dholka to decide a fresh the application in accordance with the directions and guidance issued by the High Court in the case of Karimabibi wd/o Gulammohammad v/s Ankleshwar Municipality and others reported in AIR 1998 Guj 42 after according appropriate opportunity to the petitioner and other affecting parties if any.
9. It is humbly stated that till today the Magistrate at Dholka has not issued or served a single notice or information or intimation to any of the thirty two defendants of the said suit who are the owners of the land of the said suit, in spite of mentioning of their names in the said civil suit mentioned in the judgment of the Page 4 of 19 R/CR.MA/18396/2014 ORDER High Court. The names and addresses of those 32 defendants (owners) are appearing in the application dated 06.01.2014 given by respondent-1.
10. Hence thereafter, the petitioner appeared before the Magistrate at Dholka on 27.02.2012 and submitted an application that this case be taken on board and that he wants to give his evidence. The petitioner with his application produced 21 documents with is list on the same day i.e. on 27.02.2012.
11. Thereafter the matter was adjourned for several dates and with great in convenience the applicant- respondent-1 was served with the notice of this matter. Respondent-1 appeared before the Magistrate at Dholka and since then to this date respondent-1 surfaces unexpectedly and occasionally on some dates of hearing and for next few other dates he remains absent and nobody asks for adjournment on his behalf but the Magistrate on his own accord goes on adjourning this matter as he pleases without the petitioner asking for an adjournment. A significant feature of these proceedings is that instead of dismissing this application on the ground of absence of respondent-1 the Magistrate at Dholka waits for the appearance and arrival of him and adjourns the hearing of the proceedings for next two, three or four dates without any request from anybody to accommodate the arrival and appearance of respondent-
1.
12. The Magistrate has adopted the procedure as per his wishes and pleasure to conduct or not to conduct the proceedings before him on the dates of hearings. Firstly the Magistrate at Dholka asks respondent-1 to produce his evidence cautioning him that if he would fail to produce his evidence he would close the stage of production of his evidence. Thereafter he waits for two, three or four dates of hearing on which dates the respondent-1 did not appear. And hence thereafter the Magistrate closed the stage of producing evidence by respondent-1 because of his not appearing or producing any evidence.
13. After closing the stage of evidence for respondent- 1, the Magistrate, Dholka asked the petitioner to produce his evidence which the petitioner did. Thereafter on Page 5 of 19 R/CR.MA/18396/2014 ORDER 30.06.2014 the p0etitioner gave his purshish that he does not want to examine any further witness.
14. The petitioner patiently waited till 14.08.2014 i.e. nearly about two months for the Magistrate at Dholka to pass the only unavoidable order dismissing the application dated 11.09.2009 filed by respondent-1 to no avail.
15. Ultimately on 14.08.2014 the petitioner submitted an application to the Magistrate at Dholka, urging that this proceedings are unnecessarily dragged for a very long period and the petitioner does not understand by what procedure the Court is conducting this proceedings. The petitioner also urged that under Order 9 Rule 7 of the Code of Civil Procedure 1908 and Section 256 of the Code of Criminal Procedure 1973, if the plaintiff or the complainant does not remain present the suit or the complaint is required to be dismissed and in this case respondent-1 remains absent for several dates of hearing and the petitioner has to idly attend the court up to 6 p.m. and the court is then adjourning the matter and urged that even today i.e. on 14.08.2014 respondent-1 has remained absent and the petitioner has to attend the court from Ahmedabad on each date and avoidably spending expenses and he does not want any further adjournment.
16. Even after the said application (Annexure-E) and asking for the certified copy of it and the order passed under it is not supplied to the petitioner till today. In the circumstances and the background of this matter the petitioner reasonably apprehends that the Magistrate at Dholka may be waiting for the arrival of respondent-1.
17. The petitioner had often requested the Magistrate at Dholka to dismiss the application of respondent-1 as he was absent and rarely appears at his convenience and to follow the procedure prescribed by the law. But the Magistrate at Dholka instead of so doing and following the procedure prescribed by the law has used to act as per his own arbitrary wish and pleasure and adjourned the proceedings for the arrival and appearance of respondent-1. This was directly and effectively caused injustice to the petitioner.
