Andhra Pradesh High Court - Amravati
K.Sriramulu vs T.Mariyadasu on 17 December, 2020
1
THE HON'BLE SMT JUSTICE LALITHA KANNEGANTI
TRANSFER CRIMINAL PETITION NO.25 of 2019
ORDER:
This transfer petition is filed under Section 407 of the Code of Criminal Procedure, 1973 (for short 'Cr.P.C.') seeking to transfer C.C.No.378 of 2017 on the file of the learned Additional Junior Civil Judge, Chilakaluripet to the file of the learned Special Sessions Judge constituted for the Trial of Cases under SC, ST (POA) Act, Guntur - Cum-IV Additional Sessions Judge, Guntur to be tried along with S.C.No.72/S/2017.
2. The petitioners herein are complainants in F.I.R.No.82 of 2016 registered against the unofficial respondents herein, which is numbered as C.C.No.378 of 2017 and accused in F.I.R.No.81 of 2016 which is numbered as S.C.No.72/S/2017 on the file of Special Sessions Judge constituted for the Trial of Cases under SC, ST (POA) Act, Guntur - Cum-IV Additional Sessions Judge, Guntur. The parties shall be referred to as they are arrayed in C.C.No.378 of 2017 i.e. petitioners/complainants and respondent Nos.1 to 9/accused.
3. The case of the petitioners/complainants is that on 11.09.2016 when petitioner No.1 reached MRO office on his way to the fields, he noticed respondent Nos.5 to 8. While petitioner No.1 was waiting for his elder brother i.e. petitioner No.2, the above accused abused them stating that whoever intends to attack their leader i.e. respondent 2 No.9 they will do away with their life. Petitioner No.1 has complained the same to one Bujji and went away to the fields. As there was down pour of rain, he returned back to the MRO office at 6:30 P.M. and on noticing the presence of Tummapudi Mastan and Tummapudi Singaiah, elders of SC community asked them to enquire with respondent Nos.5 to 7/accused as to why they have earlier abused petitioner No.1 at about 5:00 P.M. Looking at the conversation of the petitioners with SC leaders respondent No.1 came to petitioner No.1 and pushed him away using unparliamentary words. There has been spat between the parties. When petitioner No.2 came there the accused pounced upon petitioner Nos.1 and 2 and kicked them. At that point of time there are several other persons who also witnessed the incident. Basing on the complainant given by petitioner No.1 herein F.I.R.No.82 of 2016 was registered whereas on the other hand respondent No.1 who belongs to the SC community has given complaint stating that these petitioners have abused them in the name of caste, basing on which crime No.81 of 2016 was registered and charge sheets were filed in both the crimes, which were subsequently numbered as C.C.No.378 of 2017 and S.C.No.72/S/2017 respectively. Since both the cases arise out of one crime the petitioners are before this Court seeking transfer of C.C.No.378 of 2017 to avoid conflicting of judgments.
4. Heard T.Durga Prasad, learned counsel for the petitioners, Sri V.Surya Kiran Kumar, learned counsel for respondent No.9 and the learned Public Prosecutor for respondent Nos.10 and 11. 3
5. Learned counsel for the petitioners submits that both the cases arise out of the same incident and are case and counter case. If these cases are tried by two different Courts there is every likelihood of conflicting judgments. Therefore, they have to be tried by the same Court. In support of his contention he relies on the decision of the Hon'ble Supreme Court in Nathi Lal and Others v. State of U.P. and another1 wherein it was held that in cross cases, each case has to be decided on the basis of evidence placed on record in that particular case without being influenced by the evidence or arguments urged in cross case and Judgments should be pronounced by the same Judge one after the other. He also placed reliance on a decision in State of M.P. v. Mishrilal (Dead) and Others2 which stands on similar footing.
6. In another decision in Sudhir and Others v. State of M.P.3 it was held as under:
"It is a salutary practice, when two criminal cases relate to the same incident; they are tried and disposed of by the same Court by pronouncing judgments on the same day. Such two different versions of the same incident resulting in two criminal cases are compendiously called "case and counter-case" by some High Courts and "cross-cases" by some other High Courts.
....1
1990 (Supp) SCC 145 2 2003 (9) SCC 426 3 2001(2)SCC 688 4 Where one of the two cases (relating to the same incident) is charge- sheeted or complained of, involves offences or offence exclusively triable by a Court of Sessions, but none of the offences involved in the other case is exclusively triable by the Sessions Court, the Magistrate has no escape from committing the former case to the Sessions Court as provided in Section 209 CrPC. Though, the next case cannot be committed in accordance with Section 209 of the Code, the Magistrate has, nevertheless, power to commit the case to the Court of Session. Section 323 is incorporated in CrPC to meet similar cases also."
7. Learned counsel for the petitioners submits that in view of the above law laid down by the Hon'ble Supreme Court, the petitioners may be granted the relief as prayed for.
8. Learned counsel for the respondents submits that trial has already commenced in C.C.No.378 of 2017 and he vehemently opposed the transfer petition.
9. In reply the learned counsel for the petitioners submits that as per Section 407 of the Cr.P.C. there is no bar for transferring the case from one Court to another by the High Court. Whenever the Court feels it appropriate, even though trial has commenced the Court can order for transfer of cases. In support of this contention, learned counsel for the petitioners relied upon a decision Ajay Singh and Another v. State of Chhattisgarh and another4, wherein the Hon'ble Supreme Court observed that Article 227 of the Constitution of India confers power of superintendence on the High Court over the Courts and tribunals within the territory of the State. The High Court has the 4 2017 (3) SCC 330 5 jurisdiction and the authority to exercise suo motu power. In the said case it was held that the High Court on the administrative side had transferred the case to the learned Sessions Judge by which it has conferred jurisdiction on the trial Court which has the jurisdiction to try the Sessions Case under Cr.P.C. and found no illegality in transferring the same.
10. He also relied on another decision in Himanshu Singh Sabharwal v. State of Madhya Pradesh and Others5, wherein transfer of case was sought when recall of witnesses was warranted. The Hon'ble Supreme Court has allowed the transfer petition holding that the trial shall commence from the stage it was when the order of stay was passed by the Court.
11. A perusal of the material available on record shows that the date and time of occurrence of the incident is one and the same in both the F.I.Rs., both the cases are 'case and a counter case'.
12. Even though the trial has commenced in C.C.No.378 of 2017, this Court deems it appropriate to transfer the case to the learned special Sessions Judge constituted for the Trial of Cases under SC ST (POA) Act, Guntur-Cum-IV Additional Sessions Judge, Guntur to be tried along with S.C.No.72/S/2017, as the evidence in both the cases is one and the same and if these cases are tried by two different Courts there is every likelihood of conflicting of judgments. Hence, in 5 2008 (3) SCC 602 6 the interest of justice and for convenience of the parties this Court is inclined to grant the relief as prayed for.
13. In the result, this Transfer Criminal Petition is allowed. C.C.No.378 of 2017 is withdrawn from the file of Additional Junior Civil Judge, Chilakaluripet and transferred to the Court of the learned Special Sessions Judge Constituted for the Trial of Cases under SC, ST (POA) Act, Guntur - Cum - IV Additional Sessions Judge, Guntur to be tried along with S.C.No.72/S/2017.
Consequently, Miscellaneous Applications pending, if any, shall stand closed.
_________________________________ JUSTICE LALITHA KANNEGANTI Date: 17.12.2020 IKN 7 THE HON'BLE SMT JUSTICE LALITHA KANNEGANTI (Allowed) TRANSFER CRIMINAL PETITION No.25 of 2019 Date: 17.12.2020 IKN