Andhra Pradesh High Court - Amravati
Samudrala Gurunadham vs The State Of Andhra Pradesh on 10 January, 2024
THE HON'BLE SRI JUSTICE BANDARU SYAMSUNDER
TRANSFER CRIMINAL PETITION No.92 of 2023
ORDER:
I have heard learned counsel for the petitioners, Mr.K.L.N
Swamy as well as learned counsel for respondent No.2, Mr.T
Janardhan Rao.
2. This petition is filed by the petitioners under Section 407 of
the Criminal Procedure Code (in short "Cr.P.C"), seeking transfer
of C.C.No.737 of 2021 on the file of Special Judicial Magistrate of
First Class Mobile Court, Nellore, to any other Court situated at
outside Nellore District on the ground that R2 lodged a false
report against him which is subject matter in CC No.6651 of 2021
for the offences punishable under Sections 417, 420, 506 r/w 34
IPC against himself and his wife, then petitioners approached this
Court by filing quash petition wherein stay was granted. He
submits that R2, filed CC No.737 of 2021 on the file of Special
Judicial Magistrate of First Class Mobile Court, Nellore, for the
offences punishable under Section 138 of Negotiable Instrument
Act, using blank signed cheque which was taken as security, who
also filed OS No.24 of 2022 and OS No.26 of 22 on the file of I
Additional Senior Civil Judge Court, Nellore against himself and
his wife, where in those cases, they are attending the Courts at
Nellore regularly. The main contention of the petitioners is that
due to the threat of creditors, he filed IP No.60 of 2020 on the
file of Senior Civil Judge Court, Guntur against 41 persons
including R2 which is pending. The petitioners submit that they
filed Crl.P.No 3526 of 2022 and got stay order in CC No.6651 of
2021 on the file of II Additional Judicial First class Magistrate,
Nellore and filed IP No.60 of 2020 on the file of Senior Civil Judge
Court, Guntur, but R2 harassing himself and his wife whenever
they attended the Court at Nellore and threatened them to
attack, whenever they attend Court at Nellore due to that they
also lodged a report before Deputy Superintendent of Police,
Superintendent of Police and Deputy Inspector General of Police,
Guntur range on 22.07.2023 but no action has been taken by the
police providing security to him. It is also the contention of the
petitioners that they are not in a position to attend the Court in
CC No.737 of 2021 unless it is transferred from Nellore to any
other District. They pray to allow the petition.
3. R2 filed Counter-affidavit denying the averments in the
affidavit of the 1st petitioner. It is the contention of R2 that he
never threatened petitioners whenever they attended the Court.
He submits that he filed CC No.737 of 2021 before the Special
Judicial Magistrate of First Class Mobile Court against the
petitioners as they failed to repay the amount due and they
issued cheque which was bounced and filed OS No.24 of 2022
and OS No.26 of 2022 on the file of I Additional Senior Civil
Judge Court, Nellore which suit also decreed and he filed
Execution Petition for recovery of the amount. He submits that
the petitioners have not attended Court in Cheque bounce case,
due to that Non-Bailable Warrant also issued against them. It is
the contention of R2 that IP No.60 of 2020 was dismissed six (6)
months back which fact is suppressed by the petitioners. R2 also
stated that other persons also filed cheque bounce cases before
the Courts at Nellore vide CC Nos. 39 of 2021, 40 of 2021, 49 of
2021, 153 of 2021 and 155 of 2021, wherein the petitioners are
attending but created the ground that to seek transfer of cheque
bounce case filed. He prays to dismiss the petition.
4. Now, the point that emerges for consideration of this Court
is: -
"Whether there are any grounds to consider the
request of the petitioners to transfer C.C.No.737 of
2021 on the file of Special Mobile Judicial
Magistrate of First Class Court, Nellore to any other
Court situated at outside Nellore District ?"
5. POINT:-
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. 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 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
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 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
2023 Live Law(SC) 268
(2011) 1 SCC 307
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, petitioners contending that whenever
they attend the Court in CC No.737 of 2021, R2 along with his
men threatening them, due to that they also lodged a report
before the higher police officials. The petitioners filed a copy of
report along with the petition. A perusal of copy of report which
shows that he has not stated nowhere in the report that when he
attended the Court, when R2 along with his men tried to attack
him. It is not known when and where R2 tried to attack the
petitioners, why the petitioners not filed a report before the SHO
for alleged attack. As rightly contended by learned counsel for
R2, when petitioners are attending the Court at Nellore in cheque
bounce cases filed by others, it is not known how it is difficult for
them to attend the other Courts at Nellore in C.C.No.737 of 2021.
R2 also filed a copy of complaint filed by others against the
petitioners for 5 cheque bounce cases, wherein the petitioners
are admittedly attending and not sought for transfer of those
cases. Learned counsel for the petitioners would submit that
there is no threat from the complainants of those cases, due to
that no petition is filed. When petitioners are attending the Courts
at Nellore, it would also convenient for them to attend the Courts
in CC No.737 of 2021 before the Special Judicial Magistrate of
First Class Mobile Court, Nellore and as no specific incident of
alleged attack and threat stated by the petitioners either in the
affidavit of the petitioners or in the report sent to the higher
police officials, this Court is of an opinion that, there are no
grounds to consider the request of the petitioners to transfer
C.C.No.737 of 2021 on the file of Special Mobile Judicial
Magistrate of First Class Court, Nellore to any other Court
situated at outside Nellore District
8. In the result, the Transfer Criminal Petition is dismissed. 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 :10.01.2024.
RSD
THE HON'BLE SRI JUSTICE BANDARU SYAMSUNDER
TRANSFER CRIMINAL PETITION No.92 of 2023
Date : 10.01.2024
RSD
