Ramakant Pandey & Another vs State Of M.P.

This petition under Section 407 r/w Section 482 Cr.P.C. has been filed by the petitioners seeking transfer of case bearing Session Trial No. 48/14 pending before the Court of IVth Additional Sessions Judge, Katni, to any other competent Court having jurisdiction in the matter within district Katni. The petitioners have also filed an application under Section 408 Cr.P.C before the Session Judge, Katni but vide order dated 03.02.2020, the Session Judge has dismissed the same, hence, this petition is preferred before this Court.

Learned counsel for the petitioners submits that the petitioners and respondent No. 3 are facing a trial in S.T. No. 48/2014 for the offence punishable under Explosives Substance Act, 1908. He submits that the Petitioners have filed an application under section 407 Cr.P.C. before the learned Sessions Court but the Court below erred in rejecting the same. Further, it is submitted by the learned counsel that in trial, 9 prosecution witnesses have been examined and the last witness namely Ajay Singh is still required to be examined as the examination has not been concluded on 18/02/2019. The trial has been going on since 2014 and petitioners never sought any unnecessary adjournment. Further, The witness namely Ajay Singh is not appearing before the Court whereas he has been called for approximately 15 times by the Court. He further submits that on 23.09.2019, the petitioners have filed an application for closing the right of prosecution to examine their witnesses but same was rejected by the trial Court. When the witness Ajay Singh again did not appear before the Court, the petitioners again moved an application for the same purpose on 06.12.2019 which is still pending for adjudication. The procedure adopted by the learned trial Court has compelled the petitioners to move an application under Section 408 Cr.P.C for transferring the case but same was dismissed by the Sessions Court. He further submits that the order passed by learned Sessions Court is in complete violation of mandate passed by the Higher Court in this regard, hence, the impugned order is liable to be quashed. The learned Sessions Court failed to appreciate the fact that the petitioners cannot expect expeditious and fair trial by the 4th Additional Session Judge, Katni. He also submits that in the interest of fair and expeditious justice, the transfer of trial is necessary. With the aforesaid, he prays to allow this petition. In support of his contention, he has relied on the judgment of the Hon'ble Supereme Court, same are mentioned herein under :-

(1) Capt. Amarinder Singh Vs. Prakash Singh Badal & others reported in (2009) 6 SCC 260.

(2) Abdul Nazar Madani Vs. State of Tamilnadu & anr. Reported in (2000) 6 SCC 204.

On the other hand, learned panel lawyer for respondent No. 1 & 2/State opposes the petition submitting that there was no need to transfer the case, even then the petitioners have filed transfer petition just to mislead the Court. He further submits that the evidence of witness Ajay Singh is an important piece of evidence, hence, it is necessary to examine him. He submits that the Court has issued bailable warrant against the witness but same has not been served upon him. The Court is going in a right way and has ample power to compel the witness for giving evidence. There is no reason to disbelieve on the Court. Hence, this petition deserves to be dismissed.

Heard both the parties and perused the case.

On perusal of case, it appears that the petitioners and respondent No. 3 are facing a trial for the offence under the Explosives Substance Act,1908. It is an admitted fact that the trial is pending since more than 5 years and 8 witnesses have been examined. Examination of witness Ajay Singh is incomplete. The learned counsel for the petitioners argued that the Court is not closing the right of the prosecution whereas witness Ajay Singh is not appearing in the Court since long time. On perusal of impugned order and other documents annexed in the case, it is apparent that Ajay Singh is an Investigating Officer and his evidence is important for just decision of the case on the point like seizure and other. Earlier, he has been examined by the prosecution on 18.02.2019 but it could not be completed due to non-production of seizure property. Since after, the witness is not appearing in the Court. The counsel raised the argument that the petitioners filed an application for closing the right of prosecution for producing further evidence but the Court has rejected the same. On perusal of order sheet dated 23.09.2019, it is found that the examination of witness Ajay Singh was suspended due to non-production of seizure property and examination is remained only on the point of seizure. The trial Court has mentioned that according to prosecution, the seized property has been found and prosecution is committed to proceed with the trial expeditiously. Further, copy of order sheet, filed by the petitioner's counsel, it is found that the bailable warrant are being issued by the trial Court against the witness Ajay Singh continuously but same are returned as un-served. Undisputedly, the Court has power to compel the witness to appear before the Court if his evidence is necessary for the case. So far as, principle regarding transferring the case is concerned, in the case of Abdul Nazar Madani (Supra), the Hon'ble Apex Court has held as under :-

"7. The purpose of the criminal trial is to dispense fair and impartial justice uninfluenced by extraneous considerations. When it is shown that public confidence in the fairness of a trial would be seriously undermined, any party can seek the transfer of a case within the State under Section 407 and anywhere in the country under Section 406 CrPC. The apprehension of not getting a fair and impartial inquiry or trial is required to be reasonable and not imaginary, based upon conjectures and surmises. If it appears that the dispensation of criminal justice is not possible impartially and objectively and without any bias, before any court or even at any place, the appropriate court may transfer the case to another court where it feels that holding of fair and proper trial is conducive.

No universal or hard and fast rules can be prescribed for deciding a transfer petition which has always to be decided on the basis of the facts of each case. Convenience of the parties including the witnesses to be produced at the trial is also a relevant consideration for deciding the transfer petition. The convenience of the parties does not necessarily mean the convenience of the petitioners alone who approached the court on misconceived notions of apprehension. Convenience for the purposes of transfer means the convenience of the prosecution, other accused, the witnesses and the larger interest of the society."

Hence, in view of the aforesaid principal, I do not find any ground of apprehension of not getting a fair and impartial inquiry or trial. The learned Sessions Judge has rightly used his discretion by giving the direction to the trial Court for deciding the pending application of the petitioners for closing the right of prosecution as well as trial as expeditiously as possible. I find no error in the impugned order, hence, this petition is hereby dismissed. However, in the interest of justice, I would prefer to direct the trial Court to conclude the trial within a period of 6 months in accordance with the law. If the witness-Ajay Singh does not appear before the Court for giving his evidence then the trial Court may secure his presence by taking coercive action against the said witness and by writing to his higher authority in this regard.