Karnataka High Court
Shri R.N.Shetty S/O Narayana Shetty vs Union Of India on 5 March, 2020
Author: H.P.Sandesh
Bench: H.P. Sandesh
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 05TH DAY OF MARCH, 2020
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
CRIMINAL PETITION NO.100916/2019
BETWEEN:
SHRI R.N.SHETTY S/O. NARAYANA SHETTY,
AGE 45 YEARS, OCC: ADVOCATE,
R/O. MAHANTESH NAGAR,
DIST. BELAGAVI.
...PETITIONER
(BY SRI. JAGADISH PATIL, ADVOCATE)
AND:
UNION OF INDIA,
REPTD. THROUGH SPECIAL PUBLIC PROSECUTOR,
THROUGH CBI ACB BRANCH, BENGALURU,.
HIGH COURT OF KARNATAKA,
DHARWAD.
...RESPONDENT
(BY SRI. M.B.KANAVI, ADVOCATE)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 407
OF Cr.P.C. SEEKING TO ALLOW THIS PETITION AND THIS
HON'BLE COURT BE PLEASED TO WITHDRAW SPL CBI CC
NO.12/2013 FOR U/S 120-B, 420 OF IPC AND SECTION 13(2)
R/W. 13(1)(d) OF P C ACT PENDING ON THE FILE OF HON'BLE
III ADDL. DISTRICT AND SESSIONS JUDGE, SPECIAL JUDGE
FOR KLA/ACB & CBI CASES, DHARWAD AND TRANSFER IT TO
ANY OTHER JURISDICTIONAL COURT.
THIS PETITION COMING ON FOR HEARING ON
INTERLOCUTORY APPLICATION THIS DAY, THE COURT
MADE THE FOLLOWING:
2
ORDER
Heard the petitioner counsel and also the counsel appearing for the respondent.
2. This petition is filed invoking Section 407 of Cr.P.C. to withdraw the Special SBI/CC/No.12/2013, which is registered for the offences punishable under Sections 120-B, 420 of IPC and Section 13(2) r/w. 13(1)
(d) of the P.C.Act, pending on the file of the III Addl. District & Sessions Judge, Special Judge for KLA/ACB & CBI Cases, Dharwad and transfer it to any other jurisdictional Court.
3. The main grounds urged in the transfer petition is that, in paragraph 73 of the Judgment, the learned Judge refers to the lacunas and latches in the investigation conducted by the Investigating Agency. But whereas in the same paragraph the learned Judge states in spite of the lacuna on the part of the Investigating Agency there are grounds to suspect the 3 allegations made against the accused including the petitioners as series of cases are registered against them. The so called observation made in the order, there is an apprehension that the petitioner may not get fare play from the hands of the said Court and the process of trail is to connect the evidence concerning the case, whereas in the instant case due to the lacuna and latches on the part of the Investigating Agency, the burden of lack of evidence on the part of the prosecution is shifted on the series of cases registered, referring that there are number of cases and hence, it requires invocation of section 107 of Cr.P.C. to transfer the Case.
4. Per contra the counsel appearing for the respondent would contend that, mere apprehension that the petitioner may likely to convict in the case, is not a ground to transfer the case. The Court while considering the material on record and also the lapses on the part of 4 the Investigation Officer, made an observation that the Investigation Officer must have been diligent in collecting the evidence and also the other observation that other cases are also pending is not a ground to invoke Section 407 of Cr.P.C to transfer the case and the same is not in dispute that other cases are also pending.
5. The counsel appearing for the petitioner brought to notice of this Court in the earlier Criminal Petition No.102447/2018, this Court while invoking Section 407 of Cr.P.C., while dismissing the petition made an observation that, the Court below is also directed to assess the materials independently and not influenced by any observation. Inspite of the said direction was given, Presiding Judge referred that other cases pending against them and hence, the petitioner cannot expect any fair play from the Presiding Officer. 5
6. Having heard the petitioner counsel and also the counsel appearing for the respondent and also on perusal of the grounds urged in the petition, no doubt the Presiding Judge, while considering the case in Spl. CBI CC No.21/2013 made an observation that other cases were also pending against them and also made an observation with regard to the lacuna of the I.O and the said observation is only considering the material on record to bring the accused. The court also pointed out with regard to the lacuna on the part of the Investigation Officer and Investigation Officer would have been diligent in collecting the material and mere such observation made in the order cannot be a ground to transfer the petition by invoking Section 407 of Cr.P.C. The apprehension of the petitioner on such observation made in the Judgement cannot be a ground to transfer the case. Though the counsel brought to the notice of this Court that, this Court has earlier made an 6 observation and directed to assess the materials independently and not influenced by any observations and the observations made by this Court pointed out by the petitioner counsel is not relevant to the consideration of this case. The earlier order is also very clear with regard to the direction to assess the material independently and not influenced by any observations. It is not the case of the petitioner that in spite of such observation the Court made the observation based on the observation of this Court. The observations which the petitioner counsel pointed out is not against the earlier direction of the Court and the appreciation is with regard to the material available on record.
7. The said observation does not enures the benefit in favour of the petitioner to invoke Section 407 of Cr.P.C.
8. In view of the discussions made above, I pass the following:
7
ORDER The petition is dismissed.
Sd/-
JUDGE *Svh/-