Crl. Misc. No.M-9989 of 2008(O&M) [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. Misc. No. M-9989 of 2008 (O&M) Date of Decision: September 16, 2010 Kanwar Singh …..Petitioners Vs. State of Haryana …..Respondent CORAM: HON’BLE MR. JUSTICE M.M.S. BEDI. -.- Present:- Mr.Kamal Mor, Advocate for the petitioners Mr.Amit Rana, DAG, Haryana. Mr.N.C. Kinra, Advocate for the complainant. -.- M.M.S. BEDI, J. (ORAL) This is an application for restoration of the transfer petition which was dismissed for non-prosecution. Counsel for respondent No.2 has contended that this Court has got no jurisdiction to review the earlier order. Reliance has been placed on Crl. Misc. No.M-9989 of 2008(O&M) [2] Hari Singh Mann Vs. Harbhajan Singh Bajwa and others, AIR 2001 SC 43. I have considered the circumstances in the present case. The application for transfer under Section 407 Cr.P.C. was dismissed on account of mistake of the counsel. It is claimed that the fair adjudication has been denied. It will be in the interest of justice in case the petitioner’s application for transfer is considered on merits. The petition has been taken up for final disposal. The FIR was registered against the petitioner as FIR No.65 dated January 31, 1998 at Police Station Civil Lines Rohtak. Respondent No.2 filed a writ petition in the High Court for transfer of the investigation to the CBI. The investigation was taken up on the basis of the allegations levelled by complainant- respondent No.2. The CBI submitted a report under Section 173 Cr.P.C. dated September 24, 2004 to the effect that the petitioner may be discharged in the interest of justice in the CBI Court, Ambala. Thereafter CBI submitted an application with photocopy of the challan in the Court of Judicial Magistrate Ist Class, Rohtak, for transfer of the case to the Court of CBI at Ambala. Vide order dated December 10, 2004, the learned JMIC dismissed the application. The learned Judicial Magistrate, Rohtak, referred the matter to the learned Sessions Judge, Rohtak. While deciding the reference, the sessions Judge passed the following order:- “This file has been put before this Court in vie of the reference dated December 10, 2004 made by the learned Crl. Misc. No.M-9989 of 2008(O&M) [3] Chief Judicial Magistrate, Rohtak. The prosecution moved an application dated December 10, 2004 before the learned Chief Judicial Magistrate, Rohtak praying that record of the present case be sent to the Court of Special Judicial Magistrate, CBI, Haryana, Amabla as the investigation of the presence case was entrusted to CBI by the Hon’ble High Court of Punjab and Haryana. CBI has submitted the report under Section 173 of the Code of Criminal Procedure on September 27, 2004 in the Court of Special Judicial Magistrate, CBI, Haryana, Ambala. The file should not have been sent to his Court by the learned Chief Judicial Magistrate, Rohtak in accordance with law at his own level. Hence, the file be and is remitted to the Court of learned Chief Judicial Magistrate, Rohtak.” Though the CBI has not preferred to pursue the case for transfer of the trial to the CBI Court but the accused- petitioner has filed an application under Section 407 Cr.P.C. before this Court for transfer of the case arising out of FIR No.65 dated January 31, 1998, Police Station Civil Lines, Rohtak to the Court of Special Judicial Magistrate, CBI, Ambala. I have considered all the facts and circumstances of the case. Since the CBI has opted not to prosecute the petitioner on the basis of Crl. Misc. No.M-9989 of 2008(O&M) [4] investigation by filing a report before the CBI Court, Ambala, the CBI does not have any jurisdiction to seek the transfer of the trial in FIR No. 65 dated January 31, 1998 from the Court of JMIC, Rohtak to Special Judicial Magistrate, CBI, Ambala. The CBI Court will have no jurisdiction to look into the matter which has been investigated by Haryana Police. Without expression of any opinion whether the investigation conducted by CBI would debar the trial of the petitioner in the Court of JMIT, Rohtak, it is observed that distinguishing the judgment of T.T.Antony Vs. State of Kerala and others, 2001 VAD (SC) 373, the Supreme Court in the case of Nirmal Singh Kahlon Vs. State of Punjab, (2009) 1 SCC 441 case has held that the investigation could have been conducted by CBI regarding the same matter pursuant to the directions of the High Court. I am of the considered opinion that inquiry in favour of petitioner by CBI is valid but the case registered by State can not be transferred. In view of the above circumstances, I am of the opinion that the petition for transfer filed by the petitioner from the Court of JMIC, Rohtak to the Court of Special Judicial Magistrate, CBI, Ambala, is not maintainable as such it is dismissed. The dismissal of this petition will not debar the petitioner to take the advantage of any report presented by CBI in his favour in the CBI Court. September 16, 2010 (M.M.S.BEDI) sanjay JUDGE