Andhra Pradesh High Court - Amravati
Smt.Gurrala Lakshmi Devi vs The State Of Andhra Pradesh on 15 February, 2024
IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI
(Special Original Jurisdiction)
[ 3366 ]
THURSDAY ,THE FIFTEENTH DAY OF FEBRUARY
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SRI JUSTICE B SYAMSUNDER
TRANSFER CRIMINAL PETITION NO: 82 OF 2023
Between:
SMT.GURRALA LAKSHMI DEVI AND OTHERS ...PETITIONER(S)
AND
THE STATE OF ANDHRA PRADESH AND OTHERS ...RESPONDENT(S)
Counsel for the Petitioner(s):SRI. KALLA TULASI DURGAMBA
Counsel for the Respondents: PUBLIC PROSECUTOR (AP)
The Court made the following:
I have heard learned counsel for the petitioner, Ms. Kalla
Tulasi Durgamba as well as learned counsel, Mr.K.Srinivas
representing on behalf of Mr. Satyanarayana Nimmala, learned
counsel for respondents No.2 to 4.
2. This petition is filed by the petitioner under Section 407 of
the Criminal Procedure Code (in short "Cr.P.C"), seeking transfer
of C.C.No.281 of 2022 on the file of Judicial Magistrate of First
Class, Railway, Koduru, YSR Kadapa District to any other District,
on the ground that R2 to R4 who are accused in the said case
are threatening her, due to that she could not appear before the
Court to depose in C.C.No.281 of 2022. The petitioner submits
that her husband filed O.S.No.83 of 2022 on the file of Junior
Civil Judge Court, Railway, Koduru, YSR Kadapa District, basing
on mortgage deed against R2 to R4 and got interim orders. When
interim orders are in force, R2 to R4 along with others,
encroached into the property and abused her and her family
members with dire consequences, due to that she lodged a report
before SHO, Obulavaripally Police Station on 17.06.2022 for the
offences punishable under Sections 323, 324, 427, 506, 509 r/w
34 IPC. After due investigation, SHO filed charge sheet vide
C.C.No.281 of 2022 on the file of Judicial Magistrate of First
Class, Koduru, YSR Kadapa District. The main contention of the
petitioner is that she received summons in C.C.No.281 of 2022
and when she appeared before the Court to give evidence, R2 to
R4/accused threatened her with dire consequences to withdraw
the case and asked her not to depose evidence before the Court
and threatened to kill her and her family members, due to that
again she lodged a written report before SHO, Obulavaripally
Police Station on 28.07.2023, who has not registered any case. It
is also the contention of the petitioner that in view of the serious
threat given by R2 to R4/accused she is seeking transfer of
C.C.No.281 of 2022 from Judicial Magistrate of First Class Court,
Koduru to any other District. She prays to allow the petition.
3. Learned counsel for the petitioner would submit that
petitioner attended the Court in C.C.No.281 of 2022 to depose as
she received summons from the Court, but R2 to R4 who are
accused in the case threatened her not to depose and petitioner
is having threat to her life in the hands of R2 to R4, due to that
she is not in a position to depose before the Court. She prays to
allow the petition.
4. Learned counsel representing R2 to R4 would submit that
there is no truth in the allegations made by the petitioner and
husband of the petitioner also filed O.S No. 83 of 2022 pending
on the file of Junior Civil Judge Court, Railway, Koduru, due to
that there are no grounds to consider the request of the
petitioner. He prays to dismiss the petition.
5. Before going to the merits of the case, it would be
beneficial to quote Section 407 of Cr.P.C. which reads as under:-
"407. Power of High Court to transfer cases and appeals:
(1) Whenever it is made to appear to the High Court-
(a) that a fair and impartial inquiry or trial cannot be had in
any Criminal Court subordinate thereto, or
(b) that some question of law of unusual difficulty is likely to
arise, or
(c) that an order under this section is required by any
provision of this Code, or will tend to the general convenience
of the parties or witnesses, or is expedient for the ends of
justice,
it may order-
(i) that any offence be inquired into or tried by any Court not
qualified under sections 177 to 185 (both inclusive), but in
other respects competent to inquire into or try such offence;
(ii) that any particular case or appeal, or class of cases or
appeals, be transferred from a Criminal Court subordinate to
its authority to any other such Criminal Court of equal or
superior jurisdiction;
(iii) that any particular case be committed for trial to a Court
of Session; or
(iv) that any particular case or appeal be transferred to and
tried before itself.
(2) 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: Provided that no application shall lie to the
High Court for transferring a case from one Criminal Court to
another Criminal Court in the same sessions division, unless
an application for such transfer has been made to the
Sessions Judge and rejected by him.
