Karnataka High Court
Sri Ravikiran S vs Ravikumar B on 30 January, 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF JANUARY, 2020
BEFORE
THE HON'BLE MR.JUSTICE B.A. PATIL
CRIMINAL PETITION NO.8382/2019
C/W
CRIMINAL PETITION NO.8671/2019
IN CRL.P.NO.8382/2019
BETWEEN:
Sri Ravikiran S
S/o M.S.Srinivas,
Aged about 30 years,
No.11/1, Arakere Main Road,
Bannerughatta Road,
Bengaluru-560 076. ... Petitioner
(By Sri Pateel G.S., Advocate)
AND:
Ravikumar B
S/o Basavaraju,
Aged about 35 years,
R/at No.30, Arakere Road,
Opp to Domminos Pizza,
Bannerghutta Road,
Bengaluru-560 076. ... Respondent
(By Sri Subash Reddy V, HCGP)
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This Criminal Petition is filed under Section 407 of
Cr.P.C. praying to set aside the order dated 25.09.2019
passed by the Principal City Civil and Sessions Judge,
Bengaluru in Crl.Misc.No.6395/2019 consequently by
transferring the C.C.No.6251/2018 pending on the file
of XX Addl.C.M.M., Bengaluru to any other
Addl.C.M.M., Bengaluru.
IN CRL.P.NO.8671/2019
BETWEEN:
M. S. Srinivas
S/o Late L. Sundarraj,
Aged about 59 years,
No.11/1, Arakere Main Road,
Bannerughatta Road,
Bengaluru-560 076. ... Petitioner
(By Sri Pateel G.S., Advocate)
AND:
Ravikumar B
S/o Basavaraju,
Aged about 35 years,
R/at No.30, Arakere Road,
Opp to Domminos Pizza,
Bannerghutta Road,
Bengaluru-560 076. ... Respondent
(By Sri Subash Reddy V, HCGP)
This Criminal Petition is filed under Section 407(2)
of Cr.P.C. praying to order for transferring the
C.C.No.29702/2018 pending on the file of the 20
ACMM, Bengaluru to any other Additional Chief
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Metropolitan Magistrate Court, Bengaluru and to set
aside the order dated 25.09.2019 passed by the
Principal City Civil and Sessions Judge, Bengaluru in
Crl.Misc.No.6394/2019 consequently by allowing this
petition.
These Criminal Petitions are coming on for
Admission, this day, the Court made the following:
COMMON ORDER
These criminal petitions have been filed by the petitioners/accused under Section 407 of Cr.P.C., to set aside the order passed by the Principal City Civil and Sessions Judge, Bengaluru in Crl.Misc.Nos.6394/2019 and 6395/2019 and to transfer C.C.Nos.29702/2018 and 6251/2018 pending on the file of the XX Additional Chief Metropolitan Magistrate, Bengaluru to any other Additional Chief Metropolitan Magistrate Court, Bengaluru.
2. I have heard the learned counsel for the petitioners/accused and learned counsel for the respondent.
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3. The facts of the case are that the respondent has filed complaint under Section 138 of the Negotiable Instruments Act, 1881 against the petitioners/accused. When the matter was pending before the XX Additional Chief Metropolitan Magistrate, Bengaluru, the petitioners/accused filed Crl.Misc.Nos.6394/2019 and 6395/2019 under Section 408 of Cr.P.C., seeking transfer of C.C.Nos.29702/2018 and 6251/2018 alleging that the XX ACMM, Bengaluru has personal biased as against the petitioners/accused. Learned Principal District and Sessions Judge after considering the material placed on record, dismissed the petitions. Challenging the same, the petitioners/accused is before this Court.
4. It is the submission of the learned counsel for the petitioners/accused that the Presiding Officer has personally biased as against the petitioners/accused and has not afforded any -5- opportunity to the Advocate for the petitioners/accused to cross-examine the complainant in all aspects of the matter. It is his further submission that learned Magistrate has openly expressed in the Court to take transfer of file to some other court itself creates apprehension in the mind of the petitioners/accused to proceed further before the same Magistrate. It is his further submission that during the course of the cross- examination, not allowing the petitioners/accused to put right question to the witness has created judicial bias. It is his further submission that certain documents have been got marked and when the advocate for the accused wanted to bring some other materials to confront such documents to respondent/complainant, learned Magistrate has not allowed advocate for the accused to cross-examine on the said aspects. He further submits that the respondent/complainant has given some statements before the Police and when the said statement is -6- intended to be confronted to the witness, learned Magistrate was not heeding to the request and refused the said prayer. On these grounds, he prays to allow the petition.
