Gujarat High Court
Mamadbhai Noormamadbhai Dal & 9 vs State Of Gujarat & on 1 March, 2016
Author: Sonia Gokani
Bench: Sonia Gokani
R/SCR.A/1189/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION (TRANSFER) No. 1189 of
2016
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MAMADBHAI NOORMAMADBHAI DAL & 9....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance :
Mr ABHIRAJ R TRIVEDI, ADVOCATE for the Applicant(s) No. 1 - 10
Mr HK PATEL, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE Ms. JUSTICE SONIA
GOKANI
1st March 2016
ORAL ORDER
This Special Criminal Application is preferred by the applicants-original accused nos. 1 to 10 under Article 226 of the Constitution of India for transfer of their trial, being Sessions Case No. 35 of 2014 which is pending before the learned Addl. Sessions Judge, Amreli to District & Sessions Court at Bhavnagar by seeking invocation of the powers under Section 407 of the Code of Criminal Procedure, 1973.
2. The applicants are allegedly involved in a case, being CR No. I-16/2013 registered with Liliya Police Station, Page 1 of 8 HC-NIC Page 1 of 8 Created On Sun Mar 06 01:07:00 IST 2016 R/SCR.A/1189/2016 ORDER Amreli for the offence punishable under Sections 143, 147, 148, 149, 34, 302, 120B, 201 IPC read with Section 135 of the Gujarat Police Act and Section 25[1]BA of the Arms Act. All the applicants are presently in judicial custody at Central Jail, Bhavnagar.
3. Rule returnable forthwith. Learned APP Mr. HK Patel appears and waives service of notice of rule for and on behalf of the respondent-State.
4. Heard learned advocates appearing for the respective sides.
5. According to the learned advocate Mr. Abhiraj R Trivedi appearing for the applicants, there is a strong apprehension in the mind of the applicants, as the complainant side is head strong and the persons of their caste are large in number in Amreli district. Further, every time, they are being produced from Bhavnagar Central Jail, this process also takes a long time.
6. According to the learned APP Mr. HK Patel that per se is no ground for the Court to transfer their case from the Court of learned Addl. Sessions Judge, Amreli to the Sessions Court at Bhavnagar.
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7. At the outset, it would be apt to reproduce Section 407 of the Code of Criminal Procedure, 1973, which read 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-
(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.
(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 Page 3 of 8 HC-NIC Page 3 of 8 Created On Sun Mar 06 01:07:00 IST 2016 R/SCR.A/1189/2016 ORDER 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 copy of the grounds on which it is made; and no order shall be made on of 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 or 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."
8. As can be noted from the provision, this Court can exercise power of transfer of cases and appeals, if it appears to the Court that fair and impartial inquiry or trial cannot be had in any Criminal Court subordinate thereto, Page 4 of 8 HC-NIC Page 4 of 8 Created On Sun Mar 06 01:07:00 IST 2016 R/SCR.A/1189/2016 ORDER or that some question of law of unusual difficulty is likely to arise; or 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.
9. The grounds raised in the present petition for transfer are [a] apprehension in the mind of the petitioners; [b] that the complainant side is head strong and the persons of their caste are large in number in Amreli district. None of the grounds, according to this Court should weigh with the Court to allow this application for transfer of their cases.
10. For the reasons known to the Jail authorities, petitioners are housed at Bhavnagar Jail. Their transfer to Bhavnagar Central Jail per se is also no ground for transferring their cases to District Court at Bhavnagar. The concerned Sessions Court can also direct to house them at Amreli Jail; if it so deems fit and if there are no security reasons for passing such order. The petitioners are apprehensive of the threat from the people of a particular caste of the complainant at Amreli, if the Jail authorities is Page 5 of 8 HC-NIC Page 5 of 8 Created On Sun Mar 06 01:07:00 IST 2016 R/SCR.A/1189/2016 ORDER of the opinion that their safety is well maintained at Bhavnagar, the Court may be apprised of the same. 10.1 It may also be noted at this stage that most of the Jails in the State have video-conferencing arrangements. If there is possibility of production of applicants-accused through video-conferencing linkage before Amreli Court, the authorities shall make best of its efforts to avail the same so that actual production of the accused persons would not be necessary.
10.2 It is required to be emphasized that the convenience of the witnesses shall have to be borne in mind while considering the request for transfer of cases. Learned advocate for the applicants fairly submitted that most of the witnesses belong to Amreli district. The Court shall have to regard the convenience of the parties and the witnesses.
10.3 The petitioners since are being brought with security of police personnels, their transportation from Bhavnagar Central Jail to the Sessions Court at Amreli is the responsibility of the Jail authorities and that of the State Government. If the video conferencing facility is not Page 6 of 8 HC-NIC Page 6 of 8 Created On Sun Mar 06 01:07:00 IST 2016 R/SCR.A/1189/2016 ORDER available, adequate amount of security shall be provided while transferring them from one place to another.
11. No cause thus is made out to indicate any genuine apprehension nor of any unusual difficulty for the Court to accept such a request, and therefore, while disposing of this Special Criminal Application, the following directions are required to be issued.
[i] Inspector General of Prisons shall take into account the difficulty in transporting the petitioners every time from Bhavnagar Central Jail to the Sessions Court at Amreli and can explore the possibility of housing the petitioners at Amreli Jail, if their safety is not to be jeopardized in any manner. In the alternative; [ii] let the trial Court be made aware of availability of video conferencing linkage from Bhavnagar Central Jail to Amreli District Court to work out the possibility of their production through the said linkage. The concerned trial Court then shall take necessary decision in that regard so as to expedite the process of the trial and also while regarding safety of the petitioners.
[iii] If necessary, the concerned Court may direct
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additional police force to be deployed for transportation of the petitioners from Bhavnagar Jail to the District & Sessions Court at Amreli. The concerned Court will take independent decision in consultation with the Senior Police Officer of the District, without being influenced by the disposal of this matter.
12. Special Criminal Application stands disposed of with the aforesaid observations and directions. Rule nisi stands discharged with no order as to costs.
{Ms. Sonia Gokani, J.} Prakash* Page 8 of 8 HC-NIC Page 8 of 8 Created On Sun Mar 06 01:07:00 IST 2016