Punjab-Haryana High Court
Himmat Singh vs State Of Punjab And Others on 3 January, 2012
Author: Ranjit Singh
Bench: Ranjit Singh
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
DATE OF DECISION: JANUARY 03, 2012
Himmat Singh
.....Petitioner
VERSUS
State of Punjab and others
....Respondents
CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH
1. Whether Reporters of local papers may be allowed to see the judgement?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present: Mr. Vijay Lath, Advocate,
for the petitioner.
*****
RANJIT SINGH, J.
This petition is filed for transfer of a private complaint dated 23.2.2006/24.12.2010 pending before Judicial Magistrate Ist Class, Rajpura, to the Court of Additional Sessions Judge at Patiala, where the police case on the basis of FIR concerning the same incident is pending for trial. Additional Sessions Judge is trying a case on the basis of FIR No.59, dated 2.4.2005, where challan has been presented under Section 306 IPC. Prayer is not only for transfer of the complaint case but for setting-aside the order CRIMINAL MISC. M NO.45 OF 2012 :{ 2 }:
dated 14.10.2011, whereby the prayer of the petitioner for leading additional evidence is declined by Additional Sessions Judge.
At the outset, counsel for the petitioner was asked to show as to how he can claim relief of setting-aside order declining his prayer for leading additional evidence in this petition. Order declining the prayer for leading additional evidence may be a revisable order. Counsel for the petitioner then give up the prayer for setting-aside the order passed by the Sessions Court, declining his prayer for leading additional evidence. The counsel has then pressed hard his prayer for transfer of the complaint case to the Court of Additional Sessions Judge for being tried with the FIR case.
The case relates to an incident of unnatural death of Satpal Kaur daughter of the petitioner, who was married to respondent No.1. Her dead body was recovered from Bhakra Canal. FIR was lodged in this regard on 2.4.2005 under Sections 306/34 IPC. The police, after investigation, presented a challan and the case is accordingly being tried by Additional Sessions Judge, Patiala. Unsatisfied with the investigation, the petitioner has filed a complaint under Section 200 Cr.P.C. against the respondent-accused under Section 302 IPC. The petitioner has led evidence in support of his complaint and the case is now pending for 27.1.2012 CRIMINAL MISC. M NO.45 OF 2012 :{ 3 }:
for summoning of the accused.
In between the petitioner had filed an application under Section 311 Cr.P.C. before the Sessions Court for leading additional evidence, which he has produced before the Magistrate in the complaint case.
This application was contested and ultimately was dismissed by the Court on 14.10.2011. The petitioner has, thus, filed this petition to seek transfer of this complaint case for being tried with the FIR case pending before the Sessions Judge and for quashing the order, whereby his prayer for leading additional evidence is declined.
Having given up his challenge to the order, rejecting his application for leading additional evidence, the petitioner apparently has adopted this novel method to achieve the same purpose by seeking transfer of this complaint case for trial with FIR case, as he then would be in a position to lead the same evidence before the Court which has been declined by the Court. Once the petitioner has given up his challenge to the order rejecting his prayer for additional evidence, his right to lead additional evidence would stand fore-closed. Prayer for transfer of the case, if permitted, may lead to nullify the order declining the prayer for leading additional evidence for which the petitioner has now challenge to make.
Otherwise, the prayer of the petitioner is to CRIMINAL MISC. M NO.45 OF 2012 :{ 4 }:
examine a Ahlmad of the Court of JMIC, Rajpura, where the complaint case filed by the petitioner is pending. It was pointed out before the Court that the version now projected by the complainant is contrary to the previous application filed by him. The Sessions Court has observed that no reasons have been given by the petitioner as to why during the trial of the case, no such application was moved. This complaint was filed long ago on 23.3.2006 whereas the challan after reinvestigation was received in the Court on 21.2.2009. The prosecution has concluded the evidence and accused has also been examined under Section 313 Cr.P.C.
He has also led evidence in his defence. The Court has accordingly observed that this application is moved at this belated stage to fill up the lacuna in the prosecution case.
