Leela Devi and Another vs State and Others

Sunil Hali, J.—Private respondents 2 and 3 are facing trial u/s 302/34 RPC read with Section 4/25 of the Arms Act, before the court of

learned 2nd Additional Sessions Judge, Jammu. Allegation against them is that on 6th of May'07, they attacked and killed the deceased son of the

petitioner near Invitation Hall, Roop Nagar, Jammu, when he had come to accompany a barat. FIR 84/2007 came to be registered u/s 302/34

RPC and 4/25 of the Arms Act with police station, Domana. In view of this, the trial is being conducted at Jammu.

Present application has been filed by the petitioners for transfer of the case from the court of 2nd Addl. Sessions Judge, Jammu, to the Court of

Sessions at Samba, on the ground that since all the witnesses belong to Samba, therefore, taking into consideration the convenience of the

witnesses as also the complainants, it will be appropriate if the trial is held at Samba.

On the other hand, counsel for the respondent-accused submits that the petitioners have no locus to file the present transfer application as the

case is being prosecuted by the State. It is stated that all the eye witnesses stand examined at Jammu. It is contended that there is no complaint that

the trial is not being conducted fairly. Regarding the convenience of the witnesses, it is stated that none of the witnesses' has approached the

respondent State that it is not convenient for them to come to Jammu. The statement of the complainant stands already recorded. It is thus

contended that there is no ground available with the applicant-petitioners for seeking transfer of the case from Jammu to Samba.

I have heard learned Counsel for the parties and perused the record.

Section 526 of the Code of Criminal Procedure, empowers this Court to transfer a case in case, fair and impartial enquiry of trial cannot be held

in a subordinate criminal court or if it is for the convenience of parties or witnesses. The import of said Section, which is relevant for the present

case, clearly envisages two possibilities when a case can be transferred. These are:

a/ That impartial trial is not possible; and

b/ That it is for the convenience of the parties or witnesses.

In the case in hand, there is no allegation that the trial is not being conducted fairly, as such, this issue need not to be addressed.

So far as the convenience of the parties or witnesses is concerned, it be seen that there is no application moved by any of the witnesses' that it is

inconvenient for him to have the trial conducted at Jammu. The present application has been filed by the mother and uncle of the deceased. The

mother admittedly is not the complainant and the statement of petitioner No. 2 has already been recorded.

Looking to the convenience of the parties, the respondent-accused have stated in their objections that they apprehend threat to their life if the

case is tried at Samba.

In view of the above, I find no reason to allow the present application. The same is accordingly dismissed.