Mona Yadav vs The State Of Madhya Pradesh
2021 Latest Caselaw 5975 MP

                                             M.Cr.C No.37323/2021      1



        The High Court Of Madhya Pradesh,
                          Bench At Indore
                          M.Cr.C No.37323/2021
Mona Yadav and Another                            ---- Applicants
                                    Versus
State of Madhya Pradesh and Ors                   ---- Respondent/State
Coram:
              Justice Sujoy Paul, Judge
              Justice Shailendra Shukla, Judge
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Presence:
       Shri Vinay Saraf, learned senior counsel with Shri Rahul
Maheshwari, learned counsel for the applicants.
       Shri Pushyamitra Bhargav, learned AAG for the respondent
no.1 and 2/State.
       Shri Vikram Dubey, learned counsel for the respondent
no.3/CBI.
                 Whether approved for reporting: Yes/No
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                                    ORDER

(Passed on 24/09/2021) Sujoy Paul, J. :

This application is filed under section 407, 397 and 482 of the Criminal Procedure Code (Cr.P.C) read with section 10 of the Madhya Pradesh Vishesh Nyayalaya Adhiniyam, 2011 (Adhiniyam) questioning the order dated 29.06.2021 passed in M.J.C (R) No.928/2021, whereby, the application of the petitioners seeking transfer of Special Case No.03/2016 from the Court of XIV Additional Sessions Judge and Sessions Trial No.1328/2012 from the Court of XIX Additional Sessions Judge to the Court of XVII Additional Session Judge, Indore was rejected by learned Sessions Judge, Indore.

2. Shorn of unnecessary details, the case of the petitioners as pleaded is that the petitioners are facing multiple investigations based on complaints preferred by banks. Several FIRs were registered against the petitioners. The petitioners are facing three similar sessions trials culminating out of common collateral property situated at Indore. House No.EH-66, Scheme No.544, situated at Indore is involved in Sessions Trial No.333/2015 pending before the Court of XVII Additional Sessions Judge, Indore and the same property is involved in two other sessions trials bearing Special Case No.03/2016 (EOW, Indore Vs. Mohan and Ors.) pending before the Court of XIV Additional Sessions Judge, Indore and Sessions Trial No.1328/2012 (Police Station Hira Nagar, Indore Vs. Mohan and Ors.) pending before the Court of XIX Additional Sessions Judge, Indore.

3. Learned Senior counsel for the petitioners raised singular contention. He submits that the allegations in all the FIR are exactly identical. Multiple agencies have filed separate charge sheets in furtherance of same collateral property. By doing so, these agencies are trying to hinder the case of the petitioners which is totally against the principle of fair trial.

4. The prosecution agencies have initiated separate trials for the same which is causing great prejudice and hardship to the petitioners. Separate trials are also causing failure of concept of fair trial because the petitioners have to defend the same case in multiple courts whereas, the prosecution has the benefit of improving their case every time.

5. In order to get rid of this, the petitioners filed application under section 408 and 407 of the Cr.P.C seeking transfer of similar sessions trial involving same property to the Court of XVII,

Additional Sessions Judge, Indore. The application filed in this regard dated 29.06.2021 is filed as Annexure P/5.

6. Since the learned Sessions Judge has rejected the same by order dated 19.06.2021, it is submitted that the fair trial is sine qua non in the criminal jurisprudence. In order to ensure fair trial, it is obligatory for the Court to ensure that the trials conducted in a manner are convenient to the parties. Separate trials in separate Courts is putting the petitioners to great inconvenience which hits the concept of fair trial.

7. Learned senior counsel for the petitioners although relied on certain judgments in the body of application, cited none during the course of hearing. He relied on section 10 of the Adhiniyam to bolster his submissions that the provision has a over riding effect and gives special power to the High Court to transfer the case from one Court to the another.

8. Lastly, it is submitted that the learned Sessions Judge has wrongly relied upon section 219, 220 and 223 of the Cr.P.C. The petitioners are not seeking clubbing of the matters, indeed, seeking transfer of matters to one Special Court.