Earlier the petitioner had also moved an application for amendment of the charge, which was also disposed of on 10.9.2011. It is also observed that the evidence proposed to be brought on record is already available with the Court and accordingly prayer for leading additional evidence is declined.
It is now to be seen if it would be fair and appropriate to transfer the complaint case for being tried with case pending before the Sessions Court in the facts and circumstances of this case. Apparently, it may not be fair to do so in the facts of this case.
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Even otherwise, the petitioner has not been able to show as to how application under Section 407 Cr.P.C. for simple transfer of the case would be maintainable in such like situations. Power to transfer cases and appeals under Section 407 Cr.P.C. can be so exercised when the High Court finds that a fair and impartial enquiry or trial can not be held in any criminal Court subordinate thereto. The case can also be transferred when some question of law of unusual difficulty is likely to arise. Such transfer can further be directed when it will tend to be of general convenience of the parties or the witnesses or if it is expedient for the ends of justice. In this case, the prayer for transfer of the case is not made on any of the ground as noticed above. Plea is not that a fair and impartial enquiry or trial can not be held by the Court of Magistrate. Prayer even is not that some question of law of unusual difficult is likely to arise in this case. The grounds of convenience of parties or witnesses or expediency for the ends of justice are not pleaded. The prayer for transfer is made simply on the basis that the FIR case is being tried by the Sessions Court concerning the same incident for an offence under Section 306 IPC. The petitioner has filed complaint alleging offence under Section 302 IPC. The Magistrate is yet to summon the accused in this case.
The petitioner appears to have made this
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application for transfer of the case only once he failed in his effort to summon the record of the case pending before the Magistrate in the case before the Additional Sessions Judge. This method and mode to bring additional evidence to which no challenge is now made, by seeking transfer of complaint case would be open to question.
The attention of the counsel was also invited to the provisions of Section 210 Cr.P.C., which clearly provides that when in a case instituted otherwise than on a police report, it is made to appear to the Magistrate that investigation by the police is in progress in relation to the subject of the offence, the Magistrate can call for the report on the matter from the police officer conducting the investigation. This Section further provides that if a report is made by the investigating police officer under Section 173 and on such report cognizance of any offence is taken by the Magistrate against any person who is an accused in the complaint case, the Magistrate shall inquire into or try together the complaint case and the case arising out of the police report as if both the cases were instituted on a police report. If the police report does not relate to any accused in the complaint case or if the Magistrate does not take cognizance of any offence on the police report, he shall proceed with the inquiry or trial, which was stayed by him, in accordance with the provisions of the Cr.P.C.
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The observations made in judgement relied upon by the counsel for the petitioner in Gundi Sahu and others Vs. State of Orissa and others, 1975 Crl.L.J. 1392 may not be of any help to the petitioner. It is observed by the Court in this case that there is no provision in the Code for Sessions Judge to direct commitment of cases pending before Subordinate Magistrates to Sessions Judge. It is observed that Section 408 Cr.P.C., only gives power to the Sessions Judge to transfer cases from one Court to another and does not give any power to direct commitment of such cases. The High Court under Section 407 Cr.P.C. can direct transfer of a particular case only if the requirement in the Section is satisfied. These requirements have already been noticed above. It is only when the condition in Section 407(1) Cr.P.C. is satisfied that the High Court may invoke its power to direct transfer of cases. It is debatable if the transfer of a case can be directed, where it will amount to committal of a case for which the Magistrate alone is competent and where he is in the process of applying his mind to summon an accused and then only has to commit the case. Since no basis has been laid down in this case for transfer of the complaint case, it will not be appropriate to consider this question in the light of Section 407 Cr.P.C. to examine if the direction to transfer would lead to committal of the case or that it may lead to summoning of the accused. This power CRIMINAL MISC. M NO.45 OF 2012 :{ 8 }:
primarily is with of the Magistrate, who has to pass such order on the basis of material and evidence produced before him.
There is no merit in the petition and the same is dismissed.
January 03, 2012 ( RANJIT SINGH ) khurmi JUDGE