Andhra Pradesh High Court - Amravati

Syed Zeeshan Basha vs The State Of Andhra Pradesh on 12 February, 2024

 APHC010501572023
                         IN THE HIGH COURT OF ANDHRA PRADESH ::
                                       AMARAVATI
                                 (Special Original Jurisdiction)                [ 3366
                                                                                     ]

                         MONDAY ,THE TWELFTH DAY OF FEBRUARY
                           TWO THOUSAND AND TWENTY FOUR
                                    PRESENT

                THE HONOURABLE SRI JUSTICE B SYAMSUNDER

                    TRANSFER CRIMINAL PETITION NO: 97 OF 2023

Between:
    1. SYED ZEESHAN BASHA, S/o Muneer Basha, Aged about 34 years,
       Muslim,
    2. Sk. Mubean @ Naseem, W/o Muneer Basha, Aged about 52 years, Muslim,
    3. Syed Afshan., S/o Muneer Basha, aged about 29 years, Muslim, (All above
       petitioners are residing at D.No.16-11-567, Flat No. 501, 8- Block, Sri Sakthi
       Homes, Gaddi Annaram Colony, Dilsukh Nagar, Hyderabad city, Telangana
       State)
    4. Sk. Shafi Ahmmad,, S/o Abdul Shukur, Aged about. 57 years, Muslim, R/o
       Mohammadapuram Village, Podalakur Mandal, SPSR Nellore District.
                                                                 ...PETITIONER(S)
                                        AND
    1. THE STATE OF ANDHRA PRADESH, Rep by its Public Prosecutor, State
       of Andhra Pradesh, High Court of Andhra Pradesh at Amaravati
    2. Shaik Arfana, W/o Syed Zeeshan Basha, Muslim, Aged about 30 years,
       R/o D.No. 25-1-657, 3' Cross Road, ZP colony, Podalakur Road, Nellore
       City, SPSR Nellore District.
                                                                ...RESPONDENTS
       pleased to transfer the C.C.N0.719 OF 2020 on the file of the Court of
Hon'ble Judicial Magistrate First Class, Special Mobile Court, Nellore to any
other competent court in any other district and the same and pass
I.A. NO: 1 OF 2023
       Petition under Section 151 CPC praying that in the circumstances stated
in the affidavit filed in support of the petition, the High Court may be pleased
pleased to grant stay of all further proceedings, including appearance of the
Petitioners/ Accused No.! to 4 in C.C.NO.719 OF 2020 on the file of the Court
of Hon'ble Judicial Magistrate of First Class, Special Mobile Court, Nellore
pending disposal of this Transfer Criminal Petition and pass
       This Petition coming on for hearing,upon perusing the Memorandum of
Grounds of Criminal Petition and upon hearing the arguments of Sri SOURI
BABU DUPPATI ,Advocate for the Petitioner and the Public Prosecutor
(TG/AP) on behalf of the Respondent No. and of Sri_Advocate for the
Respondent No.
Counsel for the Petitioner(s):SRI. SOURI BABU DUPPATI
Counsel for the Respondent No.1: PUBLIC PROSECUTOR (AP)
Counsel for the Respondent No.2: Mr.SURENDER REDDY
The Court made the following:
         THE HONOURABLE SRI JUSTICE B SYAMSUNDER

            TRANSFER CRIMINAL PETITION No.97 of 2023

ORDER:

I have heard the learned counsel for the petitioners, Mr.D.Souri

Babu as well as the learned counsel for R2, Mr.Surendar Reddy.

2. This petition is filed by the petitioners/accused under Section

407 of Code of Criminal Procedure (in short "CrPC") seeking transfer of

C.C.No.719 of 2020 on the file of Judicial Magistrate of First-Class,

Special Mobile Court, Nellore to any other competent Court in any other

District on the ground that R2/victim/defacto complainant has been

practicing as an advocate in Nellore Courts. It is alleged that since R2

has been practicing as an advocate in the Nellore Court, she is

influencing the Court and other side counsels. They pray to allow the

petition.

3. The learned counsel for the petitioners would submit that

previously R2 also filed MC.No.2 of 2020 on the file of Family Court-

Cum-VI Additional District and Sessions Judge, Nellore, seeking

maintenance from the 1st petitioner/husband which was allowed by the

said Court granting maintenance of Rs.15,000/- per month to R2 in

spite of her admission in her evidence that she is practicing as junior

advocate in the Courts situated at Nellore. He would further submit

that the petitioners are apprehending that they may not get proper justice if the case is continued in trial Court at Nellore. He prays to

allow the petition.

4. The learned counsel for R2 would submit that mere apprehension

of the petitioners is not a ground to consider the request for transfer

when no specific incident or contention is raised by the petitioners. He

would further submit that the averments made in the affidavit of the

1st petitioner that R2 has been practicing as an advocate in Nellore

Courts and she is influencing the Courts and other side counsels is

highly objectionable which is not warranted. He prays to dismiss the

petition.

5. Now, the point that emerges for determination of this Court is:

"Whether there are grounds to transfer C.C.No.719 of 2020

from the Judicial Magistrate of First-Class, Special Mobile

Court, Nellore to any other competent Court in any other

District?"

