Karnataka High Court
Sri. Chikka Krishna vs State Of Karnataka on 23 March, 2017
Equivalent citations: 2017 (2) AKR 639
Author: John Michael Cunha
Bench: John Michael Cunha
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF MARCH, 2017
BEFORE
THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA
CRIMINAL PETITION NO.1642/2017
Between:
Sri Chikka Krishna
S/o Sri Venkatesh,
Aged about 33 Years,
R/at 3rd Cross, Sapthagiri Nilaya,
Jayanagar, Tumkur Town,
Tumkur-572 101. ... Petitioner
(By Sri. R.B.Sadashivappa., Advocate)
And:
State of Karnataka
By Tumkur Town Police,
Tumkur,
Rep. by the Learned Public
Prosecutor
High Court, Bengaluru. ...Respondent
(By Sri. Chetan Desai-HCGP)
This Criminal Petition is filed under Section 407 of
Cr.P.C., praying to withdraw the case i.e.,
S.C.No.21/2016 on the file of Principal District &
Sessions Judge, Tumkur and transfer the same to any
of the Additional District & Sessions Judge, at Tumkur.
This Criminal Petition is coming on for orders this
day, the court made the following:
2
ORDER
Heard the learned counsel for the petitioner and learned HCGP.
2. The petitioner is facing trial for the offence punishable under Section 376 of Indian Penal Code. Before the Trial Court, petitioner moved an application under Section 227 of Cr.P.C., seeking discharge. The said application was rejected by the learned Sessions Judge.
3. Learned counsel for the petitioner has referred to the order sheet dated 18.01.2017 and points out that on 18.07.2017 the learned Sessions Judge posted the matter for pronouncement of the order at 3.00 p.m., but the order came to be pronounced earlier to 3.00 p.m. The order sheet reads as follows:
" The accused called out, absent, when called out at 1.45 p.m. Hence, NBW issue along with notice to surety by 07.02.2017."
4. It is the submission of the learned counsel for the petitioner that on the same day counsel for the accused moved an application under Section 70(2) of 3 Cr.P.C., but the said application was put up only on 19.01.2017 and the NBW was recalled. Thereafter, the case was posted on 07.02.2017 and on that day the accused was absent and exemption application was filed, but the learned Sessions Judge rejected the said exemption petition and issued NBW against the accused.
5. The grievance of the petitioner is that he regularly appeared before the Court all through out, but on 07.02.2017 as he had to take his mother for treatment to M.S.Ramaiah Hospital, Bengaluru, he could not appear before the court. Under the said circumstances, the learned Sessions Judge could have allowed the exemption application. According to the petitioner that this act on the part of the learned Sessions Judge has given rise to an apprehension in the mind of petitioner/accused that he would not get fair justice at the hands of the Court.
6. In support of his submission the learned counsel has relied upon the following decisions:
1) 1990 CRI.L.J. 64 (Budhya and others Vs. State of U.P.) 4
2) AIR 1957 SUPREME COURT 425 (Manak Lal, Advocate Vs. Dr. Prem Chand Singhvi and others)
3) AIR 1966 SUPREME COURT 1418 Gurcharn Dass Chadha Vs State of Rajasthan)
7. The only question to be considered is whether the petitioner has made out sufficient ground for withdrawal and transfer of the case from the Court of Principal District and Sessions Judge, Tumkur to any of the Additional District and Sessions Court at Tumkur?
8. Section 407 of Cr.P.C., which deals with the power of the High Court to transfer cases, reads as under:
"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 an any provision of this Code, or will tend to the general convenience of the parties or witnesses, or his expedient for the ends of justice. it may order-5
(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."
9. In the instant case, the only ground on which the petitioner has sought for transfer of the case is that the application moved by his counsel seeking exemption for his appearance on 07.02.2017 was rejected by the learned Sessions Judge. According to the petitioner it indicates prejudice or bias against the petitioner. I am not inclined to accept this submission. The order sheet reveals that no sooner the application was moved by the petitioner for recall of NBW, the trial Court has entertained the said application and has recalled the NBW. The application made by the petitioner seeking exemption was not supported by any documents to substantiate that the mother of the petitioner was 6 suffering from Cancer or on the date of the appearance the petitioner had taken her to the hospital. Under the said circumstances, the learned Sessions Judge was justified in rejecting the said application. Even otherwise, it is a judicial order. There is nothing in the said order to show that the learned Magistrate passed this order out of spite or prejudice. Therefore, none of the grounds prescribed under Section 407 of Cr.P.C., get attracted to the facts of the case. The decisions relied upon by the learned counsel for the petitioner lay down that whenever the accused or litigant makes out a clear case of bias or prejudice and satisfies the High Court that in those fact situations he is apprehensive of getting justice, the High Court may resort to Section 407 of Cr.P.C.
10. In the instant case, there is absolutely no basis for the apprehension of the petitioner. On the other hand, the circumstances of the case indicate that the petitioner has been adopting dilatory tactics at all stages of the proceedings. It is evident from the order sheet that on an earlier instance the petitioner had approached this Court seeking to quash the proceedings 7 under Section 482 of Cr.P.C. At the same time, the petitioner moved the above application under Section 227 of Cr.P.C. All these facts indicate that the petitioner is vigilant of his rights. Therefore, he should have been vigilant to appear before the court on all the dates of hearing as mandated under law. If, for any reason, the trial Court has declined to accept his application for exemption, the same cannot be made a reason to attribute motive to the presiding officer. The circumstances of the case do not indicate any bias or prejudice. Since no allegations are leveled against the Presiding Officer there is no need to call for the explanation of the learned Sessions Judge. I do not find any merit in the petition. Accordingly, the petition is Rejected.
I.A.No.1/2017 does not survive for consideration. Hence, the same is disposed of.
Sd/-
JUDGE DL