Page 6 of 19R/CR.MA/18396/2014 ORDER
18. The land of civil suit was sold for a consideration of Rs.1,10,000/- in the year 1989 but thereafter within two decades i.e. 2009 the market value of the said land crossed crores of rupees as the said land was brought within the limits of Ahmedabad Municipal Corporation and great developments were made in the villages of Makarba, Ghatlodia, Thaltej, Shilaj etc. which are all surrounding villages. A criminal conspiracy to grab the said land was hedged by the Bharvads with respondent-1 and his family members and for that purpose practicing a fraud obtained the death certificate showing that his father expired on 15.04.1988 before about one year of the execution of the sale deed was obtained collusively and the said civil suit was filed to obtain a declaration that the sale deed of the said land to 32 defendants was null and void. The names and addresses of these 32 defendants-owners are revealed by respondent-1 in his application dated 06/01/2014.
19. The petitioner humbly and respectfully submits that the Magistrate at Dholka is not aware or knowing that the procedure to decide an application under Section 13 of the Act should be similar or analogous to the procedure like one followed for deciding an application for maintenance under Section 125 of Cr.P.C. But the fact that in spite of the above background he is conducting this application in his own arbitrary wish or manner, contrary to the provisions of law and adjourns the date of hearing waiting for the arrival of respondent-1 and not dismissing it on the ground of his absence on several dates of hearing genuinely raises an apprehension in the mind of the petitioner that he will not get justice in the Court of the Magistrate at Dholka.
20. Apart from the above facts of this matter the petitioner has made several applications for obtaining certified copies of the documents on record, rojnama etc. and has deposited about Rs.1,000/- towards the cost for the same and has quoted relevant rules of Criminal Manual regarding certified copies, yet till today though several months have passed, there is no reply or intimation or receipt of the registered letters, applications and money orders made and sent to the Court of Magistrate at Dholka.
21. The petitioner has been constrained to make the Page 7 of 19 R/CR.MA/18396/2014 ORDER above averments with great respect and honour to the Court of the Magistrate at Dholka with apology and remorse only because of fear of not getting his valuable rights and property being harmed.
22. The record of CR.MA 338/2009 is, as the petitioner feels, not kept or recorded or numbered as required by the rules and practice adopted in judicial proceedings and the petitioner apprehends that if it is not called for urgently, it may not be as it should be as on today and hence the petitioner prays that the aid record may be urgently and immediately brought by a special messenger before this Hon'ble Court at the costs of the petitioner.
23. The petitioner, as is usual with almost all parties to a litigation before a judicial court had no courage to assert, argue and confront the Magistrate because of his usual timidity as a litigant not to do so for fear of losing the matter as a result of the prejudice of the Magistrate against him.
24. From the above reasons and background and the type of a kind of special and favourable treatment to respondent-1, the petitioner reasonably apprehends that he would not get justice from the Magistrate at Dholka and therefore is constrained to file this transfer application with a prayer to transfer the proceedings of CR.MA 338/2009 pending before the Magistrate at Dholka to any other court at Matar or Kheda which are very much near to the village of respondent-1 or at Nadiad Magistrate Court of Kheda district."
The most disturbing part of the averment is as contained in para-15 as noted above.
In the course of hearing of this matter, one additional affidavit has been filed by the petitioner, inter alia, stating as under :
"1. On 5th December, 2014 the applicant has received an envelop posted on 03.12.2014 at 13.22 hours containing a summons from the Court of the learned Page 8 of 19 R/CR.MA/18396/2014 ORDER Magistrate Dholka to appear on 12.12.2014 before the Court at Dholka in the concerned CR.MA 338 of 2009 with which a typed copy of an application in the name of the applicant without any date or signature thereupon.
2. The applicant is opponent-2 joined on the basis of an application dated 29/10/2013 praying for joining him as a party in the said matter which was allowed by the Magistrate at Dholka and hence the applicant is joined as opponent-2 in the proceedings.
