Telangana High Court
Rekhala Bhaskar vs Naragoni Sivaprasad And 3 Others on 25 November, 2020
Author: K. Lakshman
Bench: K. Lakshman
THE HONOURABLE SRI JUSTICE K. LAKSHMAN
TRANSFER CRIMINAL PETITION No.19 OF 2020
ORDER:
This petition is filed under Section 407 of Cr.P.C., to withdraw Crl.A.No.92 of 2019 from the file of the Principal District and Sessions Judge at Khammam and transfer the same to the Court of I Additional District Judge-cum-VI Additional District Judge, Khammam or Principal District Special Court for Women-cum-VIII Additional District Judge, Khammam.
2. The petitioner herein filed a private complaint and the same was referred to Khmamm II Town Police and the Police registered Crime No.33 of 2010 against respondent Nos.1 to 3 herein under Sections 470, 420 read with Section 34 IPC. The Police, after completion of investigation, filed charge sheet and the same was taken on file vide C.C.No.426 of 2010 on the file of the I Additional Judicial Magistrate of First Class, Khammam (for short, trial Court). After trial, the trial Court has acquitted respondent Nos.1 to 3 by judgment dated 18.04.2019.
3. Feeling aggrieved by the said judgment, the petitioner herein preferred an appeal vide Crl.A.No.92 of 2020 and the same is pending on the file of the Principal District and Sessions Judge at Khammam (for short, appellate Court). The petitioner is seeking transfer of the said Criminal Appeal 2 from the appellate Court to I Additional District Judge-cum-VI Additional District Judge, Khammam or Principal District Special Court for Women-cum-VIII Additional District Judge, Khammam on the following grounds.
(i) The appellate Court is granting very short adjournments and is insisting the petitioner herein to proceed with the criminal appeal.
(ii) The appellate Court has posted the Criminal Appeal to 05.10.2020 and again posted to 08.10.2020 by mentioning on the docket that "heard the arguments of the respondents' counsel" and the appeal was posted finally for hearing of the appellant on 14.10.2020. In fact the hearing was held virtually and the counsel for the appellant did not hear the arguments of counsel for the respondents. Thus, the appellate Court is insisting the appellant to proceed with the case virtually.
(iii) The appellant has handed over the file to his counsel, but his counsel expressed his inability due to his pre-occupation and also health condition of his aged parents.
(iv) The Apex Court passed orders not to grant any order or dispose of the matters during the pandemic situation of Covid-19, but the Presiding Officer of criminal appeal has posted the matter by giving short dates by ignoring the present pandemic situation which shows that the Presiding Officer is showing favourism to respondent Nos.1 to 3.
(v) Respondents are openly propagating that the appeal preferred by the petitioner herein is going to be dismissed and the Judge is in their favour.
With the said contentions, the petitioner sought to transfer Crl.A.No.92 of 2019 to some other Court.
4. Learned Public Prosecutor would submit that on the above said grounds urged by the petitioner, Crl.A.No.92 of 2019 cannot be transferred from the appellate Court to other Court and sought to dismiss the present petition.
5. Learned counsel for respondent Nos.1 to 3 would submit that the petitioner herein is seeking transfer of 3 Crl.A.No.92 of 2019 on flimsy grounds. In fact, it is the petitioner who has preferred the appeal against the judgment dated 18.04.2019 in C.C.No.426 of 2010, wherein the trial Court has acquitted respondent Nos.1 to 3. The petitioner herein, instead of proceedings with the appeal, is trying to protract the proceedings in Crl.A.No.92 of 2019 with a malafide intention to further harass respondent Nos.1 to 3.
6. In view of the above said rival submissions, it is apt to refer to the powers of High Court to transfer the cases and appeals under Section 407 of Cr.P.C., and it reads as under:
"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 4 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 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."
7. In view of the above, the High Court can exercise the power under Section 407 of Cr.P.C., for transfer of appeal on the grounds mentioned above. But, in the present case, the 5 petitioner herein failed to make out any ground as mentioned in Section 407 of Cr.P.C., to transfer Crl.A.No.92 of 2019 from the appellate Court to some other Court.
8. A three Judge Bench of Apex Court in Maneka Sanjay Gandhi Vs. Rani Jethmalani1 had an occasion to deal with the scope and ambit of transfer of criminal cases under Section 406 of Cr.P.C., and held that assurance of a fair trial is the first imperative of the dispensation of justice and the central criterion for the court to consider when a motion for transfer is made is not the hypersensitivity or relative convenience of a party or easy availability of legal services or like mini grievances. Something more substantial, more compelling, more imperiling, from the point of view of public justice and its attendant environment, is necessitous if the Court is to exercise its power of transfer. This is the cardinal principle although the circumstances may be myriad and vary from case to case. In view of the above principle laid down by the Apex Court, the grounds raised by the petitioner for transfer of appeal cannot be considered. The petitioner failed to make out any ground much less substantial grounds for transfer of the criminal appeal from one Court to other. Granting short dates/adjournments by the appellate Court is not a ground to transfer the appeal. In fact, the petitioner herein has filed the appeal and therefore he is expected to pursue the appeal in speedy disposal. Instead, he has filed 1 AIR 1979 SC 468 6 the present petition seeking to transfer. However, the appellate Court is hearing the matter virtually, and if the petitioner or his counsel having any difficulty, the same can be brought to the notice of the appellate Court. Instead of doing so, the petitioner has filed the present petition alleging motives including favoritism to the appellate Court. The petitioner herein failed to substantiate the said contentions. The other allegations are general in nature.
9. It is relevant to note that this Court has been issuing proceedings/SOP to the Subordinate Courts including the appellate Court for conducting the hearings/trial, etc., both virtually and physically. There is no complaint against the appellate Court with regard to conduct of proceedings virtually and physically in violation of the SOP issued by this Court from time to time.
10. As discussed above, it is the petitioner who has filed Crl.A.No.92 of 2019 challenging the judgment dated 18.04.2019 in C.C.No.426 of 2010 passed by the trial Court acquitting respondent Nos.1 to 3. Instead of proceeding with the appeal, the petitioner herein has approached this Court for transfer of Crl.A.No.92 of 2019 from the appellate Court to other Court on flimsy grounds. The reasons mentioned by the petitioner do not constitute a ground to transfer the appeal by this Court. Therefore, there are no merits in the present petition and it is liable to be dismissed. 7
11. Accordingly, the Criminal Petition is dismissed. Miscellaneous petitions pending, if any, shall stand closed.
__________________ K. LAKSHMAN, J Date: 25.11.2020 TJMR