HON’BLE SRI JUSTICE P. DURGA PRASAD CRIMINAL PETITION No.7934 of 2008 Date:08.04.2011 Between: Kolagani Ravindra Prasad ….Petitioner. And: Medukonduri Udaya Bhaskar and another …..Respondents. HON’BLE SRI JUSTICE P. DURGA PRASAD CRIMINAL PETITION No.7934 of 2008 ORDER: This petition is filed under Section 482 Cr.P.C for quashing the order dated 05.11.2008 passed in Crl.M.P.No.1740 of 2008 by the Metropolitan Sessions Judge-cum-I Additional District & Sessions Judge, Visakhapatnam. The 1st respondent herein has filed an application under Section 408 of Cr.P.C for transfer of C.C.No.310 of 2006 from the file of V Metropolitan Magistrate-cum-Additional Judicial Magistrate of the First Class, Anakapalli to any other court. It is pleaded by the 1st respondent herein in the said petition that on 26.06.2008, he along with his counsel came out of the court hall and boarded into car of his counsel to leave to Visakhapatnam and when the car proceeded towards main gate of the court premises, the 1st respondent came in opposite direction obstructing their car from proceeding further and demanded the counsel of A.1 to hand over A.1 to him and also threatened his counsel with death if he fails to hand over A.1 to 1st respondent and did not allow the car to move and thereafter with the help of police constable with great difficulty A.1 could reach Anakapalli Police Station and lodged a report which is registered as a case in Crime No.129 of 2008. According to the 1st respondent herein, it is not safe for him to attend Anakapalle in view of the threat given by the petitioner and requested for transfer of the said case to any other court from Anakapalle court. Heard the learned counsel for the petitioner and the learned counsel for the 1st respondent. The learned counsel for the petitioner has pleaded that the learned Metropolitan Sessions Judge-cum-I Additional District & Sessions Judge, Visakhapatnam has allowed the petition taking into consideration of the incident that as alleged to have been occurred on 26.06.2008 and ordered for transfer of the said case from V Metropolitan Magistrate-cum-Additional Judicial Magistrate of the First Class, Anakapalli to IV Metropolitan Magistrate-cum-Judicial Magistrate of the First Class, Bhimili. The learned counsel has further pleaded that on the complaint given by the 1st respondent herein, a case in Crime No.129 of 2008 was registered by the Anakapalle Police and they have filed a final report in the said crime referring the case as a ‘mistake of fact’ and the said final report has become final as the 1st respondent has not filed any protest petition. He further pleaded that even though the petitioner was shown as 1st respondent in the said petition, no notice was given to him and as such they could not bring the factum of filing the final report in the above said Crime No.129 of 2008 of Anakapalle Town Police Station to the notice of this Court. The 1st respondent’s counsel, on the other hand, has pleaded that the present petition itself is not maintainable as the petition filed by the 1st respondent under Section 408 of Cr.P.C was allowed by the Metropolitan Sessions Judge-cum-I Additional District & Sessions Judge, Visakhapatnam and the petitioner ought to have filed an application under Section 407 of Cr.P.C for re-transferring of the case from Bhimili court to Anakapalle court. The 1st respondent’s counsel has not disputed about the filing of the final report in Crime No.129 of 2008 by the Anakapalle Town Police treating it as a ‘mistake of fact’. Therefore, the ground on which the 1st respondent has sought for the transfer was already found by the investigating agency as ‘mistake of fact’. As such no such incident as alleged by the 1st respondent took place on 26.06.2008. Even though the petitioner was shown as 1st respondent in the above said Crl.M.P.No.1740 of 2008, it does not disclose the service of any notice on the petitioner or hearing the counsel for the petitioner herein. The said Criminal M.P. was filed by the 1st respondent herein on 16.10.2008 whereas the final report in Crime No.129 of 2008 was filed on 29.07.2008 but the said factum of filing of the final report was not brought to the notice of the court by the 1st respondent and the petitioner has no opportunity to bring the same to the notice of the court as he was not given any notice in the above said petition. Therefore, had it been brought to the notice of the Metropolitan Sessions Judge-cum-I Additional District & Sessions Judge, Visakhapatnam, he ought not have passed the impugned order. Therefore, the impugned order is liable to be set aside and the Metropolitan Sessions Judge-cum-I Additional District & Sessions Judge, Visakhapatnam can be directed to dispose of the application filed in Crl.M.P.No.1740 of 2008 afresh by giving notice to the present petitioner. With regard to maintainability of the petition as contended by the learned counsel for the 1st respondent, Section 407 of Cr.P.C deals with powers of High Court to transfer cases and appeals. The Proviso to Section 407(2) of Cr.P.C read as under: “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.” Therefore, as per the above said proviso, when the application for transfer was rejected by the Sessions Judge, then only the application under Section 407 of Cr.P.C is maintainable before the High Court. In the present case, admittedly, the transfer application was allowed by the Sessions Judge. When the transfer petition was allowed, Section 407 of Cr.P.C will not be applicable as it is not an appeal against the orders passed by the Sessions Judge. Section 407 of Cr.P.C confers an independent power on the High Court for transfer of the cases when the request was rejected by the Sessions Judge and it is not an appellate authority over the orders passed by the Sessions Judge under Section 408 of Cr.P.C. Therefore, Section 407 of Cr.P.C is not applicable for the present case. As there is an apparent error committed by the Sessions Judge in not giving a notice to the petitioner herein in allowing the transfer application and as the said factum of filing of the final report in Crime No.129 of 2008 was not brought to the notice of the court, it is not just and proper to exercise the powers as contemplated under Section 482 Cr.P.C and quash the order in Criminal M.P.No.1740 of 2008 on the file of Metropolitan Sessions Judge-cum-I Additional District & Sessions Judge, Visakhapatnam. In the result, the criminal petition is allowed and the order dated 05.11.2008 passed in Crl.M.P.No.1740 of 2008 by the Metropolitan Sessions Judge-cum-I Additional District & Sessions Judge, Visakhapatnam is hereby quashed. However, the Metropolitan Sessions Judge-cum-I Additional District & Sessions Judge, Visakhapatnam is hereby directed to dispose of the said application afresh by giving notice to the petitioner herein who is the 1st respondent in the said petition uninfluenced by any of the observations made in this order. _____________________ P.DURGA PRASAD,J. Date:07.04.2011. Gk. HON’BLE SRI JUSTICE P. DURGA PRASAD CRIMINAL PETITION No.7934 of 2008 Date:08.04.2011 Gk.