3. The summons shows to have been issued on 27.11.2014 and the cover containing it shows that it is posted on 03.12.2014. Surprisingly all these events occurred after this Hon'ble issued notice in the matter and granted stay of further proceedings of CR.MA 388/2009 pending before the Magistrate at Dholka.
4. The said summons purported to be issued under Form V of the Code of Criminal Procedure, 1973 (the Code for short) meant for "Proclamation requiring the attendance of a witness". The applicant is not a witness but he is opponent-2. The said Form V relates to non service of a warrant required to be issued under Sections 82, 87 and 90 of the Code meant for an absconding person.
5. In view of the above facts and circumstances the applicant apprehends that if he would not appear before the Magistrate at Dhlka on 12.12.2014 as summoned a non bailable warrant for his arrest may be issued though this Hon'ble Court has stayed the proceedings before the Magistrate at Dholka."
In the wake of such serious allegations levelled by the petitioner, I had called for the report of the concerned Judicial Officer. The learned JMFC, Dholka, vide his report dated 6th December 2014 has the following to offer as his explanation :
"1. In the Court of Judicial Magistrate, First Class, Dholka, the Criminal Misc. Application No.338/2009 was decided on dt. 16/12/2009, and the said order was challenged in Criminal Revision Application No.84/2010 Page 9 of 19 R/CR.MA/18396/2014 ORDER by Pranavbhai Mahendrabhai Patel in the Hon'ble Court of Sessions, Ahmedabad (Rural), which was decided on dt. 23/02/2011 by rejecting the said Criminal Revision Application. And after that, petitioner Pranavbhai Mahendrabhai Patel has challenged both the orders of lower court by filing Special Criminal Application No.1285/2011 in the Hon'ble High Court of Gujarat, Ahmedabad, in which Hon'ble High Court has passed an order to quash the orders of both the lower courts and remanded the Criminal Misc. Application No.338/2009 with the directions to dispose of the said application in accordance with the directions and guidelines issued in the case of Karimabibi wd/o. Gulam Mohammad Mustufa Karodiawad and others Vs. Ankleshwar Municipality and others reported in AIR 1998, Gujarat 42 after affording appropriate opportunity of being heard to the petitioner and other affected parties, if any.
2. Thereafter, Pranavbhai Mahendrabhai Patel was appeared before this court and gave an application to take the Criminal Misc. Application No.338/2009 on board on dt.27/02/2012. But on that time, the original record and proceeding of the Criminal Misc. Application was in the Hon'ble Court of Sessions, Ahmedabad for the purpose of deciding the Criminal Revision Application no.84/10 and therefore, on that date, the matter could not taken on board. After that, on receiving the original record and proceeding of the Criminal Misc. Application No.338/2009, on dt.27/03/2012, this court has ordered to issue notice on dt.31/03/2012, to all concerned parties for the date fixed on dt.05/05/2012.
3. On dt.05/05/2012, only applicant Budhabhai Popatbhai Chunara appeared before this court and no other party appeared and therefore the case was adjourned for service of notice and appearance of the parties. So, during this time no parties were present before this court.
4. Thereafter, suddenly, Pranavbhai Mahendrabhai Patel appeared before this court on dt.22/10/2013 and gave an application vide exh.23 and prayed to dismiss the main application of Budhabhai Popatbhai Chunara, due to his absence. And on that application, this court has ordered to issue a notice to the applicant. And on service of that notice to the applicant, on dt.29/10/2013, Page 10 of 19 R/CR.MA/18396/2014 ORDER Budhabhai Popatbhai Chunara was appeared and on that date Pranavbhai Mahendrabhai Patel gave an application vide ex.28 to be joined as a party in Criminal Misc. Application No. 228/09 and the copy of the application was received by Budhabhai Popatbhai Chunara and he sought adjournment for gathering information and evidence and the same was granted. On next succeeding date, applicant Budhabhai Popatbhai Chunara gave an application seeking the adjournment to appoint a new advocate, which was granted for the last time. Thereafter, on next date 19/11/2013, applicant Budhabhai Popatbhai Chunara appeared with his Learned Advocate Ms.H.U.Rehvar and after hearing both the parties, on dt.19/11/2013, this court has passed an order below application vide ex.29 to join Pranavbhai Mahendrabhai Patel as opponent in this proceeding.