(3) Every application for an order under sub- section (1) shall
be made by motion, which shall, except when the applicant is
the Advocate- General of the State, be supported by affidavit
or affirmation.
(4) When such application is made by an accused person, the
High Court may direct him to execute a bond, with or without
sureties, for the payment of any compensation which the
High Court may award under sub- section (7).
(5) Every accused person making such application shall give
to the Public Prosecutor notice in writing of the application,
together with copy of the grounds on which it is made; and
no order shall be made on of the merits of the application
unless at least twenty- four hours have elapsed between the
giving of such notice and the hearing of the application.
(6) Where the application is for the transfer of a case or
appeal from any subordinate Court, the High Court may, if it
is satisfied that it is necessary so to do in the interests of
justice, order that, pending the disposal of the application,
the proceedings in the subordinate Court shall be stayed, on
such terms as the High Court may think fit to impose:
Provided that such stay shall not affect the subordinate
Court' s power of remand under section 309.
(7) Where an application for an order under sub- section (1)
is dismissed, the High Court may, if it is of opinion that the
application was frivolous or vexatious, order the applicant to
pay by way of compensation to any person who has opposed
the application such sum not exceeding one thousand rupees
as it may consider proper in the circumstances of the case.
(8) When the High Court orders under sub- section (1) that a
case be transferred from any Court for trial before itself, it
shall observe in such trial the same procedure which that
Court would have observed if the case had not been so
transferred.
(9) Nothing in this section shall be deemed to affect any order
of Government under section 197."
6. The Hon'ble Apex Court in Afjal Ali Sha @ Abjal
Shaukat Sha Vs. State of West Bengal & others1, judgment
dated 17.03.2023 while considering the transfer of criminal case
has held that transfer of the cases has to be accepted in
exceptional cases, considering the fact that transfers may cast
unnecessary aspirations on the State Judiciary and the
Prosecution Agency. Wherein it is also discussed the ratio laid
down by Hon'ble Apex Court in Nahar Singh Yadav Vs. Union
of India2, 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
2023 Live Law(SC) 268
(2011) 1 SCC 307
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."
7. In the present case, petitioner being
informant/victim/defacto-complainant lodged a report before
SHO, Obulavaripally on 17.06.2022 against R2 to R4 for alleged
incident, which said to be took place on 17.06.2022 at 02.30 pm,
wherein SHO, Obulavaripally Police Station conducted
investigation and filed charge sheet against R2 to R4 for the
offences punishable under Sections 323, 324, 427, 506, 509 r/w
34 IPC vide C.C.No.281 of 2022 on the file of Judicial Magistrate
of First Class, Railway, Koduru, YSR Kadapa District. A perusal of
charge sheet filed by the petitioner which shows that all the
witnesses are residents of YSR Kadapa Distrcit, who are residing
within the jurisdiction of Judicial Magistrate of First Class, Koduru.
A perusal of affidavit filed by the petitioner shows that nowhere it
is stated that when she attended the Court, when R2 to R4 have
threatened her not to give evidence before the Court in
C.C.No.281 of 2022. The petitioner also filed copy of report said
to be lodged before SHO, Obulavaripally Police Station on
18.05.2023 wherein it is stated that herself and her husband
intended to attend the Court but R2 to R4 have threatened them.
Even in the complaint, it is not stated when, where and who
threatened the petitioner and her husband not to give evidence.
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. As all the
witnesses in C.C No.281 of 2022 are residing within the
jurisdiction of Judicial Magistrate of First Class, Koduru, it is not
desirable to consider the request of the petitioner to transfer the
case. However, SHO, Obulavaripally Police Station can be directed
to provide necessary protection to the petitioner and her husband
as per the direction issued by Hon'ble Apex Court in Mahender
Chawla and others Vs. Union of India and others dated
05.12.2013 Writ Petition (Crl.) NO.156 of 2016 wherein the
Hon'ble Apex Court gave direction with regard to victim
protection. Learned trial Judge shall also follow ratio laid down by
Hon'ble Apex Court in Mukesh Singh Vs. The State of Uttar
Pradesh3 wherein it is held that "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",
while conducting trial in C.C.No.281 of 2022.
8. In the result, the Transfer Criminal Petition is dismissed
with the above directions. No order as to costs.
Consequently, miscellaneous petitions, if any, shall stand
closed. The interim stay granted if any, shall stand vacated.
__________________________
JUSTICE BANDARU SYAMSUNDER
Date :15.02.2024.
RSD
2022 LiveLaw (SC) 826
THE HON'BLE SRI JUSTICE BANDARU SYAMSUNDER
TRANSFER CRIMINAL PETITION No.82 of 2023
Date : 15.02.2024
RSD