6. POINT: It is settled law that mere apprehension that justice may

not be done at a particular forum and mere inconvenience of petitioners

cannot be a ground for transfer of a case, there must be reasonable

apprehension not mere apprehension that Trial would be seriously

undermine and justice would not be done, if their request to transfer

the case is not considered. The Hon'ble Apex Court in Afjal Ali Sha @

Abjal Shaukat Sha Vs. State of West Bengal & others1, judgment

2023 LiveLaw (SC) 268 dated 17.03.2023 while considering the transfer of criminal case has

held that the transfer of the cases has to be accepted in exceptional

cases, considering the fact that transfers may cast unnecessary

aspersions on the State Judiciary and the Prosecution Agency. Wherein

it is also discussed ratio laid down by Hon'ble Apex Court in Nahar

Singh Yadav Vs. Union of India22, at para 29 which reads as under:

"29. Thus, although no rigid and inflexible rule or test could be laid down to decide whether or not power under Section 406 CrPC should be exercised, it is manifest from a bare reading of subsections (2) and (3) of the said section and on an analysis of the decisions of this Court that an order of transfer of trial is not to be passed as a matter of routine or merely because an interested party has expressed some apprehension about the proper conduct of a trial. This power has to be exercised cautiously and in exceptional situations, where it becomes necessary to do so to provide credibility to the trial. Some of the broad factors which could be kept in mind while considering an application for transfer of the trial are:

(i) when it appears that the State machinery or prosecution is acting hand in glove with the accused, and there is likelihood of miscarriage of justice due to the lackadaisical attitude of the prosecution;

(ii) when there is material to show that the accused may influence the prosecution witnesses or cause physical harm to the complainant;

(iii) comparative inconvenience and hardships likely to be caused to the accused, the complainant/the prosecution and the witnesses, besides the burden to be borne by the State exchequer in making payment of travelling and other expenses of the official and nonofficial witnesses;

(iv) a communally surcharged atmosphere, indicating some proof of inability of holding fair and impartial trial because of the accusations made and the nature of the crime committed by the accused; and

(v) existence of some material from which it can be inferred that some persons are so hostile that they are interfering or are likely to interfere either directly or indirectly with the course of justice."

(2011) 1 SCC 307

7. In the present case, the petitioners, being accused in C.C.No.719

of 2020, filed this transfer petition seeking transfer of the case from

trial Court at Nellore to any other competent Court in any other district

only on the ground that R2/defacto complainant is practicing as junior

advocate in Nellore Courts and they are apprehending that she may

influence the Courts and other side counsels. It is also the contention

of the petitioners that though R2 admitted in her evidence in MC.No.2

of 2020 that she is practicing as an advocate, the Family Court at

Nellore granted maintenance to her. It is pertinent to note that

C.C.No.719 of 2020 is pending on the file of Judicial Magistrate of First-

Class, Special Mobile Court, Nellore and MC.No.2 of 2020 filed by R2

was disposed of by the Judge of Family Court-Cum-VI Additional

District and Sessions Judge, Nellore, wherein monthly maintenance of

Rs.15,000/- has been granted to R2 directing the 1st petitioner to pay

the maintenance. Simply because MC.No.2 of 2020 filed by R2 seeking

for maintenance from the 1st petitioner was allowed, which was also

admittedly contested by the 1st petitioner by engaging counsel, that

itself is not a ground to consider the request of the petitioners to

transfer C.C.No.719 of 2020.

8. The apprehension in the mind of the petitioners must be based

on some material and on their mere imagination without any substance

which cannot be a ground to transfer criminal cases as transfer of case

casts unnecessary aspersions on the State Judiciary and the Prosecution Agency and admittedly, most of the witnesses (i.e., Lw.1 to

Lw.5 and Lw.8, Lw.9) in C.C.No.719 of 2020 are residents of Nellore

city.

9. There are no grounds to consider the request of the petitioners to

transfer C.C.No.719 of 2020 from Judicial Magistrate of First-Class,

Special Mobile Court, Nellore District to any other competent Court of

any other district. However, the learned trial Court Judge shall follow

the ratio laid down by the Hon'ble Apex Court in Mukesh Singh v. The

State of Uttar Pradesh and another3; while conducting trial of

C.C.No.719 of 2020. It is held by the Hon'ble Apex Court in the above

referred decision that:

"The present special leave petitions have been filed for quashing of the bail granted to respondent no. 2 in both the petitions who are facing trial for offences under Sections 302, 324, 504 and 506 IPC. Learned counsel for the petitioner informs this Court that there are three eye- witnesses as per the calendar of witnesses and charge sheet has been filed and statement of PW-1 by this time has been recorded which took almost three months to conclude. So far as statement of PW-2 is concerned, part of the examination-in-chief was recorded on 21.09.2022 and despite request been made the mandate of Section 309 Cr.P.C. is not being followed which has been considered by this Court in "Vinod Kumar versus State of Punjab4. The mandate of law itself postulate that examination-in-chief followed with cross-examination is to be recorded either on the same day or on the day following. In other words, there should not be any ground for adjournment in recording the examination-in-chief/cross-examination of the prosecution witness, as the case may be."

2022 LiveLaw (SC) 826

(2015) 3 SCC 220

10. In the result, this Transfer Criminal Petition is dismissed with a

direction to the trial Court to dispose of C.C.No.719 of 2020 as

expeditiously as possible within a period of six (06) months from the

date of receipt of orders of this Court in this petition by following the

ratio laid down in the above referred judgment. No order as to costs.

Consequently, miscellaneous petitions if any, shall stand

closed.

The Interim Stay, if any, granted, shall stand vacated.

____________________________________ JUSTICE BANDARU SYAMSUNDER

Date: 12.02.2024 KAS