5. Thereafter, on dt.16/12/2013, applicant appeared again with his new advocate Mr.S.M.Kothari and the newly appointed advocate has sought the adjournment for case study, which was granted.
6. Thereafter, on dt.06/01/2014, the applicant has submitted the amended application as per the order below ex.28 and that time, copy of ex.19 & 20 was provided to the Learned Advocate of applicant, Mr.S.M.Kothari, and he gave an application seeking the adjournment on the ground to make submission on the ex.19 & 20, which was granted.
7. Thereafter, applicant Budhabhai Popatbhai Chunara gave applications for various reasons for adjournment on dt.17/01/2014,28/01/2014, 13/02/2014, 19/02/2014, which were granted. And on dt.04/03/2014, applicant Budhabhai Popatbhai Chunara gave an amendment application vide exh.44 by mentioning the name of 41 affected persons with prayer to register the death of deceased. And on that application Learned Advocate Mr.M.G.Amin, for Pranavbhai Mahendrabhai Patel, made an endorsement for seeking time to file objections before deciding the said application and time for the same was granted. Thereafter, the matter was frequently adjourned but no submission was made from either side on application at exh.44.
8. During this time, from the applicant side, on most Page 11 of 19 R/CR.MA/18396/2014 ORDER of the dates only applicant Budhabhai Popatbhai Chunara was appeared before this court but this criminal inquiry was not further proceeded as the learned advocate for applicant is not appeared before this court, and applicant has waited for his advocate's appearance and then writ petitioner, Pranavbhai Mahendrabhai Patel gave an application vide exh.46 to close the right of evidence of applicant and that application was ordered to be fixed for hearing as the learned advocate of applicant Budhabhai Popatbhai Chunara was not present on that day. Thereafter, on 24/06/2014, applicant Budhabhai Popatbhai Chunara, again, gave an adjournment application vide exh.47 to appoint a new advocate, which was granted for last time and time for two days was given to the applicant to make representation, with his advocate. But on the date of hearing he failed to do so, and therefore, in view of the submissions of Pranavbhai Mahendrabhai Patel and his learned advocate and considering the record of this criminal inquiry, on dt.26/06/2014, the applicant of ex.46 was granted and the right to produce evidence of the applicant was closed.
9. Thereafter, on dt.30/06/2014, Pranavbhai Mahendrabhai Patel has produced one affidavit on non- judicial stamp of Rs.100/- and also produced one list of documents vide ex.49 and on the same day i.e. dt.30/06/2014 (Third party) Pranavbhai Mahendrabhai Patel gave closing pursis vide ex.50.
10. Thereafter, this criminal inquiry was adjourned for arguments, but neither of the parties nor their advocate appeared before this court and thereafter, suddenly, on dt.14/08/2014, (Third party) Pranavbhai Mahendrabhai Patel appeared alone before this court and gave an application vide exh.51 to dismiss this criminal inquiry on the same day and in view of the record of this criminal inquiry, the detailed order passed for rejecting the application vide ex.51.
11. YOUR LORDSHIP, I further, humbly submit that:-
The Criminal Misc. Application no.338/2009 was remanded to this court, with a direction to dispose of the said application by order of Hon'ble High Court, dated 31/01/2012 in Special Criminal Application No.1285/2011 Page 12 of 19 R/CR.MA/18396/2014 ORDER and during the above mentioned proceedings, one interlocutory application vide ex.44 is still pending for filing the objections of the writ petitioner Pranavbhai Mahendrabhai Patel, as endorsed on the application by the learned advocate Mr.M.G.Amin and for hearing. In such circumstances, only by way of dismissal or dispose of this criminal inquiry, the interest of justice cannot be served and in view of the frequently changing circumstances, the adjournments were given in the large interest of justice.
