Ghulam Hassan vs Jaffar Dar

This order will dispose of the criminal transfer application made by the petitioner stating therein that the case titled State versus Jaffar Dar and

others under section 302 read with 34 RPC is pending disposal in the court of Sessions Judge, Baramulla. The case according to this petition

pertains to the abduction of one Shabir Ahmad; who was an autodriver and who on, 3rd January, 1996, was abducted by the accused

respondents and later on murdered. It has further been averred in the petition that thirty one witnesses have been cited on behalf of the prosecution

out of which three witnesses have been examined by the trial court and twenty eight witnesses are yet to be examined. Petitioner states that the

accused belong to Baramulla District and some of the witnesses, including the petitioner, belong to Srinagar. The petitioner is an eye witness. He is

being threatened and harassed by the accused persons. Petitioner feels threat to his life in case he attends the Sessions Court Baramulla to tender

evidence against the accused persons. According to him, not only for these reasons but basically the deceased was abducted from Srinagar so the

Srinagar Court has also got the jurisdiction to hear the case.

Notice was issued to the other side. Mr. M.Y. Bhat, Advocate has appeared. Heard LC for both parties.

Mr. Qayoom, LC for the petitioner, has argued that for the just decision of the case it will be fair if the case is transferred to any court of

competent jurisdiction at Srinagar. He has invited my attention to Section 526 clause (!) subclause (a) which says that whenever it is made to

appear to the High Court that a fair and impartial inquiry or trial cannot be had in any Criminal Court subordinate thereto, the High Court can

transfer the case or try it itself. His contention is that it is not necessary as to who is the petitioner, what the essential requirement is that 'it should

appear to the High Court', whatever be the source, and when the High Court comes to know that fair and impartial enquiry or trial cannot be had

in any criminal court subordinate to it, the High Court is empowered to transfer the case as aforesaid. Secondly, he has argued that as the offence

has started in Srinagar when the deceased was abducted so the Srinagar Court also have got the jurisdiction.

These pleas have been controverted by counsel for the other side, Mr. M.Y Bhat on sound reasons. He has contended that in this case

application for transfer has been made by the witness which he cannot. Secondly, according to him, on the factual side six witnesses belong to

Srinagar whose statements have been recorded already. Now it is only one witness who is the petitioner who belongs to Srinagar whose statement

is yet to be recorded. Rest of the witnesses and the accused belong to Baramulla District, so not only the Bararnulla court has got the jurisdiction

to hear the case, but it is convenient for the parties as well.

I am inclined to agree with LC for the respondents that this application merits dismissal on various grounds. Subsection 3 of Section 526 Cr. PC

says as under,

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.

So it is clear that Section 526 Cr. P.C. gives three origins for moving a transfer application in a criminal case. Firstly either the report must be from

the lower court requesting for such transfer; secondly, the application may be made by an interested party; and thirdly the High Court can on its

own initiative do it. So far as the first plea is concerned, there is not report from the lower court, nor the lower court has made any request for it.

So far as the second point is concerned, witness in a case can never be treated as an interested party. Interested party in a criminal case are either

the complainant of the accused persons. Witness is an impartial being who has to bring reality into the notice of the Court in a fair manner and

without any prejudice to any party. So a witness cannot come up with a transfer application that the criminal case in which he is a witness be

transferred from this court to that court. He has no business to do it. However, the ground taken by him that he feels harassment and threatened by

the accused persons, there are remedies available to him for his safeguard. He can apply to the trial court for security arrangements and the trial

court can easily provide him the security and record his statement without any mischief being done.

In case the apprehension of the witness seems to the trial court to be genuine, it is the bounden duty of the trial court to take steps for the safety

of the witness and that he deposes truth without any mischief being done to him. But the witness cannot be treated as an interested person who can

move for the transfer of the case. Thirdly the High Court also has not suomoto taken initiative in this case for the transfer of the case, nor it has

come to the notice of the High Court that the case cannot be tried fairly in the lower court. Convenience of the parties also does not allow the court

to take initiative and to transfer the case to some other court, for, the accused belong to Baramulla and the witnesses mostly also belong to that

place and the case has been investigated by Baramulla Police. So on all counts I feel that there is no merit in this application.

Lastly, LC for the petitioner has contended that the deceased was abducted from Srinagar and has been killed in Baramulla District so the

courts of the place wherefrom he was abducted too have the jurisdiction to hear the case. This argument also is not tenable in law. Here in this

case accused is not involved in abduction case he has directly been involved in murder case for offences under section 302 RPC read with Section

34 RPC. He is not connected with any other offence. So there is no question of the Srinagar Courts having the jurisdiction in the case.

For these reasons, therefore, the application is dismissed.