Dr. Tahir Mufti vs State Of J&K And Another on 31 July, 2019

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Jammu & Kashmir High Court - Srinagar Bench

Dr. Tahir Mufti vs State Of J&K And Another on 31 July, 2019

1. The petitioner is facing trial in two criminal cases, one before the Court of Special Judge, Anticorruption Jammu in case FIR No.81/1992 and another before the Court of Additional Sessions Judge, Anticorruption, Jammu, in case FIR No.37/1994 for the commission of offence punishable under Section 5(2) P.C. Act 2006. By the instant two petitions, petitioner has sought transfer of cases from Jammu to Srinagar. In CRTA No.22/2012, withdrawal and consequent transfer of the cases titled "State Vs. Mufti Mohammad Tahir and others" from the Court of Special Judge, Anticorruption, Jammu, has been sought by the medium of instant petitions on the following grounds:

CRTA No.22/2012 C/W CRTA No.15/2012 MOHAMMAD ALTAF BHAT 2019.08.01 13:34 Page 1 of 9 I attest to the accuracy and integrity of this document (1) The petitioner is not in a position to attend the court at Jammu physically because he is bed ridden and has been advised advance surgery by the doctors. For undergoing said surgery, he has already travelled to Saudi Arabia and under the advice of the doctors, he is presently residing over there. Since the trial court is insisting on the personal presence of the petitioner, which is impossible for the aforesaid reason, therefore, petitioner seeks transfer of the case from Jammu to Srinagar so that he can cause his appearance in any court at Srinagar as and when he is called upon to do so by the said court, (2) Only arguments have to be heard in the case pending in the court of Special Judge, Anticorruption, Jammu which could be heard by any court at Srinagar, as such, transfer of the case from Jammu to Srinagar will not cause any kind of inconvenience to the respondents.

(3) The Court has already entertained the transfer application filed by the petitioner for the transfer of the case pending in the court of Additional Sessions Judge, Anticorruption, Jammu. Since the grounds urged in that petition have weighed with the Court and while issuing notice to the other side, the warrants issued against the petitioner have been directed not to be executed and the proceedings initiated against the surety have also been directed to stay, therefore, it would be expedient in the interests of justice to transfer the case titled State Vs. Dr. Mufti Mohammad Tahir and another from the Court of Special Judge, Anticorruption, Jammu, to any other court of competent jurisdiction at Srinagar along with the case titled State of J&K Vs. Dr. Mufti Mohammad Tahir and another pending in the court of Additional Sessions Judge, Jammu, so that both the cases are tried and disposed of the transferee court, CRTA No.22/2012 C/W CRTA No.15/2012 Page 2 of 9 MOHAMMAD ALTAF BHAT 2019.08.01 13:34 I attest to the accuracy and integrity of this document without causing any kind of inconvenience to the respondents or to the petitioner.

(4) Convenience of the parties is one of the important grounds for transferring a case from one court to another. The petitioner is not in a position to attend the court at Jammu because he has undergone cardiac surgery and has been advised further advance surgery by the doctors outside the country. It is possible for the petitioner to cause his appearance in any court at Srinagar but it is impossible for him to attend the proceedings of the case before the Special Judge, Anticorruption, Jammu and since arguments only have to be heard in the case, therefore, it would be in the interests of justice to transfer the case from the court of Special Judge, Anticorruption, Jammu to any other court of competent jurisdiction at Srinagar with the direction to the transferee court to decide the case at the earliest.

2. In CRTA No.15/2012, withdrawal and consequent transfer of the of the challan No.48/2006 arising out of FIR No.37/1994 from the court of Additional Sessions Judge, Anticorruption, Jammu to Srinagar has been sought by pleading that:

(1) The petitioner has been attending all court proceedings regularly, (2) The petitioner has attained the age of 78 years and is old, infirm and sick person, (3) The petitioner is suffering from Myocardial Infection, Angina and Blockage of posterior part of Cardiac to the extent of 99.5%, (4) The petitioner has undergone surgery from blockage of posterior part of Cardiac, CRTA No.22/2012 C/W CRTA No.15/2012 Page 3 of 9 MOHAMMAD ALTAF BHAT 2019.08.01 13:34 I attest to the accuracy and integrity of this document (5) The petitioner is not able to take any journey either by road or by air to face the trial at Jammu, (6) Most of accused are from Kashmir Valley and majority of the prosecution witnesses are from Crime Branch.

