Bombay High Court
Pandurang Sakharam Dravid And ... vs Kirloskar Brothers Ltd. And Ors. on 3 August, 1990
Equivalent citations: 1991(34)ECR256(BOMBAY)
JUDGMENT K.N. Patil, J.
1. This is an application under Section 407 of the Criminal Procedure Code, for transfer of criminal case No. 9 of 1986 from the Court of Chief Judicial Magistrate, Pune, to the Court of Chief Metropolitan Magistrate or any other Metropolitan Magistrate, Bombay.
2. The petitioner and respondent nos. 1 to 34 are the complainant and accused respectively in the case. Respondent No. 1 is a company manufacturing hermetically sealed compressors which are the main components of refrigerators and air-conditioners. The other respondents barring respondent no.35 are the chairman and directors and officers of the company. Respondent No. 29 is a subsidiary company of the main company. The company has offices located at places all over the country such as Calcutta, Madras, Delhi and Bombay. On the basis of information received by the officers of the Central Excise, Anti-Evasion, that there had been evasion of the payment of Central Excise duty on the goods manufactured by the respondents, the offices and the residential premises of the directors and executives were searched and thousands of documents were seized under panchanamas in the execution of seizure and search warrant On 31.1.1986, a complaint was filed in the Court of C.J.M. Pune against the respondents under Section 9 of the Central Excises & Salt Act, 1944 read with Section 120B of the Indian Penal Code. The learned Magistrate issued process against the respondents. The order of issuance of process was challenged by respondent No. 1 in criminal petition No. 9 of 1986. This Court dismissed the said petition Against the said order respondent no. 1 filed two special leave petitions being S.L.P. and 231 of 1987 which were dismissed by the Supreme Court. Thereafter, the trial commenced before C.J.M. Pune and several witnesses have been examined. The witnesses referred to the seizure and recovery of various documents from the custody and control of the officers of respondent No. 1. The prosecution requested the Magistrate to admit all the documents in evidence under Section 36A of the Central Excises & Salt Act. After hearing both the sides, the C.J.M. passed an order dated 16.11.1987 to the effect that Section 36A was not applicable to a criminal trial and the documents tendered by the prosecution cannot be admitted in evidence. The petitioner filed criminal writ petition no. 1343 of 87 challenging the order of the Magistrate and praying for quashing of the said order and made a further prayer that the trial pending before the Magistrate should be transferred to the Chief Metropolitan Magistrate, Bombay or any other Metropolitan Magistrate, having experience of trying customs & excise cases. It was contended that important questions of unusual difficulty were likely to arise and which questions generally do not arise before the mofussil Court, it would be expedient for the Justice to transfer the case.
3. The aforesaid criminal writ petition was heard by learned single, Judge, Daud J. who by his judgment and order dated 26.8.1988, quashed the order passed by the C.J.M. in respect of inapplicability of Section 36A to the criminal trial and the documents seized from the offices of KBL & KPL but rejected the prayer for transfer of the case. Aggrieved by the judgment and order passed by Daud J., the petitioner filed Special Leave Petition, being SLP No. 3042 of 1988, in the Supreme Court. On 26.8.1988, Their Lordships of the Supreme Court passed the following order:
We see no ground to admit this petition. The special leave petition is dismissed. The dismissal of the special leave petition will not stand in the way of the petitioner moving the High Court for the transfer of the case, if they are to advised, under sec 407 of the Code of Criminal Procedure, 1973.
On 3rd April 1989 the petitioner filed the present application under Section 407(1) of the Criminal Procedure Code. The petitioner prays that the criminal case No. 9 of 1986 on the file of C.J.M. Pune be transferred to the Court of Chief Metropolitan Magistrate, Bombay with a direction that the same may be tried by him and failing which, he may allot to any other Metropolitan Magistrate having experience of conducting customs and excise cases.
4. Mr. Vakil, learned Counsel for the respondents raised a preliminary objection to the maintainability of the application. It was contended that in view of the rejection of the prayer for transfer of the case and dismissal of the special leave petition the petitioner should not be allowed to seek transfer of the case on some grounds.
5. It is true that in the criminal writ petition the transfer of the case was sought on the same grounds and it was rejected. While dismissing the special leave petition No. 3042 of 1988, Their Lordships of the Supreme Court observed as under:
The dismissal of the special leave petition will not stand in the way of the petitioner moving the High Court for the transfer of the case, if they are so advised, under Section 407 of the Code of Criminal procedure 1973.
