Wednesday 1 June 2016

When court will not allow inter district transfer of case?

 Having heard the learned counsel for the
Applicant   as   well   as   learned   A.P.P.   and
considering   the   Judgment   of   the   Hon'ble   Supreme
Court   in   the   matter   of   "  Nahar   Singh   Yadav   and
another   vs.   Union   of   India",   cited   supra,   it   is
clear   that   comparative   hardship   is   a   matter   of
consideration.   In   the   present   matter,   the
Applicant   is   claiming   that   he   would   suffer
hardship   because   of   medical   reason.   However,   if
copy of charge sheet, which has been shown at the
time   of   arguments,   is   perused,   there   are   28
witnesses.   The   witnesses   are   from   Nandurbar   area
and asking so many witnesses/persons to travel to
Nashik for the convenience of the Applicant, does
not appear to be justified. Experience shows as to
how   at   times   trials   prolong   and   witnesses   are

required to keep coming again and get frustrated.
Inconvenience of so many people cannot be ignored
only   because   Applicant   will   be   put   to   some
inconvenience. If he is under suspension, time is
at his disposal.
 As   regards   the   apprehension   that   the
Applicant would not get fair trial, there does not
appear basis for the same, other than pointing out
that  various  actions  were taken  by the Applicant
against the distributors, dealers and shop owners.
The Judgment of the Hon'ble Supreme Court in the
case of "Nahar Singh Yadav and another vs. Union
of   India",  cited   supra,   also   mentions   in   factor
(v)   that   there   has   to   be   “some   material”   from
which it can be inferred that some persons are so
hostile that they are interfering or are likely to
interfere   either   directly   or   indirectly   with   the
course   of   justice.   Merely   because   the   Applicant
has taken action against some persons, the same is
not  sufficient  to show that  there  is possibility

of   the   persons   going   out   to   the   extent   of
influencing  the  witnesses  and taking  the risk of
charge   of   tampering   with   evidence.   Again,   as
stated, most witnesses are Government Officials. I
do not think that ground is made out for transfer
of the Sessions Case.
                                       
     IN  THE HIGH COURT OF JUDICATURE AT BOMBAY 
BENCH AT AURANGABAD
   CRIMINAL APPLICATION NO.290 OF 2014
Sanjay Babasaheb Deshmukh,

       VERSUS             
The State of Maharashtra,   

              CORAM:  A.I.S. CHEEMA, J.
              DATE : 29TH APRIL, 2014
 Citation: 2016 ALLMR(CRI)1014
                                  

1. Admit. Heard finally with the consent of
the   learned   counsel   for   the   parties.   This
Application  is filed  under Section  407 read  with

482 of the Code of Criminal Procedure, 1973, for
transfer of the Special Case.
2. Learned   counsel   for   the   Applicant
submitted   that   the   Applicant   was   working   as
District   Agriculture   Officer   at   Nandurbar   when
charge­sheet came to be filed on the basis of trap
laid   under   the   provisions   of   the   Prevention   of
Corruption  Act,  1988.  Special  Case No.21  of 2013
is   pending   in   the   Court   of   Special   Judge,
Nandurbar.   Learned   counsel   for   the   Applicant
submitted   that   the   Applicant­Accused,   in   the
course   of   his   posting   at   Nandurbar,   had   carried
out   various   raids   and   taken   various   actions
against the dealers, distributors and shop owners.
According   to   the   learned   counsel   for   Applicant,
the Applicant has apprehension if the trial takes
place at Nandurbar, such dealers, distributors and
shop  owners  will  influence  the witnesses  and the
Applicant   will   not   get   fair   trial.   The   learned
counsel   referred   to   copies   of   documents   at   Page

Nos.17 to 112, to show how the Applicant and his
team   of   officers   had   taken   various   actions   and
even   there   were   seizures   of   stocks.   Learned
counsel   submitted   that   the   Applicant   has   thus
apprehension that the witnesses will be influenced
by   the   persons   against   whom   the   Applicant   has
taken action during his posting at Nandurbar.
3. It   is   argued   that   the   Applicant   is
suffering   from   spondylosis   and   learned   counsel
referred   to   document   at   Exhibit   C   whereby   the
Doctor   has   advised   the   Applicant   not   to   sit   for
long   and   travelling   for   the   Petitioner   is
difficult.   The   learned   counsel   submitted   that   on
these two grounds of apprehension and for medical
reasons,   the   Applicant   wants   the   Petition   to   be
transferred   from   the   Court   at   Nandurbar   to   the
Court at Nashik.
4. The   learned   counsel   submitted   that   the
Applicant,   after   the   suspension,   has   been   given