(7) In view of health condition of the petitioner, it is not possible for the petitioner to attend each and every date of hearing at Jammu, (8) When the case was called, the petitioner was away for his treatment and could not attend the court personally and Mr. Mufti Mehraj-ud-din Farooqi Advocate appeared before the trial court at Jammu and sought extension of time for producing the petitioner before the court through the medium of application which, however, was not accepted by the ld. Trial court and petitioner's brother was compelled to file 561-A against the order of learned trial court at Jammu which came to be numbered as 561-A/14 of 2012 and order came to be passed in Cr. M. P No.13/2012 dated 18.01.2012, whereby the High Court was pleased to stay the proceedings before the ld. Trial court.

3. The respondents have filed their objections wherein they have stated that:

(i) the case does not deserve to be transferred to Srinagar because the FIR was registered under Crime Branch, Jammu, on the written application of Ayurvedic Medical Officer, Jammu. After the registration of FIR, it was found that the accused persons have committed the offence and accordingly 04 accused persons were put CRTA No.22/2012 C/W CRTA No.15/2012 Page 4 of 9 MOHAMMAD ALTAF BHAT 2019.08.01 13:34 I attest to the accuracy and integrity of this document to trial by production of challan before the Court of Special Judge, Anti-corruption, Jammu.

(ii) In the said case, 02 accused persons are residents of Jammu and 02 are the residents of Srinagar. The maximum witnesses in the case are residents of Jammu and Mumbai which fact is evident from the list of witnesses.

(iii) The said case is at evidence stage and maximum prosecution witnesses are from Jammu, Mumbai and Gujrat whose statements are yet to be recorded, therefore, transfer of the case at this stage from Jammu to Srinagar will hamper trial of the case and thus case does not deserve to be transferred from Jammu to Srinagar. The proceedings initiated u/s 512 and 514 CrPC is mandatory requirement in case any accused absents. No fault can be found in such proceedings and such issue could not be looked into in the petition seeking transfer of the case

4. Heard learned counsel for the parties and also perused the record.

5. Learned counsel for the petitioner has submitted that having regard to the pleas raised in terms of instant petitions and which have been corroborated by evidence brought on record, it can be safely stated that the cause of justice would stand advanced if the case is transferred from the courts of Special Judge Anticorruption, Jammu and Additional Sessions Judge, Anti- corruption, Jammu, to any court of competent jurisdiction at Srinagar. Section 526 of Cr. P. C. is being referred to canvass that the grounds as have been made are envisaged under the said provision for transfer of case. CRTA No.22/2012 C/W CRTA No.15/2012 Page 5 of 9 MOHAMMAD ALTAF BHAT 2019.08.01 13:34 I attest to the accuracy and integrity of this document

6. Per contra, learned senior AAGs has submitted that there are other persons who are likely to be affected by the withdrawal of case, if prayer made in terms of instant petition would be granted. The said persons are facing trial along with petitioner at Jammu. Mr. Qadri, learned counsel appearing for the Crime Branch has also referred to judgment of Hon'ble Supreme Court in Baljit Singh and another Versus State of J&K and others (AIR 1982 SC 1588).

7. It may be pertinent to state herein that in the said reported judgment, a case under Section 302/392 of Indian Penal Code had been transferred from Jammu to Srinagar by the High Court on the ground that most of the witnesses belonging to Jammu had already been examined but the Supreme Court deprecated the approach with the following observations:

".........Normal course of things should not have been lightly interfered with and the case should have been allowed to be tried by the court which had territorial jurisdiction........."

8. Considered the rival arguments. On the perusal of available material, it is evident that in the case registered by Vigilance Organization pending before Special Judge, Anti-corruption, Jammu, trial has been concluded and only arguments have to be heard. However, in the case registered by Crime Branch, trial is yet to be concluded. The objections filed on behalf of Crime Branch point out that two accused persons in the said case are from Jammu and two are residents of Srinagar. It is also indicated therein that maximum witness in the said case are from Jammu, Bombay and some of the witnesses even hail from Gujrat. In the case registered by Vigilance Organization, besides petitioner, Dr. Yograj Jalotra, is facing trial.

