Anita Sharma (Smt.) vs State of M.P. and Another

Anil Sharma, J.—The petitioner has preferred this Criminal Revision u/s 397/401 of Cr. P.C. against the order dated 28/09/2011, passed by learned Sessions Judge, Gwalior (MP) in Miscellaneous Criminal Case No. 73/2011, rejecting the application filed by the petitioner u/s 408 of Cr. P.C. for transferring of the pending Criminal Case No. 11645/2009 from the Court of Judicial Magistrate First Class, Gwalior to another Court. The petitioner is complainant in Criminal Case registered against respondent No.2, which is pending for trial before learned Judicial Magistrate First Class, Gwalior (MP). The petitioner moved an application for transfer of the case on an apprehension that learned trial Court has rejected her application u/s 301 of Cr. P.C. and issued bailable warrants against the witnesses. It is further alleged that the order-sheets have been written after getting signature of the complainant.

On perusal of the documents available on record, it is clear that application u/s 301 of Cr. P.C. moved by the petitioner, has been rejected by learned trial Court. The petitioner, who is an Advocate, has already been represented by her counsel, who is assisting Assistant Public Prosecutor and statements of complainant and important witnesses have already been recorded. Hence, her application was rejected by learned trial Court.

It is submitted by learned counsel for the respondent No. 2. that bailable warrants have been ordered to be issued against the witnesses as they were not present on the Court on the date fixed for hearing as they were bound to appear before the Court on the next date fixed for evidence.

Learned counsel for the respondent No. 2 has raised an objection that against order dated 28/09/2011 passed on the application u/s 408 of Cr.P.C. revision does not lie. Only course available to the petitioner to file revision u/s 407(2) of Cr. P.C.

Learned counsel for the respondent No. 2 has drawn attention of this Court to the provisions of Section 407(2) of Cr. P.C. which run as follows:-

Power of High Court to transfer cases and appeals:- (1) xxxxxxxxxxxxxxxxxxxxx

(2) The High Court may act either on the report of the lower Court, or on the application of a party interested, or on its own initiative:

Provided that no application shall lie to the High Court for transferring a case from one Criminal Court to another Criminal Court in the same sessions division, unless an application for such transfer has been made to the Sessions Judge and rejected by him.

Considering the above said provisions of Section 407(2) of Cr. P.C., it is clear that after dismissal of application u/s 408 of Cr.P.C., an application u/s 407 of Cr.P.C. shall lie. Therefore, revision against the order dated 28/09/2011 passed on the application u/s 408 of Cr.P.C. is impliedly barred. Therefore, this Criminal Revision filed by the petitioner u/s 397/401 of Cr.P.C. is dismissed as not maintainable. The petitioner is at liberty to move an application u/s 407 of Cr.P.C. before the High Court.