Dinesh Chand Shrivastava vs State Of Madhya Pradesh And Others

(1) This petition under Section 409 of CrPC has been filed seeking transfer of Case No.931/2016 (RCT) pending in the Court of JMFC, Shivpuri.

(2) The applicant is the father of the complainant. It appears that earlier, the applicant had filed an application under Section 302 of CrPC seeking

permission to conduct the trial. The said application was rejected by the Trial Court by order dated 29/08/2017 and the application filed by the

applicant in the capacity of guardian of the complainant was dismissed, as not maintainable. Thereafter, another application was filed by the applicant

before the Trial Court under Section 302 r/w Section 2 of CrPC and it appears that without taking note of the order dated 29/08/2017 passed by the

Trial Court, the application filed by the applicant for assisting the Public Prosecutor as well as to put forward the case of the complainant, was

allowed.

(3) In the present case, it is not the question as to whether the subsequent application filed by applicant under Section 302 of CrPC was maintainable

or not; but it appears that the complainant herself is not appearing before the Trial Court and she is being represented through her father Dinesh

Chand Shrivastava (the applicant).

(4) Be that whatever it may.

(5) It appears that earlier, the complainant had filed a petition under Section 482 of CrPC challenging the order dated 28/09/2016 passed by Sessions

Judge, Shivpuri in MJC No.217/2016, by which the application filed by the applicant under Section 408 of CrPC was rejected. The petition filed under

Section 482 of CrPC by the complainant was dismissed by this Court by order dated 14/08/2019, with the following observations:-

''Learned Court below rejected the application of the petitioner for transfer of the case on the ground that the distance between Karera to Shivpuri is

only 45 kms and apprehension of petitioner regarding her security is misguided because the petitioner has to suffer the distance on highway and on

highway, apprehension of petitioner cannot be sustained. Further father of petitioner himself is an Advocate and therefore, plea of petitioner that no

counsel is ready to take her case at Shivpuri is misplaced. In the considered opinion of this Court, the findings arrived at by the trial Court, while

rejecting the application preferred by the petitioner under Section 408 of Cr.P.C. are just and proper and need no interference.

No illegality, perversity or irregularity is found in the order passed by the trial Court, petition being bereft of merits, is hereby dismissed. However, if

petitioner makes any complaint regarding security threat with cogent documents and evidence, then trial Court shall consider the same and pass

appropriate orders.''

(6) It is submitted by the counsel for the parties that since there was a stay of further proceedings of the Trial Court which was never extended,

therefore, the Trial Court by order dated 07/05/2019, in the light of the order passed by the Supreme Court in the case of Asian Resurfacing of Road

Agency P. Ltd. and another vs. Central Bureau of Investigation, passed in Criminal Appeal Nos. 1375-1376 of 2013, directed the parties to either

obtain the stay order or further proceedings shall be taken up and accordingly, from 04/06/2019, further proceedings were taken up in the trial.

(7) On 04/06/2019, an application under Section 91 of CrPC was filed by the counsel for the respondents and by order dated 14/10/2019, the

application was rejected and the case was fixed for prosecution evidence on 26/11/2019. On the said date, the case was adjourned as the summons

issued to the witnesses were not received back, either served or unserved and accordingly, the case was adjourned to 19/12/2019.

(8) It is submitted by the counsel for the applicant that the Trial Magistrate without any information to anybody, pre-poned the proceedings and took

the matter on 18/12/2019 and issued bailable warrants against the witnesses, whereas the witnesses were of the view that they are required to appear

before the Trial Court on 19/12/2019 and the case was fixed to 09/01/2020. On 09/01/2020, bailable warrants issued against the complainant and

Dinesh Chand Shrivastava were received back on the ground that they were not found at the given address and accordingly, fresh bailable warrants

have been issued.

(9) It is submitted by the counsel for the applicant that since the Trial Magistrate is unnecessarily issuing bailable warrants against the witnesses,

therefore, the applicant does not have any faith on the Trial Court and thus, the case should be transferred. It is further submitted that one of the

accused Smt. Sadhna Saxena, is an Advocate and earlier, sometime in the year 2016, she had made an application to the President of District Bar

Association, Shivpuri for a fair investigation, therefore, none of the advocates practicing in the District Court, Shivpuri is ready to accept the brief of

the applicant as a result of which the applicant is required to attend the Court proceedings at Shivpuri, whereas she is resident of Narwar. It is further

submitted that the applicant had filed an application under Section 408 of CrPC,which has been dismissed by the Sessions Judge, Shivpuri by order

dated 14/02/2020 passed in Case No. 47/2020 (MJC).

(10) Per contra, it is submitted by the counsel for the respondents that the applicant himself is an Advocate by profession. By hook or crook, he wants

to transfer the case from the Court of Shivpuri. It is further submitted that in fact, it is the applicant who is creating all sorts of obstructions in smooth

functioning of the trial.

(11) Heard the learned counsel for the parties.

(12) Although this petition has been filed on 25/02/2020 but the applicant has filed the order sheets up-to 09/01/2020. From the impugned order passed

by Sessions Court under Section 408 of CrPC, it is clear that on 13/01/2020, the complainant party itself had filed an application for cancellation of

arrest warrants issued against the prosecution witnesses Rahul Shrivastava, which was allowed subject to condition that he shall appear before the

Trial Court on the next date of hearing, however, on the next date of hearing, another application under Section 216 of CrPC was filed. Thus, the

Court below has come to a conclusion that the complainant party is well aware of the dates of the Trial Court as well as they are well aware of the

fact that the warrants are being issued but still they are avoiding their appearance before the Trial Court. The Sessions Court has specifically come to

a conclusion that there is nothing on record to suggest that the Trial Court is functioning under the pressure of the accused persons. The Counsel for

the applicant tried to re-agitate the grounds which were raised by the applicant in the earlier application which was filed against the order passed

under Section 408 of CrPC. The applicant cannot be permitted to agitate and re agitate the same grounds which have already been considered and

rejected by this Court while deciding MCRC No.6868/2017.

(13) It was next contended by the counsel for the applicant that the complainant is regularly appearing before the Magistrate but the accused persons

are seeking adjournment.

(14) Considered the submissions made by counsel for the applicant.

(15) The order sheets which have been placed on record do not indicate that either the applicant or the complainant has ever appeared before the

Trial Magistrate after the trial was restarted in the light of the judgment passed by Supreme Court in the case of Asian Resurfacing of Road Agency

P. Ltd. (supra). There is nothing on record to suggest that any resolution has been passed by the Bar Association for not appearing on behalf of the

complainant. No allegation has been made against any lawyer who had refused to accept the brief on behalf of the complainant. Under these

circumstances, this Court is of the considered opinion that no case is made out for setting aside the impugned order dated 14/02/2020 passed under

Section 408 of CrPC, or for transfer of Case.

(16) This petition fails and is hereby dismissed.