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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
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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
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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,
4it 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
5sureties, 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.
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(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 not1
2023 Live Law(SC) 268
2
(2011) 1 SCC 307
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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;
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(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
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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
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THE HON’BLE SRI JUSTICE BANDARU SYAMSUNDER
TRANSFER CRIMINAL PETITION No.88 of 2023
Date : 31.01.2024
RSD