CRTA No.22/2012 C/W CRTA No.15/2012 Page 6 of 9 MOHAMMAD ALTAF BHAT 2019.08.01 13:34 I attest to the accuracy and integrity of this document

9. Section 526 of the J&K Code of Criminal Procedure empowers the High Court to transfer a case from one Criminal Court subordinate to it to any other Criminal Court of equal or superior jurisdiction. The power can be exercised if it is deemed necessary to have a fair and impartial enquiry or otherwise same is found expedient for general convenience of the parties or witnesses. In the matters in hand, the investigation of the case has been made at Jammu and so the trial too has ensured at said place. The present petitioner is not the only person who is facing trial in the matter. It is an admitted feature of the case that in addition to the petitioner, some more persons have been arrayed as accused and so who are likely to be affected by the withdrawal of the cases. In consonance with the assurance of the fair trial, which is the main criteria for exercise of the power vested with the High Court, interests of all the parties have to be taken note, while considering the prayer of present nature. It requires to be underlined that a case cannot be transferred at the mere choice of a party. It may be done even when it is not opposed by other side if other relevant considerations outweigh such a move. The Court in any case has to be loath to accept such a prayer if it is likely to put other parties to inconvenience of agony. Weighing the prayer with these characteristics, petition filed needs to be rejected.

10. More so, in the light of the judgment of Hon'ble Apex Court, the ground furnished cannot be treated sufficient for withdrawal of the cases from the Courts at Jammu and transferred the same to Srinagar. In substance, the ground on which the matter/matters is/are sought to be transferred is the status of health of the petitioner. Same could be taken care even by trial court in exercise of its powers to dispense with personal attendance of the petitioner CRTA No.22/2012 C/W CRTA No.15/2012 Page 7 of 9 MOHAMMAD ALTAF BHAT 2019.08.01 13:34 I attest to the accuracy and integrity of this document subject to such conditions as it may have deemed necessary. Since now power of this Court has been invoked and the condition of health of petitioner is brought to the notice of this Court, it is found proper and expedient in the ends of justice to direct dispensation of personal attendance of the petitioner herein in above referred cases till otherwise the personal appearance of the petitioner on any count is found necessary by the trial court. The petitioner shall be, however, under an obligation to make an arrangement for ensuring his appearance through a duly engaged counsel till the trial of cases stands concluded. Accordingly, personal attendance of the petitioner in both the cases is directed to be dispensed with in the manner indicated above. The evidence of the prosecution initiated at the instance of Crime Branch noted above, may be recorded by the trial court in the absence of the petitioner while it shall be ensured by the petitioner that a duly engaged counsel appears on his behalf. Arguments in other case shall be also heard in presence of the counsel of the petitioner. Appropriate motion be filed by petitioner before the concerned trial courts, indicating therein the name of the Advocate who shall appear before the said courts on his behalf. It shall not be open for the petitioner to confront any prosecution witness about his identification physically in the backdrop of this direction. In case of failure on the part of petitioner to cause his appearance through counsel on two consecutive hearings without any sufficient cause, the concession granted herein shall be deemed to have been withdrawn and appropriate orders, accordingly, can be passed by the learned trial court. The prayer made for transfer of the cases from Jammu to Srinagar is declined in the light of what is stated above. Both CRTA No.22/2012 C/W CRTA No.15/2012 Page 8 of 9 MOHAMMAD ALTAF BHAT 2019.08.01 13:34 I attest to the accuracy and integrity of this document the petitions shall stand disposed of in terms of the direction and observations made above. Interim direction in both the cases shall stand vacated.

11. Copy of this order be sent to both learned trial courts for information and compliance.

(Rashid Ali Dar) Judge Srinagar 31.07.2019 "Bhat Altaf, PS"

                    Whether the order is speaking:                 Yes/No
                    Whether the order is reportable:               Yes/No




CRTA No.22/2012 C/W CRTA No.15/2012                                     Page 9 of 9
                                    MOHAMMAD ALTAF BHAT
                                    2019.08.01 13:34
                                    I attest to the accuracy and
                                    integrity of this document

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Jammu & Kashmir High Court - Srinagar Bench