Monday, 22 August 2016

Whether case can be transferred as accused is old aged and will have to travel long distance?

 Sofar as a transfer plea is concerned, valid and acceptable reasons have
to be demonstrated.  In the present case, transfer is sought for on the
ground of inconvenience of the petitioner on account of his age as well as
his present place of residence.

 Ofcourse, it is quite natural in the present set up, he has to undergo
some inconvenience.  But, the Court has to see whether by this his defence is
prejudiced.  He has engaged a counsel to defend himself.  Except the stated
inconvenience, there is no bottleneck for defending himself as against the
charges levelled against him.  On account of the said inconvenience, we
cannot transfer the case, because it does not appear to be a valid ground.
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT               

DATED: 12.08.2016  

CORAM   
THE HONOURABLE DR.JUSTICE P.DEVADASS            

Crl.O.P. (MD) No.14616 of 2016 
and 
Crl.M.P.(MD) No.6853 of 2016 

Viswam                                          ... Petitioner / Accused
vs.
State, rep.by





Viswam / sole accused in C.C.No.29 of 2014, on the file of the learned
Special Judge under Prevention of Corruption Act, Sivagangai, seeks transfer
of the said Calender Case from Sivagangai to any other Court under the
Prevention of Corruption Act in Chennai.
2. The petitioner is being prosecuted in the said case before the said Court
for his alleged commission of certain offences under the said Act.

3. According to the learned counsel for the petitioner, the petitioner is
aged, now he is in Poonamallee near Chennai, for every hearing he is
travelling for about 1000 kms., to attend the hearing in the said Court in
Sivagangai, which causes him much mental agony, expenses and hardship.  He is  
not interested in drag on the proceedings.  He is ready to participate in the
trial proceedings.  Only on account of the inconvenience, he seeks transfer
of the case from the Court in Sivagangai to a Court in Chennai.

4. On the other hand, the learned Government Advocate (Criminal Side)
submitted that the case has become part-heard.  Some witnesses have been  
examined.  Some more witnesses are going to be produced in the next hearing 
date.  No valid and acceptable reason has been given for transfer of the
case.  In such circumstances, his plea for transfer need not be accepted.

5. I have anxiously considered the rival submissions and perused the
averments in the affidavit filed by the petitioner.


6. The petitioner is accused of having committed a white-collar offence,
while he was serving in a place and now the case is being tried before the
learned Special Judge under the Prevention of Corruption Act @ Sivagangai.
The case has become part-heard. 

7. Sofar as a transfer plea is concerned, valid and acceptable reasons have
to be demonstrated.  In the present case, transfer is sought for on the
ground of inconvenience of the petitioner on account of his age as well as
his present place of residence.

8. Ofcourse, it is quite natural in the present set up, he has to undergo
some inconvenience.  But, the Court has to see whether by this his defence is
prejudiced.  He has engaged a counsel to defend himself.  Except the stated
inconvenience, there is no bottleneck for defending himself as against the
charges levelled against him.  On account of the said inconvenience, we
cannot transfer the case, because it does not appear to be a valid ground.

9. But, at the same time, it is to be noted that the petitioner is now not in
service.  He is not an young man.  He is an old man.  But, case is there.  He
has to face it.  After having out of service, he has become out of mind of
others.  In such circumstances, it is quite natural he has to undergo some
agony.  It will be unavoidable one.  But, there are ample provisions in the
Code of Criminal Procedure, which will enable him to escape from such kind of
inconveniences.

10. Trial must go.  But, at the same time, his inconvenience to extent
possible must also go.  Therefore, he can file a petition before the learned
Special Judge for dispensing with his personal appearance when really his
attendance is not required.  If such a petition is filed, the learned Special
Judge can liberally consider it.  However, there is no bar on the part of the
learned Special Judge to direct him to attend the Court for any 'effective
hearing date' that is to say, when his identity is involved (in a corruption
case it is very rare), for his examination under Section 313 Cr.P.C., incase
need arises to examine him under Section 248 Cr.P.C., for hearing the
Judgment. 

11. Although he is involved in a corruption case, it is also a criminal case.
When his presence is really not necessary for making progress in the case,
why should we trouble him.  Therefore, we are of the view that when the case
is posted only for ordinary hearing, even for examination of witnesses when
his counsel is present, why we should trouble the accused.  These
considerations shall weigh in the mind of the learned Special Judge when a
petition is filed for dispensing with his personal appearance.

12. In the circumstances, this criminal original petition is dismissed with
the above observations and liberty.  Consequently, connected criminal
miscellaneous petition is closed.

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