Karnataka High Court
Mohammed Khaja Mohinuddin S/O Mohammed ... vs Sayad Masoom @ Gora Masoom S/O Sayad ... on 16 May, 2023
Crl.P Nos.201507/2022
C/w 201509/2022
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 16TH DAY OF MAY, 2023
BEFORE
THE HON'BLE MR JUSTICE S RACHAIAH
CRIMINAL PETITION. NO. 201507 OF 2022
C/W.
CRIMINAL PETITION.NO. 201509 OF 2022
IN CRIMINAL PETITION.NO. 201507/2022
BETWEEN
MOHAMMED KHAJA MOHINUDDIN
S/O MOHAMMED JAFAR HUSSAIN
AGE: 36 YEARS, OCC: HOTEL WORK
R/O H NO. 3-12-63, BEROONQUILLA RAICHUR
DIST. RAICHUR
...PETITIONER
(BY SRI. AVINASH A. UPLOANKAR AND
SRI. RAVI K ANOOR, ADVOCATES)
AND
1. BANDEKHAJA @ KHAJABANDA @ BANDA @ KHAJA
S/O SHEKSHAVALI, AGE: 28 YEARS
OCC: CENTERING WORK
R/O NEAR YUSUF KHAN HOUSE
KALATAB NEAR SIYATALAB
RAICHUR-584101
2. KHALID PASHA KHALID S/O NOORPASHA
AGE: 30 YEARS, OCC: STICHING OF BAGS
R/O KHALATALAB, SIYALATALAB
BESIDE HINDU VARDAMAN SCHOOL
RAICHUR-584101
3. SADIK SHAIK @ SADHIK S/O MEHABOOB SHAIK
AGE: 35 YEARS, OCC: AUTO DRIVER
R/O MEDAR WADI CHOWK, BEHIND HASSEIN HOTEL
SIYATALAB RAICHUR-584101
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4. ASHAPPA @ ASHA S/O NAGAPPA
AGE: 26 YEARS, OCC: AUTO DRIVER
R/O 12-12-37
ARAB MOHALLA COURT ROAD
RAICHUR-584101
5. MAHIBOOB @ MAHIBOOB SHAI S/O SHAIK SALEEM
AGE: 20 YEARS, OCC: DRIVER
R/O 8-5-19/3, AYYABOUDI
MADDIPET RAICHUR-584101
6. KHAJA MOHINUDDIN @ MOHINABAYI @ MOHIN
S/O LATE BABUMIYA, AGE: 32 YEARS
OCC: LORRY OWNER
R/O ARAB MOHALLA
RAICHUR-584101
7. SYED MASUM @ GORE MASUM @ MASOOM
S/O APSARA ALI @ SYED ABBAS ALI
AGE: 40 YEARS OCC: NIL
R/O SIYATALAB
RAICHUR-584101
8. RIYAZ S/O MOHAMMED ABDULLA
AGE: 40 YEARS OCC: NIL
R/O SIYATALAB
RAICHUR-584101
9. THE STATE THROUGH
RAILWAY POLICE STATION RAICHUR
DIST. RAICHUR
NOW REPRESENTED BY
ADDL. S.P.P HIGH COURT OF KARNATAKA,
KALABURAGI BENCH - 585107
....RESPONDENTS
(BY SRI. S V. DESHMUKH, ADVOCATE FOR R1 TO R8;
SRI. PRAKASH YELI, ADDITIONAL STATE PUBLIC PROSECUTOR
FOR R9)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 407
OF CR.P.C. PRAYING TO TRANSFER S.C NO.07/2021 OF
RAILWAY P.S, PENDING BEFORE II ADDL DISTRICT &
SESSIONS JUDGE AT RAICHUR TO ANY OF THE SESSIONS
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COURT OUTSIDE THE JURISDICTION OF HYDERABAD
KARNATAKA REGION, PREFERABLY AT BELGAUM SESSIONS
COURT.