Thereafter, on dt.06/09/2014, the applicant appeared with his advocate Mr.S.I.Saiyad and on dt.09/10/2014, the applicant gave an application vide ex.53 to re-open the right of evidence and this criminal inquiry is kept on service of process to the opponent of the said application.
Kindly accept my above report and highly oblige."
I may quote with profit the following observations made by this very Court in Criminal Misc. Application No.17081 of 2014, decided on 3rd November 2014 :
"Section 407 Cr.P.C. empowers the High Court to transfer cases and appeals in terms of the provisions incorporated therein. It will be interesting and profitable to refer to Section 407 Cr.P.C. in extenso, 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, it may order Page 13 of 19 R/CR.MA/18396/2014 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 of 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.
(3) Every application for an order under sub-section (1) shall be made by motion, which shall, except when the applicant is the Advocate-General of the State, be supported by affidavit or affirmation.
(4) When such application is made by an accused person, the High Court may direct him to execute a bond, with or without sureties, for the payment of any compensation which the High Court may award under sub-section (7).
(5) Every accused person making such application shall give to the Public Prosecutor notice in writing of the application, together with a copy of the grounds on which it is made; and no order shall be made on the merits of the application unless at least-twenty-four hours have elapsed between the giving of such notice and the hearing of the application.
(6) Where the application is for the transfer of a case of Page 14 of 19 R/CR.MA/18396/2014 ORDER appeal from any subordinate Court, the High Court may, if it is satisfied that it is necessary so to do in the interests of justice, order that, pending the disposal of the application, the proceedings in the subordinate Court shall be stayed, on such terms as the High Court may think fit to impose:
Provided that such stay shall not affect the subordinate Court's power of remand under section 309.
(7) Where an application for an order under sub-section (1) is dismissed, the High Court may, if it is of opinion that the application was frivolous or vexatious, order the applicant to pay by way of compensation to any person who has opposed the application such sum not exceeding one thousand rupees as it may consider proper in the circumstances of the case.
(8) When the High Court orders under sub-section (1) that a case be transferred from any Court for trial before itself, it shall observe in such trial the same procedure which that Court would have observed if the case had not been so transferred.
(9) Nothing in this section shall be deemed to affect any order of Government under section 197.
It is quite explicit on plain reading of the provisions of Section 407 of the Code of Criminal Procedure that if the High Court is shown or if it is spelt out to the satisfaction of the High Court that (i) a fair and impartial inquiry or trial cannot be had in any criminal court subordinate thereto; or (ii) that some question of law of unusual difficulty is likely to arise; or (iii) that some of the provisions of Criminal Procedure Code will require passing of such order for the convenience of the parties or witnesses; or (iv) it is in the expediency of the larger interest of justice, the High Court may pass order as incorporated under clauses (i) to (iv) of sub-section(1) of Section 407 of the Code of Criminal Procedure as quoted above.
A bare reading indicates that Section 407 enacted with a view to enable the parties to criminal cases to make an application for transfer in case that party apprehends that he cannot get fair and impartial enquiry or trial. The Page 15 of 19 R/CR.MA/18396/2014 ORDER elementary rule of interpretation is that 'Animus Imponentis' i.e. intention of law givers has to be ascertained. At the same time, there is another maxim 'Ut Res Magis Valeat Quam Pereat' which connotes that a statute or any enacting provision must be construed to make it more effective. (see AIR 1959 SC 356). The Parliament has employed the word fair and impartial trial with obvious object that accused should not be prejudiced. In common parlance, trial can be said to be fair if only when it is conducted with honesty. In other words, where it is free from injustice, prejudice and of favouritism. According to Collins Cobuild English Language Dictionary (Collins London and Glasgow 1987 Edition page 509), the word 'fair' means reasonable according to generally accepted standard about what is right and just. Next meaning given to the word 'fair' is that it gives the same or equal treatment to every one concerned. The law requires that an application for transfer can be moved when the applicant apprehends that he would not get equal treatment with the opposite party or that the personal feelings of the court would influence his judgment. The aforesaid provision emanates from a Latin maxim 'Actus Curiae Neminem Gravabit' which means that an act of the court shall prejudice no man. It is better to make a reference of American Jurisprudence (Volume 21, 2nd Edition para
415) which deals with the change of venue or scope of transfer application in criminal matters.
