Bombay High Court
Ajay Vasant Solunke And Others vs The State Of Maharashtra And ... on 4 August, 2021
Bench: Mangesh S. Patil
908.Appln.1662.21.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO.1662 OF 2021
AJAY VASANT SOLUNKE AND OTHERS
VERSUS
THE STATE OF MAHARASHTRA AND ANOTHER
...
Advocate for Applicants : Ms. Madhaveshwari Mhase
APP for Respondents: Mr. R.D. Sanap
...
CORAM : MANGESH S. PATIL, J.
DATE : 04.08.2021
PER COURT :
I have heard the learned advocate for the applicant.
2. The husband of the respondent No.2 and his relatives are
invoking the powers of this Court under Section 407 of the Code of Criminal
Procedure for transferring a prosecution launched by her under Section
498A etc. of the Indian Penal Code being Regular Criminal Case
No.359/2021 pending on the file of learned Magistrate at Osmanabad to the
Court of Magistrate at Nilanga.
3. The learned advocate Ms. Mhase for the applicants would
submit that no part of cause of action has accrued at Osmanabad so that the
Magistrate at Osmanabad would have jurisdiction to conduct the trial. The
place of jurisdiction as is to be determined under Section 177 of the Code of
Criminal Procedure would be the court of Magistrate at Nilanga. In similar
set of facts and circumstances in the matter of Shantabai Dhondiram Rathod
and Ors. V/s. Savita W/o Anand Rathod and Ors.; 2018 DGLS (Bom.) 587
this Court had transferred a proceeding to the jurisdictional Magistrate by
referring to the self same provision contained in Section 177 of the Code of
Criminal Procedure while exercising power under Section 407 of that Code.
The learned advocate, therefore, submits that it is a fit case to transfer the
908.Appln.1662.21.odt
proceeding from Osmanabad to Nilanga as is held in this Judgment.
4. I have carefully considered the submission of the learned
advocate as also perused the decision in the case of Shantabai Dhondiram
Rathod (supra).
5. At the outset, one needs to remind ourselves that the applicants
are invoking the powers of this Court to transfer a proceeding from one
Magistrate to another by invoking the powers under Section 407 of the Code
of Criminal Procedure. It lays down following grounds for transfer :
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
908.Appln.1662.21.odt
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. As can be appreciated, want of jurisdiction of the Magistrate
currently trying the case is not a ground contemplated under Section 407(1)
for transferring a proceeding. This is what precisely is the matter in issue in
hand. The issue has not been dealt with and decided in the case of
Shantabai Dhondiram Rathod (supra) and with respect that decision cannot
be followed as a precedent.
7. It is quite apparent that the applicants are trying to question the
908.Appln.1662.21.odt
jurisdiction of the Magistrate at Osmanabad to conduct the trial. That may
provide them with a legitimate ground to be agitated before the concerned
Magistrate. However, the fact remains that want of jurisdiction of the
Magistrate cannot be a ground to transfer a proceeding by resorting to the
provision of Section 407 of the Code of Criminal Procedure.
8. In a way, the applicants are indirectly seeking an observation of
and conclusion by this Court that the Magistrate at Osmanabad does not
have jurisdiction under Section 177 of the Code of Criminal Procedure. The
purport and scope of an enquiry under Section 407 of the Code of Criminal
Procedure is not to decide such jurisdictional issues. The applicants may
have their own rights and remedies to question the jurisdiction of the
Magistrate at Osmanabad. However, this Court cannot go into that arena
indirectly in this proceeding under Section 407 of the Code of Criminal
Procedure.
9. The Application is devoid of any ground under Section 407 of
the Code of Criminal Procedure.
10. The Criminal Application is dismissed in limine.
(MANGESH S. PATIL, J.)
habeeb
