Bhushan Lal vs State Of Jammu & Kashmir

Through the medium of instant petition, the petitioner inter alia seeks transfer of Criminal Case (Challan No.39 of 2017) under Section 279/304-II RPC, pending trial in the court of Sessions Judge Samba, to any other court of competent jurisdiction at Jammu.

Brief facts of the case are that the petitioner was driving a car rashly and negligently on 23.07.2017 with the result he lost control of the same leading to an accident with a motorcycle at Swankha and injury to the rider thereof ending up in his death later; FIR was registered, and after investigation challan No.39 of 2017 put up against the petitioner, which is now pending disposal in the Court of Sessions Judge Samba. Initially the case was registered under Section 279/337 of the Ranbir Penal Code, and later upon the death of the injured, made into Section 304-A RPC and subsequently upon completion of the investigation into Sections 279/304-II of the Code. It has been further stated that the petitioner is an Advocate by profession, with the seat of practice at Samba. It is very embarrassing for him that he would be appearing as accused in the Court where he has been and is conducting cases of his clients. If the case is tried in the Court at Samba, he would be faced with sagging spirits, psychological pressure and diffidence and that would adversely affect his defense in the case. Unfortunately, by reason of the injured being local, the atmosphere at Samba is charged and, thus, not congenial to the fairness of trial at that place. In fact, the petitioner is vulnerable at that place, and his safety and security is not assured there; he apprehends danger to his life, if the trial is held at Samba. It is further stated that the Bar at Samba is divided on the lines of the local sentiments adding to the discomfiture to the petitioner and aggravated pressure on his psyche adversely affecting him in his defence. On each day of hearing, a large number of locals gather in the premises and the professional rivals exploit the situation. The petitioner has a serious apprehension that his case would be seriously prejudiced and justice will suffer; justice may be done but will not appear to be done. In the circumstances, transfer of the said case as prayed for is well deserved, as it would advance the cause of justice. Out of 19 witnesses cited on behalf of the prosecution, 5 are police personnel, 5 from Jammu, one of them being Registrar Government Medical College, Jammu, and two from R.S. Pura, 3 from Sangwali Mandi Samba, 1 from Ward No.7 Samba, 2 from Gho-Manhasan and one each from Gho-Brahmna and Jerda Ramgarh. One of the witnesses is Patwari, who was at the relevant time posted as Patwari Patwar Halqa Gho-Brahmna. Of the aforesaid witnesses, four are alleged to be eye witnesses, out of whom 2 are from Jammu (Kothi Kour R.S.Pura and Ward No.10 R.S. Pura) one from Gho-Manhasan and the other from Ward No.7 Samba, and the rest are just formal witnesses. From the aforesaid complexion of the proposed evidence, it is apparent that even on the principle of convenience, the case deserves to be transferred to Jammu; a good number of witnesses, including a couple of eye witnesses, are from Jammu, and it is convenient for other witnesses as well to appear at Jammu for evidence. The transfer of the case would not involve any prejudice to the prosecution, or undue advantage to the petitioner.

Heard learned counsel for the petitioner and perused the file.

Section 526 Cr.P.C. reads as under:-

"526. High Court may transfer case or itself try it.- (1) whenever it is made to appear to the High Court-

(a) that a fair and impartial inquiry or trial cannot be had in any Criminal Court subordinate thereto ; or

(b) that some question of law of unusual difficulty is likely to arise; or

(c) that a view of the place in or near which any offence has been committed may be required for the satisfactory inquiry into or trial of the same; or

(d) that an order under this Section will tend to the general convenience of the parties or witness ; or

(e) that such an order is expedient for the ends of justice, or is required by any provision of this Code, it may order-

(i) that any offence be inquired into or tried by any Court not empowered under Sections 177 to 184 (both inclusive), but in other respects competent to inquire into or try such offence ;

(ii) that any particular case or appeal, or class of cases or appeals, be transferred from a Criminal Court subordinate

to its authority to any other such Criminal Court of equal or superior jurisdiction ;

(iii) that any particular case or appeal be transferred to and tried before itself; or

(iv) That an accused person be committed for trial to itself or to a court of session."

5 From bare perusal of this section, it is evident that High Court has power to transfer criminal case from one Sessions Division to another Sessions Divisions on various grounds prescribed in this section. However, generally when application is made by a party to criminal court, it can be transferred on the grounds that a fair and impartial inquiry or trial cannot be held in any subordinate criminal court; that is for the general convenience of the parties or witnesses. Further, a criminal case can be transferred when it appears that an order about such transfer can be expedient for ends of justice and for promotion of ends of justice. These are some of valid grounds for transfer, which are exhaustive one. There are other grounds also which the High Court can think proper in the facts & circumstances of a particular case.

The petitioner has taken foremost ground for transfer of case that out of 19 witnesses cited on behalf of the prosecution, 5 are police personnel, 5 from Jammu, one of them being Registrar Government Medical College, Jammu, and two from R.S.Pura, 3 from Sangwali Mandi Samba, 1 from Ward No. 7 Samba, 2 from Gho-Manhasan and one each from Gho-Brahmna and Jerda Ramgarh. One of the witnesses is Patwari, who was at the relevant time posted as Patwari Patwar Halqa Gho-Brahmna.

From bare perusal of photocopy of list of witnesses in challan, it would reveal that all the eye witnesses are from Samba and even some circumstantial witnesses are also residents of Samba. Law is clear that while considering the transfer of a case from one court to another, convenience of accused, complainant as well as witnesses has to be looked into by the Court.

Hence, this petition is dismissed. Stay, if any, is vacated.