IN CRIMINAL PETITION.NO. 201509 OF 2022
BETWEEN
MOHAMMED KHAJA MOHINUDDIN
S/O MOHAMMED JAFAR HUSSAIN
AGE: 36 YEARS, OCC: HOTEL WORK
R/O: H NO. 3-12-63, BEROONQUILLA RAICHUR
DIST. RAICHUR
...PETITIONER
(BY SRI. AVINASH A. UPLOANKAR AND
SRI. RAVI K. ANOOR, ADVOCATES)
AND
1. SAYAD MASOOM @ GORA MASOOM S/O SAYAD AFSAR
AGE: 42 YEARS, OCC: POLITICIAN
R/O: SIYATALAB RAICHUR
DIST.RAICHUR-584101
2. RIYAZ S/O MOHAMMED ABDULLA
AGE: 38 YEARS, OCC: SOCIAL WORKER
R/O: SIYATALAB RAICHUR
DIST.RAICHUR-584101
3. SYED AFSAR S/O AMEER PASHA
AGE: 38 YEARS, OCC: TECHNICIAN
R/O: SIYATALAB RAICHUR
DIST.RAICHUR-584101
4. MOHAMMED YASIN S/O SHAIK AHAMMED
AGE: 26 YEARS, OCC: WELDER
R/O: SIYATALAB RAICHUR
DIST.RAICHUR-584101
5. SYED AJJIMUDDIN S/O SYED ALI MODDIN
AGE: 38 YEARS, OCC: CABLE OPERATOR
R/O: ARAB MOHALLA RAICHUR
DIST.RAICHUR-584101
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6. KASHINATH S/O SHANKAR RAO
AGE: 38 YEARS, OCC: LABOUR
R/O: MANGALWARPET DIST.RAICHUR
7. ANWAR @ CHICHCHA S/O YAQOOB
AGE: 40 YEARS, OCC: DRIVER
R/O: H NO. 12-8-237,
NEAR KOLMI CROSS RAICHUR
DIST. RAICHUR-584101
8. RAJA @ RAJA BAKSHA S/O NAZEER AHAMED
AGE: 36 YEARS, OCC: SOCIAL WORKER
R/O: VADDAR ONI SIYATALAB RAICHUR
DIST.RAICHUR-584101
9. KALEEM S/O KHAJA
AGE: 25 YEARS, OCC: NIL
R/O: SIYATALAB RAICHUR
DIST.RAICHUR-584101
10. THE STATE THROUGH
SADAR BAZAR POLICE STATION RAICHUR
DIST. RAICHUR NOW REPRESENTED BY
ADDL. S.P.P HIGH COURT OF KARNATAKA,
KALABURAGI BENCH- 585107
....RESPONDENTS
( BY SRI S V, DESHMUKH, ADVOCATE FOR R1 TO R9;
SRI PRAKASH YELI, ADDITIONAL STATE PUBLIC PROSECUTOR
FOR R10)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 407
OF CR.P.C. PRAYING TO TRANSFER S.C.NO.12/2021 (SADAR
BAZAR P.S OF RAICHUR) PENDING BEFORE II ADDL DISTRICT
& SESSIONS JUDGE AT RAICHUR TO ANY OF THE SESSIONS
COURT OUTSIDE THE JURISDICTION OF HYDERABAD
KARNATAKA REGION, PREFERABLY AT BELGAUM SESSIONS
COURT.
THESE CRIMINAL PETITIONS HAVING BEEN HEARD
THROUGH PHYSICAL HEARING / VIDEO CONFERENCING
HEARING AND RESERVED ON 19.04.2023, AT KALABURAGI
BENCH, COMING ON FOR PRONOUNCEMENT OF ORDER,
BEFORE THE PRINCIPAL BENCH AT BENGALURU, THROUGH
VIDEO CONFERENCING, THIS DAY, THE COURT MADE THE
FOLLOWING:
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ORDER
These transfer petitions are filed by the complainant seeking to transfer S.C No.7/2021 and S.C No.12/2021 pending on the file of II Additional District and Sessions Judge at Raichur to any of the Sessions Court beyond the jurisdiction of Raichur.
Brief facts of the case:
2. The petitioner is the complainant in Crime No.81/2020, which is registered for the offences punishable under Sections 143, 147, 149, 302, 148 of the Indian Penal Code, 1860 (for short 'IPC'). The petitioner had five brothers.
His elder brother was working as Corporator in Ward No.8. It is stated that, the younger brother of the petitioner namely Mohammed Sadiq Pasha and his friend Zameer Pasha were killed by the accused and the dead bodies were thrown on the railway track. A complaint came to be lodged by his elder brother namely Mohammed Shalam, who was working as a Corporator, against the accused. The police have registered a case in Crime No.8/2020 for the offences punishable under Sections 302 and 201 of IPC. The accused persons were not Crl.P Nos.201507/2022 C/w 201509/2022 -6- arrested in spite of complaint having been lodged for the offence under Section 302 of IPC.
3. The complainant being a Corporator, used to insist the police to arrest the accused for having committed the murder of his younger brother and his friend. The accused have decided to kill the complainant. Accordingly, on 28.09.2020, at about 9.00 p.m., they have assaulted Mohammed Shalam, who is the elder brother of the petitioner and caused injuries on various parts of the body. The petitioner came to know the said facts through his friends. Having come to know the assault being made against his brother, he rushed to the spot and shifted his brother to the hospital. However, it was declared as brought dead. Hence, a complaint came to be lodged against the accused for the offence punishable under Section 302 of IPC. The police have registered a case in Crime No.81/2020.
