Applicant as well as learned A.P.P. and
considering the Judgment of the Hon'ble Supreme
Court in the matter of " Nahar Singh Yadav and
another vs. Union of India", cited supra, it is
clear that comparative hardship is a matter of
consideration. In the present matter, the
Applicant is claiming that he would suffer
hardship because of medical reason. However, if
copy of charge sheet, which has been shown at the
time of arguments, is perused, there are 28
witnesses. The witnesses are from Nandurbar area
and asking so many witnesses/persons to travel to
Nashik for the convenience of the Applicant, does
not appear to be justified. Experience shows as to
how at times trials prolong and witnesses are
required to keep coming again and get frustrated.
Inconvenience of so many people cannot be ignored
only because Applicant will be put to some
inconvenience. If he is under suspension, time is
at his disposal.
As regards the apprehension that the
Applicant would not get fair trial, there does not
appear basis for the same, other than pointing out
that various actions were taken by the Applicant
against the distributors, dealers and shop owners.
The Judgment of the Hon'ble Supreme Court in the
case of "Nahar Singh Yadav and another vs. Union
of India", cited supra, also mentions in factor
(v) that there has to be “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. Merely because the Applicant
has taken action against some persons, the same is
not sufficient to show that there is possibility
of the persons going out to the extent of
influencing the witnesses and taking the risk of
charge of tampering with evidence. Again, as
stated, most witnesses are Government Officials. I
do not think that ground is made out for transfer
of the Sessions Case.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO.290 OF 2014
Sanjay Babasaheb Deshmukh,
VERSUS
The State of Maharashtra,
CORAM: A.I.S. CHEEMA, J.
DATE : 29TH APRIL, 2014
Citation: 2016 ALLMR(CRI)1014
1. Admit. Heard finally with the consent of
the learned counsel for the parties. This
Application is filed under Section 407 read with
482 of the Code of Criminal Procedure, 1973, for
transfer of the Special Case.
2. Learned counsel for the Applicant
submitted that the Applicant was working as
District Agriculture Officer at Nandurbar when
chargesheet came to be filed on the basis of trap
laid under the provisions of the Prevention of
Corruption Act, 1988. Special Case No.21 of 2013
is pending in the Court of Special Judge,
Nandurbar. Learned counsel for the Applicant
submitted that the ApplicantAccused, in the
course of his posting at Nandurbar, had carried
out various raids and taken various actions
against the dealers, distributors and shop owners.
According to the learned counsel for Applicant,
the Applicant has apprehension if the trial takes
place at Nandurbar, such dealers, distributors and
shop owners will influence the witnesses and the
Applicant will not get fair trial. The learned
counsel referred to copies of documents at Page
Nos.17 to 112, to show how the Applicant and his
team of officers had taken various actions and
even there were seizures of stocks. Learned
counsel submitted that the Applicant has thus
apprehension that the witnesses will be influenced
by the persons against whom the Applicant has
taken action during his posting at Nandurbar.
3. It is argued that the Applicant is
suffering from spondylosis and learned counsel
referred to document at Exhibit C whereby the
Doctor has advised the Applicant not to sit for
long and travelling for the Petitioner is
difficult. The learned counsel submitted that on
these two grounds of apprehension and for medical
reasons, the Applicant wants the Petition to be
transferred from the Court at Nandurbar to the
Court at Nashik.
4. The learned counsel submitted that the
Applicant, after the suspension, has been given
his Head Quarter at Nashik and thus for attending
the matter, he has to travel from Nashik to
Nandurbar. Reliance was placed on the case of
Nahar Singh Yadav and another vs. Union of India,
reported in A.I.R. 2011 Supreme Court Page 1549.
The learned counsel submitted that the Supreme
Court laid down some broad factors which could be
kept in mind while considering application for
transfer of the trial. Para 24 of the Judgment
reads as under:
"24. Thus, although no rigid and
inflexible rule or test could be laid
down to decide whether or not power under
Section 406 of the Cr.P.C. 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
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."
. Learned counsel for the Applicant
submitted that he is relying on factor (iii) and
(v), in support of his contentions for making the
present request for transfer.
5. Learned A.P.P. opposed the Petition
contending that all the witnesses are from
Nandurbar and most of the witnesses are Government
servants and so there is no basis for
apprehension. She submitted that the Applicant
just cannot presume that persons concerned will
influence and there is no basis for apprehension.
Applicant's inconvenience compared with so many
witnesses being made to travel is not comparable.
6. Having heard the learned counsel for the
Applicant as well as learned A.P.P. and
considering the Judgment of the Hon'ble Supreme
Court in the matter of " Nahar Singh Yadav and
another vs. Union of India", cited supra, it is
clear that comparative hardship is a matter of
consideration. In the present matter, the
Applicant is claiming that he would suffer
hardship because of medical reason. However, if
copy of charge sheet, which has been shown at the
time of arguments, is perused, there are 28
witnesses. The witnesses are from Nandurbar area
and asking so many witnesses/persons to travel to
Nashik for the convenience of the Applicant, does
not appear to be justified. Experience shows as to
how at times trials prolong and witnesses are
required to keep coming again and get frustrated.
Inconvenience of so many people cannot be ignored
only because Applicant will be put to some
inconvenience. If he is under suspension, time is
at his disposal.
7. As regards the apprehension that the
Applicant would not get fair trial, there does not
appear basis for the same, other than pointing out
that various actions were taken by the Applicant
against the distributors, dealers and shop owners.
The Judgment of the Hon'ble Supreme Court in the
case of "Nahar Singh Yadav and another vs. Union
of India", cited supra, also mentions in factor
(v) that there has to be “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. Merely because the Applicant
has taken action against some persons, the same is
not sufficient to show that there is possibility
of the persons going out to the extent of
influencing the witnesses and taking the risk of
charge of tampering with evidence. Again, as
stated, most witnesses are Government Officials. I
do not think that ground is made out for transfer
of the Sessions Case.
8. For the reasons stated above, I find that
there is no merit in the Criminal Application.
The Criminal Application stands rejected.
[A.I.S. CHEEMA, J.]
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