transfer of criminal case on point of jurisdiction

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.THE HON'BLE SRI JUSTICE B. CHANDRA KUMAR

Criminal Petition No. 1170 of 2008

27-04-2010

Kolli Venkateswara Rao

S/o K.V. Appa Rao, Hindu,

45 years, Occ: Business, R/o. H.No.6-3-790/8, F-19, Bathina Apartments, Ameerpet, Hyderabad.

Y. Venkateswara Rao S/o Y. Purneswara Rao

Hindu, aged about 40 years, Occ: Business,

R/o H.No.8-3-903/3/A/3, D2 First Floor,

Omega Apartments, yellareddyguda,

Hyderabad - 500 073 and another

Counsel for petitioner: Mr. T. Ravi Kumar

Counsel for first respondent: A. Ramya Kumari

Counsel for second respondent: Public Prosecutor

:ORDER:

This Criminal Petition has been filed to quash the order dated 15-02-2008 in Tr.Crl.M.P.No.163 of 2008 on the file of the Metropolitan Sessions Judge, Hyderabad.

2. The brief facts of the case are as follows: The petitioner herein is the Accused in C.C.No.1162 of 2003 on the file of the III Additional Chief Metropolitan Magistrate, Hyderabad. According to the learned counsel for the petitioner, the petitioner had taken a specific stand before the trial Court that it has no jurisdiction to entertain the complaint and after completion of the evidence of the prosecution witnesses, DWs.1 to 3 were examined by the Accused.

It appears that the evidence of DWs.2 and 3 has been let in only on the jurisdiction aspect. At that stage, the first respondent, who is the complainant, filed Tr.Crl.M.P.No.163 of 2008 before the Metropolitan Sessions Judge, Hyderabad, and the learned Metropolitan Sessions Judge through the impugned order, allowed the petition holding that belatedness is no ground for rejecting the petition and it is only the XIV Additional Chief Metropolitan Magistrate' Court, Hyderabad, which has got jurisdiction to entertain the case and that both the Courts are located in one and the same building and that no prejudice will be caused to the petitioner-Accused.

3. The learned counsel for the petitioner raised two grounds. The first ground is that twenty four hours time ought to have been given by the learned Metropolitan Sessions Judge before hearing the application as required under sub-section (5) of Section 407 of Cr.P.C. His second ground is that when an Accused had taken a specific stand that the Court has no jurisdiction to entertain the complaint, taking cognizance of the offence and transferring the criminal case from that court to another Court having jurisdiction are illegal and caused prejudice to the accused.

4. The learned Public Prosecutor supported the impugned order.

5. As seen from the record, on behalf of the petitioner, DWs.1 to 3 were examined. DWs.2 is the Assistant Manager of State Bank of India, Yellareddyguda Hyderabad. DW-3 is the Constable working in Punjagutta Police Station. The petitioner seems to have examined DWs.2 and 3 only for the purpose of proving his defence that Yellareddyguda Branch of State Bank of India is within the territorial jurisdiction of Punjagutta Police Station. Thus on the jurisdictional aspect the petitioner seems to have let in the evidence of DWs.2 and 3. It appears that it is not desirable to discuss about the merits and demerits of the case and also jurisdictional issue in this petition. Without touching upon the merits of the case and the rival contentions, it may be more appropriate to consider whether the learned Metropolitan Sessions Judge has followed the procedure contemplated under Sub-Section (5) of Section 407 of Cr.P.C. or not and whether the impugned order is illegal and liable to be set aside.

6. Sub-Section (5) of Section 407 of Cr.P.C. reads as follows: "(5) Every accused person making such application shall give to the Public Prosecutor notice in writing of the application, together with a copy of the grounds on which it is made; and no order shall be made on 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."

7. Though the words "Public Prosecutor" have been used in the above provision for all practical purposes in a private complaint, it has to be held that the counsel for the complainant stepped into the shoes of the Public Prosecutor in respect of the complaint filed under Section 200 of Cr.P.C. In view of the same, it appears from a fair reading of Sub-section (5) of Section 407 of Cr.P.C. that it is mandatory for the Court to give at least twenty four hours time before hearing the application filed under Section 407 of Cr.P.C. seeking transfer of a case from one Court to another Court.

8. As seen from the record, the notice to the counsel for the petitioner- Accused was given on 15-02-2008 at about 9-30 AM and on the same day, the impugned order was passed. It is always desirable, perhaps can be appreciated, if the applications have been disposed of as expeditiously as possible. However, if there is a mandatory provision, the Courts are bound to follow such provision. The legislature, in their wisdom, probably to give an opportunity to the Public Prosecutor to ascertain the facts and to oppose the petitions or to prevent the transfer petitions filed with some ulterior motive, seems to have made sub-section (5) of Section 407 of Cr.P.C. and made it mandatory for the Court to give at least twenty four hours time before hearing a transfer application. In view of the same, for noncompliance of sub-section (5) of Section 407 of Cr.P.C., the impugned order is liable to be set aside.

9. In the result, the Criminal Petition is allowed and the impugned order, dated 15-02-2008 in Tr.Crl.M.P.No.163 of 2008 is set aside. The matter is remanded to the learned Metropolitan Sessions Judge directing to give sufficient time as required under law to both the parties and hear the matter afresh and dispose of the same in accordance with the law.