4. Heard Sri.Avinash A.Upaloankar and Sri.Ravi K. Anoor, learned counsel for the petitioner in both the cases, Sri.S.V.Deshmukh, learned counsel for the respondent Nos.1 to 8 and Sri.Prakash Yeli, learned Additional State Public Prosecutor for respondent No.9 in Crl.P No.201507/2022 and Crl.P Nos.201507/2022 C/w 201509/2022 -7- Sri.S.V.Deshmukh, learned counsel for the respondent Nos.1 to 9 and Sri.Prakash Yeli, learned Additional State Public Prosecutor for respondent No.10 in Crl.P No.201509/2022.
5. It is the submission of the learned counsel for the petitioner that, the present petitioner had lost his two brothers and also another person who is friend of his brother. It is stated that, the police have conducted investigation and submitted the charge sheet in both the cases. After committal of those two cases, the prosecution examined some of the witnesses and the eyewitnesses to the incident are yet to be examined. It is further submitted that, there is a threat to the present petitioner and other witnesses. It is alleged that, the respondents are influencing and threatening the witnesses on one or the other pretext and trying to win over them. Further, it is submitted that, since there is a threat to the witnesses, the case has to be transferred to some other Sessions Court, other than the present Court. It is further submitted that, the petitioner is ready to bear the expenditure of the witnesses, if the case is transferred to some other jurisdiction. Making such submissions, the learned counsel for the petitioner prays to allow the petitions and transfer the cases from II Additional Crl.P Nos.201507/2022 C/w 201509/2022 -8- District and Sessions Judge at Raichur to some other Sessions Court.
6. Per contra, Sri.Prakash Yeli, learned Additional State Public Prosecutor appearing for the respondent-State vehemently opposed the transfer of the cases from II Additional District and Sessions Judge, Raichur to any other Court and submitted that, adequate security will be provided in order to protect the interest of the witnesses and also proper care will be taken for their safety and security. It is further submitted that, mere threat for the witnesses cannot be considered as a ground to transfer the cases from Raichur to some other Court. Making such submissions, the learned Additional State Public Prosecutor for the respondent-State prays to dismiss the petitions.
7. Sri.S.V.Deshmukh, learned counsel for the respondent Nos.1 to 8 in Crl.P.No.201507/2022 and respondent Nos.1 to 9 in Crl.P.No.201509/2022 opposed the transfer of the cases from II Additional District and Sessions Judge, Raichur to some other Court.
8. Heard the learned counsel for the respective parties and also perused the reasons assigned in the petitions. Crl.P Nos.201507/2022
C/w 201509/2022 -9- Admittedly, the petitioner had lost his two brothers. It is stated in the petitions that, there is a threat to the petitioner in both the cases to depose before the Court. On careful perusal of the charge sheet, it appears that, all the witnesses, who claim to be the eyewitnesses, are the residents of Raichur. On perusal of the averments of the petitions, nowhere it is stated how the petitioner was threatened by the respondents. It is an admitted fact that, no complaints have been lodged against the respondents for the threat alleged to have been given to the petitioner. If the threats were to be true, the petitioner would have lodged complaint against the respondents before the jurisdictional police for the threats. Mere making allegations of threat would not be sufficient to transfer the case from the Court having jurisdiction to some other Court.
9. Admittedly, the learned Additional State Public Prosecutor for respondent-State has submitted that, adequate protection would be provided to the witnesses till completion of their evidence. Having considered the said submission, it is appropriate at this stage to direct the jurisdictional Superintendent of Police and concerned officers to provide adequate police protection to the eyewitnesses till completion of their evidence. If such protection is provided, transfer of Crl.P Nos.201507/2022 C/w 201509/2022
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cases from II Additional District and Sessions Judge at Raichur to some other Court would not arise.
10. In view of the observation made above, I proceed to pass the following:
ORDER
i) The petitions stand dismissed.
ii) Considering the submissions of the learned counsel for the petitioner and also the submissions of the learned Additional State Public Prosecutor for the respondent -
State, the Superintendent of Police, Raichur is directed to provide adequate and sufficient protection to the eyewitnesses till completion of their evidence. If any untoward incident happens to the witnesses, the Superintendent of Police, the jurisdictional Deputy Superintendent of Police and Inspector of Police are held responsible and also answerable for their inefficiency.
iii) The Trial Court is directed to complete the evidence of the eyewitnesses as early as possible, not later than two months from the date of receipt of this order. Crl.P Nos.201507/2022
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iv) The Registry is directed to communicate this order to the Trial Court forthwith.
Sd/-
JUDGE UN