9. Per contra, Shri P.Bhargav, learned AAG for the respondent/state and Shri Vikram Dubey, learned counsel for the CBI supported the impugned order. It is common ground that the complainants and witnesses in every case are different. The different banks are involved in the different cases. Learned counsel for the CBI informed that in the cases sought to be transferred, different banks are involved viz UCO bank, Dena Bank and Canara bank, whereas in the matters already pending before the court of XIX Additional Sessions Judge, Indore different banks are involved. No prejudice or inconvenience will be caused to the

petitioners if they contest the matters in the same court. The stages of cases in all the Courts are different and therefore, clubbing may hamper the speedy trial which will neither in the interest of the prosecution nor of the petitioners.

10. No other point is pressed by the learned counsel for the parties.

11. We have heard learned counsel for the parties at length and perused the record.

12. A plain reading of application of petitioners Annexure P/5 seeking transfer shows that the application was filed under section 407 and 408 of the Cr.P.C seeking transfer. No amount of argument was advanced before the learned Sessions Judge based on section 10 of the Adhiniyam. So far section 407 of the Cr.P.C is concerned, in (2001) 6 SCC 607 (Dhyan Investment and Trading Co.Ltd Vs. CBI), the Apex Court opined that the Special Court is not sub- ordinate to the High Court and that the High Court would have no power under section 407 of the Cr.P.C to transfer the case from one judge of Special Court to another. No reliance is placed on section 10 of the Adhiniyam before the learned Sessions Judge. Thus, learned judge had no occasion to examine the ambit and scope of the said provision nor it was within his province to do it because section 10 of the Adhiniyam empowers the High Court to pass the order of transfer of cases. Thus, in this regard, no fault can be found in the impugned order.

13. The line of argument of the learned counsel for the petitioner which is reflected from the impugned order shows that the matter was argued totally on a different line before the learned Sessions Judge. The transfer of trials were prayed for on the strength of

section 219, 220 and 223 of the Cr.P.C. However, before us for the first time section 10 of the Adhiniyam is relied upon.

"10. Transfer of cases. - Notwithstanding the order provisions of this Act, it would be open to the High Court to transfer cases from one Special Court to another. "

(emphasis supplied)

14. No doubt, in the said local act specific provision enabling the transfer was made. However, no parameters are laid down in the provision as to when the trial can be transferred by the High Court.

15. In our opinion, the discretion and power given to the High Court under section 10 of the Adhiniyam cannot be said to be an unfattered discretion/power. The discretion must be guided by valid and justifiable reasons.

16. Since section 10 is silent about the parameters of transfer, we can seek guidance from section 407 of the Cr.P.C. The following parameters are mentioned for the purpose of deciding a request of transfer of trial.

"s. 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 "

(emphasis supplied)

17. Learned counsel for the petitioner advanced arguments in the line of parameters of (a) and (c). Thus, it is to be seen whether the transfer of trials is necessitated to ensure fair and impartial trial or different trials will cause inconvenience to the parties.

18. In the considered opinion of this Court, it cannot be said that if the trials pending before the Courts at present continue as such, it

will cause any dent on the fairness of the trials or in other words, continuance of trial in the same Court will result into failure of justice. Similarly, the language employed in clause (c) of section 407 aforesaid shows that the law makers in their wisdom have used the expression "law tend to the general convenience of the parties or witnesses". The convenience of applicants alone cannot be the decisive factor. If it is general convenience to the parties or witnesses, transfer of trial can be directed. No such general convenience to the parties could be established. Apart from the present petitioners, there are other co-accused persons also in the matters sought to be transferred but they have not asked for any transfer at all. The complaints, complainants, FIRs, witnesses, concerned banks in all the trials are different. This is also not disputed by the parties that the trials pending in different courts have reached different stages. Thus, we are unable to hold that any of the parameters on which transfer can be ordered is satisfied.

19. No fault can be found in the order of learned Sessions Judge.

20. As a consequence, the application fails and is hereby dismissed.

                          (SUJOY PAUL)              (SHAILENDRA SHUKLA)
                            JUDGE                           JUDGE
      sourabh
Digitally signed by SOURABH
YADAV
Date: 2021.09.25 15:14:00
+05'30'