Jammu & Kashmir High Court - Srinagar Bench
Showkat Ahmad Hakim & Ors vs State Of J&K; on 9 November, 2017
Author: Sanjay Kumar Gupta
Bench: Sanjay Kumar Gupta
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
...
Cr.T.A. no.06/2017 Date of order: 09.11.2017 Showkat Ahmad Hakim & ors v.
State of J&K Coram:
Hon'ble Mr Justice Sanjay Kumar Gupta, Judge Appearing Counsel:
For Petitioner(s): Mr M. A. Qayoom, Advocate For Respondent(s): Mr Q.R.Shamas, Dy.AG Whether approved for reporting in Press/Media: Yes/No
Whether approved for reporting in Digest/Journal: Yes/No
1. Petitioners seek transfer of case titled State v. Showkat Ahmad Hakeem and others from the files of learned Sessions Judge, Bandipora, to the court of competent jurisdiction at Srinagar.
2. The case set up by the petitioners is that they were arrested in 2015 in connection with case FIR no.23/2005 P/S Arigam, Bandipora. After conducting investigation of the case, a challan is stated to have been filed against petitioners before learned Sessions Judge, Bandipora, where the same is pending at present. It is submitted that petitioners were earlier lodged in District Jail, Baramulla, but they were shifted to District Jail Poonch. However, pursuant to orders of the trial court, petitioners were brought back from District Jail, Poonch and they are presently lodged at Central Jail, Srinagar. It is further submitted that after their lodgement they are not being produced before the learned Sessions court, Bandipora, as a result of which the proceedings of the case are getting delayed day by day. It is contended that for the reason that the petitioners are lodged in Central Jail, Srinagar, and they are not being taken to the trial court for facing the trial of the case and also for the reason that petitioner no.1 is involved in another case titled State v. Masrat Alam Bhat and others, Cr.T.A. no.07/2017 Page 1 of 4 which is pending in the court of learned Forest Magistrate, Srinagar, as such, the petitioners seek transfer of the case titled State v. Showkat Ahmad Hakim and others from the court of Sessions Judge, Bandipora, to any other court of competent jurisdiction at Srinagar, so that the matter is dealt with by the transferee court as expeditiously as possible.
3. Reply has been filed by respondents, in which they have insisted that the case FIR no.23/2015 P/S Aragam, is subjudice before the learned Sessions Judge, Bandipora and the charge against the accused was framed on 11.05.2016 and thereafter the case was listed for prosecution evidence and on the very next date PW-1 was produced before the court on 09.06.2016, whose statement was deferred on submission of defence counsel during cross examination and subsequently the case was deferred for further cross-examination of PW-1 and was listed on 25.06.2016 and then on 09.09.2016. It is also contended that neither accused were brought nor witnesses turned up due to the unrest and the prevailing circumstances in Kashmir Valley on 08.07.2016 onwards, but the accused no.1 was produced on 12.11.2016 from District Jail, Poonch, who was shifted to said Jail from District Jail Baramulla on the ground of creating law and order problems in the jail. Respondents have also stated that lodgement of accused 1 to 4 was changed to Central Jail, Srinagar, and were lodged therein and almost there are total 59 PWs listed in the challan and out of them 06 witnesses have been admitted by the court and on 27.09.2017, one witness was recorded and now there are 52 witnesses, who are yet to be recorded.
4. I have heard learned counsel for the parties and considered the matter. I have gone through relevant provisions of law on the subject.
5. Section 526 of Cr.P.C reads as under:
526. High Court may transfer case or itself try it.- (1) whenever it is made to appear to the High Court-Cr.T.A. no.07/2017 Page 2 of 4
(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 a view of the place in or near which any offence has been committed may be required for the satisfactory inquiry into or trial of the same; or
(d) that an order under this Section will tend to the general convenience of the parties or witness ; or
(e) that such an order is expedient for the ends of justice, or is required by any provision of this Code, it may order-
(i) that any offence be inquired into or tried by any Court not empowered under Sections 177 to 184 (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 or appeal be transferred to and tried before itself; or
6. From the bare perusal of this section it is evident that High Court has power to transfer criminal case from one sessions division to another sessions division on the grounds that a fair and impartial inquiry or trial cannot be held in any subordinate criminal court; that is for the general convenience of the parties or witnesses. Further Criminal case can be transferred when it appears to the High Court that an order about such transfer can be expedient for ends of justice and for promotion of ends of justice. These are some of valid grounds for transfer. There are also other grounds which the High Court can think proper in the facts and circumstances of particular case.
7. In present case, accused are facing trial at Pr. District and Sessions Court Bandipur. It is specific case of petitioners/ accused that they were lodged in District Jail, Baramulla, but they were shifted to District Jail Poonch; but on the order of trial court, petitioners/accused were brought back from Cr.T.A. no.07/2017 Page 3 of 4 District Jail, Poonch and they are presently lodged at Central Jail, Srinagar; that they are not being produced before the Sessions court, Bandipora regularly, as a result of which the proceedings of the case are getting delayed day by day. Further in objection filed by the State, it has been stated that out of 59 prosecution witnesses only 06 have been examined.
8. Taking into consideration all aspects of matter and as the petitioners have been lodged at Srinagar Jail, it would be more convenient for State (Prosecution) to produce the accused at Srinagar court and also for accused to prosecute their case speedily, because speedy and fair trial is fundamental right of accused persons. The arguments of State counsel that local witnesses from Bandipora, will have bear to expenses for coming to court at Srinagar, can be taken note by directing the counsel for accused to bear, the expenses for journey of private witnesses cited in challan from Bandipora to Srinagar court.
9. Hence this petition is allowed. Case titled State v. Showkat Ahmad Hakeem and others in FIR no.23/2005 u/s 302/307/120-B/ 427/149/ 427RPC 7/27 A. Act and 16/18 of U.LA. (P) Act of P/S Arigam, Bandipora, pending before learned Sessions Judge, Bandipora, is withdrawn and transferred to the court of Principal Sessions Judge, Srinagar, who may try it or transfer it to any of other competent court. Disposed of.
(Sanjay Kumar Gupta) Judge Srinagar November 09, 2017 Ajaz Ahmad Cr.T.A. no.07/2017 Page 4 of 4