Criminal Application No.961 of 2003

19th December, 2003

Petitioner Counsel: Mr. S. V. SOHONI
Respondent Counsel: Mr. SANJAY DOIFODE

JUDGMENT

JUDGMENT :- Heard the learned counsel Mr. S. V. Sohoni for the applicant and Mr. Sanjay Doifode, the learned A.P.P. for the respondent-State.

2. The applicant has filed the present application under Section 407 of the Criminal Procedure Code read with Article 226 of the Constitution of India. Father of the applicant, namely Sunilkumar son of late Hemchandra Ganguly (hereinafter referred to as Mr. Sunilkumar for brevity's sake) is an accused in various criminal cases registered under Sections 406, 420 read with 34 of Indian Penal Code, in many Police Stations spread over in the State of Maharashtra. The applicant's contention is that report under Sections 3 and 5 of the M.P.I.D. Act,1999 is also lodged against Mr. Sunilkumar. The applicant is the daughter of Mr. Sunilkumar, who has filed this application under Section 407 of the Criminal Procedure Code. According to the contention of the applicant, there are about 26 criminal cases pending in various Criminal Courts situated within the limits of the State of Maharashtra. The applicant has filed statement along with the petition, showing the details about the crimes registered against Mr. Sunilkumar. From the said statement, it seems that the different crimes are registered against Mr. Sunilkumar at different districts in the State of Maharashtra. The applicant, therefore, seeks that all these cases should be clubbed and tried in one Court preferably at Nagpur.

3. The respondent-State has filed its reply opposing the application. The respondent has stated in the reply that the present application filed by the daughter of the accused is not maintainable in view of the provisions under Section 407 of the Criminal Procedure Code since she is not "party interested". The respondent has also opposed the application on the ground of incomplete investigation regarding the crime registered at Cr. No.135/02 at P.S.O. Gondia City against Mr. Sunilkumar and four other persons under Sections 420, 34 of Indian Penal Code and Section 3 of M.P.I.D. Act, on the report lodged by one Hukumchand Asati, resident of Amgaon, District Gondia. According to the respondent, in this case, statement of about 26 witnesses have been recorded and most of them are the residents of Katangitala, Rawanwadi, Baghuli, Jamnitola, Tumsar, Jabbartola, Tirora and Gondia City and other places within the territorial jurisdiction of Gondia District.

4. The learned counsel for the applicant states that M/s. Sanchayani Savings and Investment (India) Limited is a company incorporated under the Companies Act,1956, having registered office at Block-A, 9X, Kalyani Town, District Nadia (West Bangal) and Mr. Sunilkumar was/is one of the Directors of the said Company. According to the applicant, Mr. Sunilkumar was nominal Director and was not taken is confidence by the Company while conducting the affairs of the Company. The learned counsel also stated that Mr. Sunilkumar was not directly related to the transactions entered into or made by the said Company which has carried out its business since 21st October 1978 onwards. According to the learned counsel for the applicant Mr. Sunilkumar was arrested initially by Sitabuldi Police Station, Nagpur, with the help of Police Station Habra (West Bengal) on September 2, 2002, from his residence. Mr. Sunilkumar is old person of about 63 years and suffering from Bronchitis/Asthama and suffering from Sinus problem. Because of the hectic travelling which Mr. Sunilkumar requires to undertake to attend various cases in Maharashtra in Police custody, his health, according to the applicant, is also being deteriorating. The applicant has stated in the application that at present she is also not aware whereabouts of Mr. Sunilkumar. It is also stated in the application that two Directors of the above said Sanchayani Company, namely Sudipta Sen and Mrs. Gauri Bhowmick who are looking after the affairs of the above said Company, are not still arrested by the Police. The applicant has also stated in the application that in case of clubbing of the criminal cases/proceedings and directing the trial thereof in one Court, no hardship will be caused to any of the parties. The applicant also states that she is the only person in the family to look after Mr. Sunilkumar and it is also not convenient for her to extend any help to her father while defending him.

5. I have considered the provisions laid down under Section 407 of the Criminal Procedure Code which read as under :

"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 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-sec. (7).

(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.

(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 to do so 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 to 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."

Chapter XXXI of the Code of Criminal Procedure 1973, is important insofar as the transfer of the Criminal Cases is concerned. Section 406 of the Criminal Procedure Code empowers the Supreme Court to transfer the cases and appeals from one High Court to another High Court or from a Criminal Court subordinate to one High Court to another Criminal Court of equal or superior jurisdiction subordinate to another High Court. Section 407 of the Criminal Procedure Code empowers this Court to transfer the criminal cases on the ground that a fair and impartial enquiry or trial cannot be had in any Criminal Court subordinate thereto or some question of law of unusual difficulty is likely to arise or that an order under section 407 Cr.P.C. 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. Sub-section (2) of Section 407 says that 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. So far as the party interested is concerned, the accused in the case and the complainant up to some extent and in some cases, may be a party interested. Present is the application filed not by the accused, but his daughter as stated above. The learned A.P.P., therefore, referring to sub-section (2), states that this application is not maintainable and the applicant has no locus to move this application for transfer of the cases. The learned counsel for the applicant fairly admits that the application is not filed by the accused. The applicant could not point out as to how this application is maintainable. The applicant, therefore, cannot be said to to be party interested as contemplated under Sub-Section (2) of Section 407 of the Code of Criminal Procedure. This criminal application, therefore, is not sustainable and can be dismissed and disposed of on this ground alone.

6. I have also considered the nature of accusation made against Mr. Sunilkumar in the cases registered all over the State of Maharashtra. All the offences are registered under Sections 420, 406 and 34 of Indian Penal Code read with Sections 3 and 5 of M.P.I.D. Act. The applicant has stated in the application that the depositors spread over in the State of Maharashtra have lodged various complaints against the Company i.e. M/s. Sanchayani Savings and Investment (India) Ltd. and its Directors. In am also told at bar that the deposits have been collected by the said Company from all over the Maharashtra under various schemes with assured and beneficial repayment, with attractive benefits. It is because of the failure on the part of the said Company, it is stated by the learned A.P.P., that various complaints have been filed all over the State of Maharashtra. The number of persons who are local residents of the places where at the complaints have been lodged, are required to attend the Court for adducing their evidence. The witnesses, if any, are also bound to be from various and particular places where at the complaints have been lodged. If the present application is allowed, all the complainants who had invested money with the said Company, and after realising the cheating at the hands of the said Company, lodged reports, shall have to attend hearing of these cases at Nagpur. In my view, it will cause great hardship to all those complainants/witnesses/Police Officers and other officials of the Police Department concerned with the various complaints registered in the State of Maharashtra. The hardship, if at all, according to the contention of the complainant, which is likely to cause to Mr. Sunilkumar, father of the present applicant, if weighed with that of the hardship which is likely to be suffered by the complainants/witnesses/Police Officials spread over in the State of Maharashtra, is meager and inconsequential. The hardship of the complainants and the Police Officials/witnesses is more important and in fact, is wide spread. In this view of the matter, the applicant is not entitled to seek the relief of transfer and/or clubbing trials of all the cases at one place causing hardship to the complainants, Police Officials and witnesses as stated above. For this reason, I am not inclined to accept the prayer made by the applicant in the present application. Under these circumstances, the applicant is not entitled to seek the relief which is being sought in this criminal application. In the result, the criminal application is dismissed.

Application dismissed.