his Head Quarter at Nashik and thus for attending
the   matter,   he   has   to   travel   from   Nashik   to
Nandurbar.   Reliance   was   placed   on   the   case   of
Nahar Singh Yadav and another vs. Union of India,
reported  in A.I.R.  2011  Supreme  Court  Page 1549.
The   learned   counsel   submitted   that   the   Supreme
Court laid down some broad factors which could be
kept   in   mind   while   considering   application   for
transfer   of   the   trial.   Para   24   of   the   Judgment
reads as under:­
"24.   Thus,   although   no   rigid   and
inflexible   rule   or   test   could   be   laid
down to decide whether or not power under
Section   406   of   the   Cr.P.C.   should   be
exercised,   it   is   manifest   from   a   bare
reading   of   sub­sections   (2)   and   (3)   of
the   said   Section   and   on   an   analysis   of
the decisions of this Court that an order
of transfer of trial is not to be passed
as a matter of routine or merely because
an   interested   party   has   expressed   some
apprehension about the proper conduct of
a trial. This power has to be exercised

cautiously and in exceptional situations,
where   it   becomes   necessary   to   do   so   to
provide credibility to the trial. Some of
the broad factors which could be kept in
mind while considering an application for
transfer of the trial are:­
(i)   when   it   appears   that   the   State
machinery   or   prosecution   is   acting   hand
in glove with the accused, and there is
likelihood of miscarriage of justice due
to   the   lackadaisical   attitude   of   the
prosecution,
(ii) when there is material to show that
the accused may influence the prosecution
witnesses or cause physical harm to the
complainant,
(iii)   comparative   inconvenience   and
hardships   likely   to   be   caused   to   the
accused, the complainant/the prosecution
and the witnesses, besides the burden to
be borne by the State Exchequer in making
payment of travelling and other expenses
of   the   official   and   non­official
witnesses,

(iv) a communally surcharged atmosphere,
indicating   some   proof   of   inability   of
holding fair and impartial trial because
of the accusations made and the nature of
the crime committed by the accused; and
(v) existence of some material from which
it can be inferred that some persons are
so hostile that they are interfering or
are   likely   to   interfere   either   directly
or   indirectly   with   the   course   of
justice."
. Learned   counsel   for   the   Applicant
submitted that he is relying on factor (iii) and
(v), in support of his contentions for making the
present request for transfer.
5. Learned   A.P.P.   opposed   the   Petition
contending   that   all   the   witnesses   are   from
Nandurbar and most of the witnesses are Government
servants   and   so   there   is   no   basis   for
apprehension.   She   submitted   that   the   Applicant

just  cannot  presume  that    persons  concerned  will
influence and there is no basis for apprehension.
Applicant's   inconvenience   compared   with   so   many
witnesses being made to travel is not comparable.
6. Having heard the learned counsel for the
Applicant   as   well   as   learned   A.P.P.   and
considering   the   Judgment   of   the   Hon'ble   Supreme
Court   in   the   matter   of   "  Nahar   Singh   Yadav   and
another   vs.   Union   of   India",   cited   supra,   it   is
clear   that   comparative   hardship   is   a   matter   of
consideration.   In   the   present   matter,   the
Applicant   is   claiming   that   he   would   suffer
hardship   because   of   medical   reason.   However,   if
copy of charge sheet, which has been shown at the
time   of   arguments,   is   perused,   there   are   28
witnesses.   The   witnesses   are   from   Nandurbar   area
and asking so many witnesses/persons to travel to
Nashik for the convenience of the Applicant, does
not appear to be justified. Experience shows as to
how   at   times   trials   prolong   and   witnesses   are

required to keep coming again and get frustrated.
Inconvenience of so many people cannot be ignored
only   because   Applicant   will   be   put   to   some
inconvenience. If he is under suspension, time is
at his disposal.
7. As   regards   the   apprehension   that   the
Applicant would not get fair trial, there does not
appear basis for the same, other than pointing out
that  various  actions  were taken  by the Applicant
against the distributors, dealers and shop owners.
The Judgment of the Hon'ble Supreme Court in the
case of "Nahar Singh Yadav and another vs. Union
of   India",  cited   supra,   also   mentions   in   factor
(v)   that   there   has   to   be   “some   material”   from
which it can be inferred that some persons are so
hostile that they are interfering or are likely to
interfere   either   directly   or   indirectly   with   the
course   of   justice.   Merely   because   the   Applicant
has taken action against some persons, the same is
not  sufficient  to show that  there  is possibility

of   the   persons   going   out   to   the   extent   of
influencing  the  witnesses  and taking  the risk of
charge   of   tampering   with   evidence.   Again,   as
stated, most witnesses are Government Officials. I
do not think that ground is made out for transfer
of the Sessions Case.
8.  For the reasons stated above, I find that
there   is   no   merit   in   the     Criminal   Application.
The Criminal Application stands rejected.
                               [A.I.S. CHEEMA, J.]

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