The criminal writ petition was mainly directed against the order under Section 36A passed by the C.J.M. Pune. In the circumstances, I find that the present application for transfer of the case is maintainable.
6. The High Court can order a transfer of criminal case on any of the grounds specified in Clauses (a) to (c) of Sub-section 1 of Section 407, namely:
(a) That a fair and impartial enquiry or trial is not possible;
(b) That some question of law or unusual difficulty is likely to arise.
(c) That an order under this section is required by the provisions of the Code or will tend to general convenience to parties and witnesses or is expedient for the ends of justice.
7. Mr. Samant, learned Counsel for the petitioner did not press the application, in my opinion rightly, on the ground (a). The learned C.J.M. who had passed an order under Section 36A of the Central Excises & Salt Act, is transferred and the trial will now commence before his successor. In the changed circumstances, the complainant need not have apprehension that he will not get fair and impartial trial.
8 Mr. Samant, learned Counsel for the petitioner referred to the decision in the case of Ramdas Nayak v. A.R. Antulay . Their Lordships while granting transfer observed as under:
Though we have no doubt in our opinion that Mehta J, acted fairly and impartially in disposing of the case. In the manner he did, it cannot be said that there is no scope for apprehension in the appellant's mind that this casa may not receive adequate and proper treatment at the hands of same learned Judge who has expressed himself one way.
In the present case, the C.J.M. who expressed himself in one way as regards applicability of Section 36A to the criminal trial or documents produced in the trial, is transferred and his successor has no occasion to deal with the present case or express a view about the case, one way or the other. The position would have been different had the case been required to sent back to the same learned Judge for trial. The contention that the Magistrate had shown tilt and bias in favour of the respondent has lost force. I am sure that the present C.J.M. will proceed with case strictly according to law.
9. Mr. Samant contended that the Magistrate will have to consider voluminous record as thousands of documents have been seized and produced in the case. It is alleged that the respondents entered into criminal conspiracy to evade excise duty. The Magistrate will have to interpret and apply the provisions of Section 120B of the Criminal Procedure Code. The difficult questions of law of unusual difficulty are likely to arise in the case which is of complicated nature and has far reaching consequences. The Chief Judicial Magistrate or Magistrates in mofussil are not conversant in dealing with such questions. He argued that in Bombay three or four Metropolitan Magistrates are assigned the cases of the customs & excise and have experience of trial of such cases and it would be better if the case is transferred to one of them. I am unable to accept this submission. It may be that C.J.M. will have to consider the factual and legal aspects of the case in which voluminous record is produced but that is no ground to withdraw the case from him and transfer to another Court. The Chief Judicial Magistrate is a Senior Judicial Officer of sufficient experience. Merely because the Magistrate had taken wrong view of the law would not be sufficient to transfer the case. If the arguments of experience of trial of cases by a particular Magistrate it stretched too far, it may lead to choice of a Magistrate which no judicial system can allow. It will shake the confidence of the litigants about the capability of these senior judicial officers to deal with such cases. Apart from this, at present it is not shown that the question of unusual difficulty are likely to raise in the case. Anyway, I find that the petitioner has not been able to make out a case for transfer of the case on this ground.
10. Now it is to be seen whether the case can be transferred under Clause (c) Sub-section 1 of Section 407 Cr.P.C. Clause (c) specify three grounds: (i) requirement of the transfer under any provisions of the Code (ii) General convenience of parties and witnesses (iii) expediciency of the transfer for the ends of justice Mr. Samant did not suggest that it would be convenient for the parties and witnesses to attend Magistrate Court at Bombay nor requirement of the transfer of the case under any provisions of the Cr.P.C. He contended that in the interest of justice, the case should be transferred to the Court of Metropolitan Magistrate, Bombay.
11 The complainant himself filed the complaint in the Court of C.J.M. Pune who has territorial jurisdiction to entertain and try it. There is no material on basis of which it can be inferred that the petitioner should have reasonable apprehension that he would not get fair trial before the C.J.M. Pune The case cannot be transferred because the petitioner wishes that it should be tried by particular Court.
12. Considering the facts and circumstances of the case, I find that there are no grounds to transfer the case, as prayed for by the petitioner.
13. Mr. Vakil, learned Counsel for the respondents argued that the application filed by the petitioner for transfer of the case is vexatious and respondents be awarded compensation. It is difficult to say that the application is frivolous and vexatious. The claim for compensation is, therefore, rejected.
14. In the result, the application fails. Rule discharged. The Chief Judicial Magistrate, Pune is directed to proceed with the case expeditiously and according to law.