Andhra Pradesh High Court - Amravati
Sri Kollipara Abhilash vs The State Of Andhra Pradesh on 3 August, 2022
THE HON'BLE Ms. JUSTICE B.S.BHANUMATHI
Transfer Criminal Petition Nos.4, 5 & 6 of 2022
COMMON ORDER:
In these petitions, the point is about restriction on jurisdiction of the High Court as per the proviso to Section 407(2) CrPC, relating to transfer of criminal cases from one Court of First Class Magistrate within the territorial jurisdiction of one of the Additional Sessions Court to Court of same jurisdiction in jurisdiction of another Additional Sessions Court, however, both within the same Sessions division.
2. Transfer Criminal Petition Nos.4, 5 & 6 of 2022 are filed under Section 407 CrPC seeking to withdraw M.C.No.45 of 2021, D.V.C.No.17 of 2021, and C.C.No.1347 of 2021 on the file of the Court of I Additional Junior Civil Judge, Narasaraopet, Guntur District, and to transfer the same to the Court of Principal Junior Civil Judge or any other competent Court at Tenali.
3. Heard Sri K.Rama Chandra, learned counsel for the petitioner(s) and Sri Dheera Kanishk, learned counsel representing the 1st respondent/State.
4. The 1st respondent raised preliminary objection as regards the maintainability of the transfer criminal petitions for having been filed at the first instance before this Court for transfer of a case from one Court to another Court within the Sessions Division, without first approaching the Sessions Court concerned as required under Section 407(2) CrPC.
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BSB, J Tr.Crl.P.Nos.4, 5 & 6 of 2022
5. Learned counsel for the 2nd respondent adopted the said contentions.
6. Placing reliance on the decisions of this Court in B.Sreedhara Reddy v. State of A.P1, learned counsel for the petitioners submitted that the case is maintainable before this Court. In the said decision, it was held that under Section 408 CrPC, the Sessions Judge has neither the power to direct committal of a case to the Sessions Court nor can he order transfer of a case from one criminal Court to another of a superior jurisdiction, as a consequence of which the crucial proviso to sub-section (2) of Section 407 CrPC, would have no operation to debar maintenance of an application under Section 407 CrPC before the High Court either for transfer of a case to a Court of superior jurisdiction or for committal of a case to the Sessions Court on the ground that no such application was made earlier before the Sessions Court under Section 408 and rejected by it.
7. Sri Dheeraj Kanishk, learned counsel representing the 1st respondent distinguished the application of this decision to the case on hand on the ground that all these petitions are filed to transfer the case from one Court to another Court of the same type of jurisdiction in the hierarchy and unlike in cases in the cited decision, in the present case, the Sessions Court has authority to transfer a case from one Court to another Court of coordinate jurisdiction within the same Sessions Division.
8. On the other hand, learned counsel for the petitioners submitted that the case is sought to be transferred from I Additional Judicial First Class Magistrate Court at Narasaraopet to the Court of Judicial First 1 1988 (2) APLJ 278 3 BSB, J Tr.Crl.P.Nos.4, 5 & 6 of 2022 Class Magistrate at Tenali, both of which fall under the jurisdiction of different Additional Sessions Courts. He further placed reliance on the decisions in M.Shyam Prasad Reddy v. State of Andhra Pradesh2, Talari Mala Obulesu v. State of Andhra Pradesh3, K.Sriramulu v. 4 T.Mariyadas , Prathikantam Gunvardhan Raju v. PrathikanthamUma Venkata Satyarenuka5. But those cases are not decided on this issue and thus, they have no application.
9. Before proceeding further, it is profitable to mention Section 407(1) and 407(2) CrPC to the extent of their relevancy to the present case and they read 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 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
1992 Law Suit (AP) 306 3 1992 Law Suit (AP) 226 4 2020 SCC Online AP 4409 5 2021 SCC Online AP 1404 4 BSB, J Tr.Crl.P.Nos.4, 5 & 6 of 2022 (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."
10. Learned counsel for the 1st respondent placed reliance on a decision in Guntuku Vijay v. State of Telangana6, wherein, it was held as follows:
"....in the light of above decision, it is clear that Section 408 CrPC stands apart from Section 409 CrPC. Therefore, the petitioner has to invariably approach the Sessions Court for transfer of the case before approaching the High Court as provided in the proviso to Section 407(2) CrPC. Since in the instant case, the said procedure is not followed, the present application is not maintainable. Hence, the petition is liable to be dismissed...."
In Meragani Satyanarayana v. Koppanathi Trimurthulu7, it was held at paragraph No.6 as follows:
"....It should be noted that as per proviso to Section 407(2) CrPC an application for transferring of a case from one criminal court to another criminal court in the same sessions division can be filed before the High Court only after such a transfer petition was moved before the Sessions Judge and rejected. Therefore, the present Transfer criminal Petition cannot be entertained in view of the procedural compliance mandated above."
11. In the present case, admittedly, the petitioners have not approached the Sessions Court seeking similar relief. Though there are separate Additional Sessions Courts in respect of the area and the jurisdiction of Narasaraopet and Tenali, the Principle Sessions Judge at 6 Criminal Petition No.354 of 2014 decided on 26.02.2015 7 2021 (1) ALD (Crl.) 42 5 BSB, J Tr.Crl.P.Nos.4, 5 & 6 of 2022 Guntur does not lose the jurisdiction under Section 408 CrPC, since it is not shown that Additional District Judge Courts at Narasaraopet and Tenali have independent jurisdiction under Section 408 CrPC to the exclusion of Principal Sessions Judge Court at Guntur under Section 408 CrPC. Therefore, as per Section 407 (2) CrPC, the petitioners have to first approach the Sessions Court and in case, if the relief is declined, they can approach the High Court but not without availing such remedy under Section 408 CrPC.
12. As rightly distinguished, the application of decision in B.Sreedhara Reddy (supra) to the present case on hand, the petitioners cannot lay their hands on the said decision to confer jurisdiction on the High Court inspite of the bar created under Section 407(2) CrPC. As such, this Court is of the opinion that these petitions are not maintainable before this Court at this juncture. The petitioners may still avail the remedy open to them under Section 408 CrPC. As such, without going into the merits of the contentions of both the parties, the transfer petitions can be disposed of.
13. In the result, all the Transfer Criminal Petitions are dismissed granting liberty to the petitioners to first avail the remedy under Section 408 CrPC before approaching the High Court under Section 407(1) CrPC in view of the bar under Section 407(2) CrPC.
There shall be no order as to costs.
Miscellaneous petitions pending, if any, shall stand closed.
________________ B.S BHANUMATHI, J 03rd August, 2022 RAR