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Yenumula Sai Charan vs Yenumula Naga Durga on 31 January, 2024

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Andhra Pradesh High Court – Amravati

Yenumula Sai Charan vs Yenumula Naga Durga on 31 January, 2024

THE HON’BLE SRI JUSTICE BANDARU SYAMSUNDER

TRANSFER CRIMINAL PETITION No.88 of 2023

ORDER:

I have heard learned counsel, Mr. Raghu, representing on

behalf of Mr.Sai Gangadhar Chamarty, learned counsel for the

petitioners/accused as well as learned counsel, Mr.Thota Ashok

Kumar representing on behalf of Mr. K.Raja Sekhar, learned

counsel for respondent No.1.

2. This petition is filed by the petitioners under Section 407 of

the Criminal Procedure Code (in short “Cr.P.C”), seeking transfer

of C.C.No.619 of 2022 on the file of Judicial Magistrate of First

Class, Mangalagiri, Guntur District to Judicial Magistrate of First

Class, Rajahmundry, East Godavari District, on the ground that

R1 foisted a false criminal case against them and they are having

threat to their life, if they attend before the Judicial Magistrate Of

First Class, Mangalagiri, due to that they also filed W.P.No.28451

of 2021, seeking writ of Mandamus against the respondent and

others. The petitioners submit that R1 has foisted false case

against them, who also filed petition seeking for divorce and

petition under Section 125 Cr.P.C for maintenance and DVC
2

before the Courts at Mangalagiri, with false grounds. It is also the

contention of the petitioners that if they attend before the Courts

at Mangalagiri, they are apprehending danger to their life. They

pray to allow the petition.

3. R1/wife filed counter-affidavit denying the allegations made

in the affidavit of petitioners. It is the contention of R1 that

respondents No.9, 11 to 14 shown in the Writ Petition filed by

petitioners No. 1 and 2 are residents of East Godavari District,

who are close relatives of petitioners. She also stated that all the

witnesses are residents of Mangalagiri, only to drag on

C.C.No.619 of 2022, petitioners came with this petition. She prays

to dismiss the petition.

4. The learned counsel representing the petitioners would

submit that the petitioners are apprehending danger to their life,

if they attend before the Court at Mangalagiri, in false criminal

case foisted by R1, due to that they filed Writ Petition, seeking

for police protection. He prays to allow the petition.

5. The learned counsel representing R1 would submit that

petitioners have created ground seeking for transfer, though

respondent Nos.9, 11 to 14 shown in the Writ Petition are their
3

relatives who are residents of East Godavari District. He prays to

dismiss the petition.

6. Now, the point that emerges for consideration of this Court
is: –

“Whether there are any grounds to consider
the request of the petitioners to transfer
C.C.No.619 of 2022 on the file of Judicial
Magistrate of First Class, Mangalagiri, Guntur
District to Judicial Magistrate of First Class,
Rajahmundry, East Godavari District ?”

7. POINT:-

Before going to the merits of the case, it would be

beneficial to quote Section 407 of Cr.P.C. which reads 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,
4

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
5

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.

6

(9) Nothing in this section shall be deemed to affect any order
of Government under
section 197.”

8. It is settled law that mere apprehension that justice may

not be done at a particular forum and mere inconvenience of

petitioners cannot be a ground for transfer of a case, there must

be reasonable apprehension not mere apprehension that Trial

would be seriously undermine and justice would not be done, if

their request to transfer the case is not considered. The Hon’ble

Apex Court in Afjal Ali Sha @ Abjal Shaukat Sha Vs. State of

West Bengal others1, judgment dated 17.03.2023 while

considering the transfer of criminal case has held that transfer of

the cases has to be accepted in exceptional cases, considering

the fact that transfers may cast unnecessary aspirations on the

State Judiciary and the Prosecution Agency. Wherein it is also

discussed the ratio laid down by Hon’ble Apex Court in Nahar

Singh Yadav Vs. Union of India2, at para 29 which reads as

under:-

“29. Thus, although no rigid and inflexible rule or
test could be laid down to decide whether or not

1
2023 Live Law(SC) 268
2
(2011) 1 SCC 307
7

power under Section 406 CrPC 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;

8

(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.”

9. In the present case, petitioners arrayed as accused in

C.C.NO.619 of 2022 on the file of Judicial Magistrate of First

Class, Mangalagiri, Guntur District, for the offences punishable

under Section 498-A IPC and Sections 3 and 4 of Dowry

Prohibition Act, on a report lodged by R1/wife. SHO, Women

Police Station, Guntur Urban, Guntur District, after due

investigation, filed charge sheet against the petitioners, wherein

they have shown six(6) witnesses, out of them, four(4) witnesses

are the residents of Mangalagiri town of Guntur District and

one(1) witness is the resident of Vijayawada and another witness

is Sub-Inspector of Police, Disha Women Police Station, Guntur

Urban District. When most of the witnesses are residing within

the jurisdiction of Judicial Magistrate of First Class, Mangalagiri
9

and when petitioners have not specifically stated any incident

when they attended the Court in C.C.No.619 of 2022, this Court

is of an opinion that there are no grounds to consider the request

of the petitioners to transfer C.C.No.619 of 2022 on the file of

Judicial Magistrate of First Class, Mangalagiri, Guntur to Judicial

Magistrate of First Class, Rajahmundry, East Godavari District.

10. The learned counsel for the petitioners also relied on

Soma Choudhury Vs. Gourab Choudhaury3, wherein it is

held that “if the respondent/husband is apprehending threat to

his life, he can take police help by making an appropriate

application to the police station concerned”.

11. In this case, petitioners also taken necessary steps by filing

Writ Petition seeking for police protection, due to that there are

no grounds to consider the request of the petitioners to transfer

the case.

12. In the result, the Transfer Criminal Petition is dismissed. No

order as to costs.

3
(2004) 13 SCC 462
10

Consequently, miscellaneous petitions, if any, shall stand

closed. The interim stay granted if any, shall stand vacated.

__
JUSTICE BANDARU SYAMSUNDER

Date :31.01.2024.

RSD
11

THE HON’BLE SRI JUSTICE BANDARU SYAMSUNDER

TRANSFER CRIMINAL PETITION No.88 of 2023

Date : 31.01.2024

RSD

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