1` IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Criminal Application No. 1185/2008 Jayant d/o Sudhakar Dani vs. State of Maharashtra and another. ------------------------------------------------------------------------------------------------------------------ Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's or directions and Registrar's orders. Orders. ----------------------------------------------------------------------------------------------------------------- CORAM : A.P.LAVANDE, J DATE : 30.04.2008 Heard Shri J.M.Gandhi, learned counsel for the applicant and Mr. R.P.Joshi, learned Spl. P.P. for respondents. By this application under Section 407 read with Section 482 of Cr.P.C. the applicant who is the accused in Regular Criminal Case No. 360 of 2002 pending before the 2nd Additional Chief Judicial Magistrate, Nagpur seeks recall of the witnesses as well transfer of Criminal Case from the Court of Mr. A.S.Gattani who is presiding over as Additional Chief Judicial Magistrate, Nagpur to any other Court. In so far as the transfer of criminal case is concerned, Mr. Joshi placing reliance upon the proviso to sub section 2 of Section 407 of the Criminal Procedure Code submitted that since the Court of Additional Chief Judicial Magistrate is subordinate to the Sessions Judge, the 2` application for transfer has to be first moved before the concerned Sessions Judge. Mr. Gandhi, the learned counsel for the applicant does not dispute this proposition. Under Section 408 of the Code of Criminal Procedure, the Sessions Judge has jurisdiction to transfer the criminal cases pending before one court to another criminal court in its Sessions revision. Mr. Gandhi, the learned counsel for the applicant seeks leave to withdraw the application with liberty to file application for transfer under section 408 of the Code of Criminal Procedure before the concerned Sessions Judge. Mr. Joshi has no objection if the application is allowed to be withdrawn subject to the condition that all his contentions are kept open. In view of the above, the application in so far as the transfer of Regular Criminal Case No. 360 of 2002 is concerned is dismissed as withdrawn with liberty to the applicant to approach the concerned Sessions Judge under Section 408 for transfer of Criminal Case No. 360/02. 3` By this application filed under Section 482 of the Code of Criminal Procedure, the applicant also takes exception to the order dated 14.3.2008 passed by the 2nd Additional Chief Judicial Magistrate, Nagpur in Regular Criminal Case No. 360 of 2002 by which the application filed under Sections 91 and 311 of Cr.P.C. has been dismissed. It is not disputed that the application dated 11.3.2008 filed by the present applicant who is accused no.1 before the trial court was disposed of in the absence of the applicant and his advocate. There is serious dispute between the prosecution and the applicant as to when the applicant and his advocate appeared on 14.3.2008 on which date the impugned order came to be passed. However, I do not deem it necessary to go into this dispute. Since the impugned order has been passed without hearing the applicant and in the absence of the applicant and his advocate, in my opinion, considering the facts and circumstances of the case and in the interest of justice the impugned order deserves to be quashed and set aside with a view to give an opportunity to the applicant to advance argument on the application dated 11.3.2008. The parties whether in civil or criminal matters are expected to be in the court at the time fixed and in case of absence of the party more particularly the 4` accused the concerned Magistrate/Judge is entitled to take appropriate steps in accordance with the provisions of the Code of Criminal Procedure. However, in the present case the fact remains that the application was disposed of in the absence of the applicant and his advocate. In view of the above, in the interest of justice the impugned order dated 14.3.2008 is quashed and set aside subject to payment of costs of Rs. 1000/- in favour of the High Court Legal Services Sub Committee, Nagpur. The applicant is granted time of one week to pay the costs and the applicant after paying the costs shall file pursis to that effect within a period of one week thereafter before the learned Additional Chief Judicial Magistrate, Nagpur. The applicant shall appear before the trial court on 6.5.2008 at 11.00 a.m. for further direction. The application stands disposed of. Judge patle 5`