5. Per contra, learned counsel for the respondent/complainant vehemently argued and submitted that the petitioners/accused is in the habit of dragging the case on one trick or the other as and when the application has been filed and if it is rejected he has preferred revision petition before this Court and even on one of such case, this Court has imposed heavy cost of Rs.25,000/- by allowing the said petition. That itself shows the conduct of the petitioners/accused to show that they are not interested and intending to proceed with the case. It is his further submission that there is no material to show that the Presiding Officer has personally biased and in no way he is related to the respondent/complainant. He further submits that -7- transfer order cannot be passed as a matter of routine or merely because an interested party has expressed some apprehension about proper conduct of the trial. In this regard, he has relied upon the decisions of the Hon'ble Apex Court in the case of USMANGANI ADAMBHAI VAHORA v. STATE OF GUJARAT AND ANR. reported in AIR 2016 SC 336 and another decision in the case of ASHISH CHADHA v. SMT. ASHA KUMARI AND ANR. reported in AIR 2012 SC 431. On these grounds, he prayed to dismiss the petitions.
6. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for the parties and perused the records.
7. On close reading of the contents of the documents and submission, the main contention of the petitioners/accused is that the learned Magistrate has not given an opportunity to the learned advocate appearing for the accused fully and properly to cross- -8- examine and he is not allowing to put proper question. Learned Principal District Judge after perusal of the cross-examination of PW.1, he has come to the conclusion that the court below has allowed the learned counsel for the petitioners/accused to cross-examine and confront the documents and even some documents have also been marked during the course of the cross- examination.
8. Be that as it may. When the learned counsel for the petitioners/accused has come up with the specific case of personal bias, then under such circumstances, he has to come up with cogent and effective material so as to substantiate his contention, how the Presiding Officer of the Magistrate Court has personally biased. Merely because, he has not allowed the learned advocate for the accused to put several questions and requested to put relevant questions pertaining to the case which was under trial, then -9- under such circumstances, it cannot be held as he has personally biased. Whenever such allegations if they come before the Court without there being any material, under such circumstances such allegations are to be deprecated. If such allegations are entertained, then, no Magistrate could work in any Courts and it is well settled proposition of law that during the cross- examination only relevant and admissible cross- examination has to be permitted and if the learned Magistrate acted in accordance with law then under such circumstances, it cannot be held as personally biased. Even the records go to show that there is no other allegations made in respect of Presiding Officer. In the case of USMANGANI ADAMBHAI (quoted supra) at Paragraph No.11, it has been observed as under;
"11. The aforesaid passage, as we perceive, clearly lays emphasis on sustenance of majesty of law by all concerned. Seeking transfer at the drop of a hat is inconceivable. An order of transfer is
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not to be passed as a matter of routine or merely because an interest party has expressed some apprehension about proper conduct of the trial. The power has to be exercised cautiously and in exceptional situations, where it becomes necessary to do so to provide credibility to the trial. There has to be a real apprehension that there would be miscarriage of justice."
9. In the said decision, it has been observed that power conferred with the Court under Section 407 of Cr.P.C., has to be exercised cautiously and in exceptional situations but not as a routine and even the submission if they are taken its entirety, then under such circumstances, I am of the considered opinion that there are no good grounds made out so as to exercise the power under Section 407 of Cr.P.C., to transfer the case which is pending on the file of the learned Magistrate.
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10. I have carefully gone through the submissions of the learned counsel appearing for the parties and perused the orders of the learned Principal District and Sessions Judge. Learned Principal District and Sessions Judge after considering the factual matrix of the case, has come to the conclusion that there are no good grounds to interfere with the order of the Court below. The above petitions are devoid of merits and the same are liable to be dismissed. Accordingly, dismissed.
In view of disposal of main petitions, I.A.No.1/2019 in both the case do not survive for consideration and the same are also dismissed.
Sd/-
JUDGE HA/-