"The Courts are deemed to have inherent power to direct the change of venue in order that an accused may have fair and impartial trial. Change of venue can be had only upon some ground specified in the Statute. The right of the accused to a change of venue upon the ground of inability to obtain a fair trial in the country where the indictment is found or because of local prejudice and excitement is universally recognised. It is a fundamental principle of our law that every person charged with crime shall have a right to fair and impartial trial."
It is well settled position of law that where the accused has a reasonable apprehension that a fair and impartial trial or inquiry cannot be had or where the ends of justice make it expedient, transfer should be ordered. It is of paramount importance that party arraigned before the Page 16 of 19 R/CR.MA/18396/2014 ORDER Court should have confidence in the impartiality of the courts. It is equally well settled that it is a duty of the High Court at all events to clear away everything which might reasonably create suspicion and distrust in the courts and so to promote and maintain in the public a feeling of confidence in the administration of justice, which is so essential for social order and security. It is of the fundamental importance that justice should not only be done but should manifestly and undoubtedly be seen to be done. However, at the same time, it is necessary to bear in mind that it is not any and every apprehension in the mind of the accused that can be a ground for transfer, but it should be a reasonable apprehension which the High Court considered it reasonable for the accused as a reasonable person to entertain in the circumstances of the case. Even the absence of bias or prejudice, however, does not completely cover the issue. The question has to be considered from the point of view of the fear or apprehension in the mind of the accused and whether the High Court considers that the accused as a normal and reasonable person could reasonably entertain the fear or apprehension in the circumstances complained of."
The Court has to consider not only the question, whether there has been any real bias in the mind of the Magistrate against the applicant, but also the additional question whether the incidents may have happened which, though they may be susceptible of explanation and may have happened without there being any real bias in the mind of the Magistrate, are nevertheless such as are calculated to create in the mind of the petitioner a justifiable apprehension that he would not have an impartial inquiry. It is the state of mind of the party to the proceedings seeking transfer which is to be seen and not the impression of the Court in regard to the circumstances narrated by the party for transfer of the proceedings. However, as stated above, the apprehension must, nevertheless, be reasonable and not the result of the reaction Page 17 of 19 R/CR.MA/18396/2014 ORDER of the hyper sensitive mind.
In my view, the way the proceedings have been conducted so far, definitely would create an impression in the mind of the affected party that he is not likely to get an impartial and fair inquiry in the matter.
I am unable to appreciate the way in which the learned JMFC has conducted the matter. It is very shocking to notice that the summons has been issued under Form-V of the Cr.P.C. meant for "proclamation requiring the attendance of a witness". Not only that, but the summons appears to have been issued on 27th November 2014 and the same was posted on 3rd December 2014. The petitioner is justified in voicing the grievance that the events which occurred as narrated by him by way of an additional affidavit referred to above were all subsequent to this Court staying the further proceedings of the Criminal Misc. Application No.388 of 2009.
I am of the view that the apprehension expressed by the petitioner is well-founded. Without saying anything more in the matter, I deem fit to allow this application for transfer.
In the result, this application is allowed. The proceedings of Criminal Misc. Application No.338 of 2009 filed under the provisions of Section 13 of the Registration of Birth & Death Act, 1968, pending in the Court of the learned Principal Civil Judge & JMFC, Dholka, are hereby ordered to be transferred to the Sessions Division of the Principal District & Sessions Judge, Nadiad.
Page 18 of 19R/CR.MA/18396/2014 ORDER It will be open for the learned Principal District & Sessions Judge to allot this matter to any other judicial officer of his Sessions Division with a direction to dispose of the same within a period of three months from the date of receipt of the Writ of this order.
Rule is made absolute. Direct service is permitted.
The respondent nos.1 and 2 be informed in writing about the order passed by this Court transferring the proceedings.
(J.B.PARDIWALA, J.) MOIN Page 19 of 19