After hearing the learned counsel for the petitioner, it is clear
that the petitioner is seeking transfer of Sessions Case No.39/10 from one
court to another court on the apprehension that there is threat to her and her
husband. Thus, the foundation for moving application under Section 408 of
the Code of Criminal Procedure is threat perception. Mere perception is not
adequate or it cannot be a reason for transferring particular criminal case
from one court to the another court. The foundation must have some basis.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY.
BENCH AT AURANGABAD.
CRIMINAL APPELLATE JURISDICTION.
Dhammadina w/o Pankaj Shivbhagat
Vs
The State of Maharashtra.
19th December, 2014.
CORAM : V.M. DESHPANDE, J.
DATE : 14th JANUARY, 2015.
Citation;2015 ALLMR(cri)1054
On the basis of First Information Report lodged by present
petitioner, Crime bearing C.R.No.8/08 is registered with Police Station,
Bhokar, Dist. Nanded against the present Respondent Nos. 2 to 31 for the
offences punishable under Section/s 395, 143, 342, 323, 504, 506 read with
34 of the Indian Penal Code.
After completion of usual investigation, the Investigating
Officer has filed charge-sheet in the court of law. The learned Judicial
Magistrate, First Class in whose court charge-sheet is presented found that
offence is exclusively triable by the court of Sessions, therefore, necessary
order of committal appears to have been passed and the case is committed to
the Court of Sessions. Case is pending on the file of the learned Additional
Sessions Judge, Bhokar vide Sessions Case No.39/10.
During pendency of said Sessions Case, O.M.C.A.No.72/12
[4]
under Section 408 of the Code of Criminal Procedure is filed by the present
petitioner before the learned Sessions Judge, Nanded for transfer of Sessions
Case No.39/10 from the file of Additional Sessions Judge, Bhokar to
another Additional Sessions Judge, Nanded. The reason for filing
application for transfer by the present applicant is that, she is apprehending
life threat to her and her husband. Said application was decided by the
learned Sessions Judge, Nanded on 10th March, 2014 and the learned
Sessions Judge, was pleased to reject the application filed under Section 408
of the Code of Criminal Procedure.
[5]
The learned counsel for the petitioner urged before me that the
applicant has made out good ground for transfer of Sessions Case No.39/10
from the file of learned Additional Sessions Judge, Bhokar. He further
submitted that he has filed on record the complaint/s filed by some other
witnesses which according to him, were also under perception of threat. He
submitted that these facts are not at all considered by the learned Sessions
Judge, therefore, this court should exercise writ jurisdiction and directs
transfer of Sessions Case No. 39/10 from the file of learned Additional
Sessions Judge, Bhokar to the learned Additional Sessions Judge, Nanded.
Per contra, Mr. S.A. Ambad, learned Additional Public
Prosecutor for Respondent No.1 and Mr. S.C. Bhosale, learned counsel for
accused supported the order passed by the learned Sessions Judge, Nanded
[7]
and submitted that no case is made out by applicant for transfer.
After hearing the learned counsel for the petitioner, it is clear
that the petitioner is seeking transfer of Sessions Case No.39/10 from one
court to another court on the apprehension that there is threat to her and her
husband. Thus, the foundation for moving application under Section 408 of
the Code of Criminal Procedure is threat perception. Mere perception is not
adequate or it cannot be a reason for transferring particular criminal case
from one court to the another court. The foundation must have some basis.
In order to buttress his argument and to show that foundation has basis, he
relied upon various complaints filed by the witnesses before the authority.
The learned counsel for the petitioner also relied upon the decision of
Hon'ble Apex Court in case of Mrudul M Damle & Anr vs C.B.I., New
Delhi, Transfer Petition (CRL)No.17 Of 2012. Said case in my opinion has
no bearing in the context of facts and, therefore, said case is of no use to the
applicant.
[8]
With the assistance of learned counsel, I have gone through
those complaints, which clearly show that those are filed much earlier.
Further no case is made out by the petitioner to show that in view of threat
given to other witnesses, the prosecution case is likely to be prejudiced.
[9]
Mr. S.A. Ambad, learned Additional Public Prosecutor has
submitted that there is no threat perception as could be clout from the
available material on record. Further if really any of the eye witness and /
or present petitioner were receiving life threats, it is/was open for them to
file appropriate application for cancellation of bail of accused persons,
either independently or through the Public Prosecutor. No such steps are
taken, therefore, grounds as canvassed by the learned counsel for the
petitioner, in respect of threat, it is merely apprehension without there being
any basis. Apprehension without basis cannot be a ground for transfer. In
that view of the matter, no illegality in the order impugned. The learned
Sessions Judge has considered the application correctly and has reached to
the correct conclusion by rejecting such prayer of transfer. Writ Petition failed and it is dismissed. Rule discharged.
(V.M. DESHPANDE, J.)
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