1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.1738/2008 WITH CRIMINAL APPLICATION NO.339/2008 C.L.Anto Petitioner Vs. State of Maharashtra & Ors. Respondents Mr.C.L.Anto ,petitioner ,in person Mrs.A.S.Pai,APP for the State Mrs.Manjula Rao for respondent no.2 & 3 CORAM: S.B.Mhase , & R.V.More ,J.J. DATED : November,14th , 2008. P.C. 1] Heard. 2] This petition is filed by the petitioner to re-transfer the Sessions Case no.334/2002 from the Shivadi Court,to the City Civil Court,Mumbai. The daughter of the petitioner was taking education in Sophiya College,and was residing in Sophiya College hostel .She is dead. It is alleged that the death was homicidal death and,therefore,the complaints were filed. On the basis of the complaint which is registered by the 2 police,the police have also found that it is homicidal death and after the investigation the chargesheet has been filed and after filing of the chargesheet the case has been numbered as Sessions Case no.334/2002. The said case has been transferred to the Sessions Court at Shivadi from the City Civil Court .The petitioner being aggrieved,approached to this Court with a prayer that the case be re-transferred.His grievance is that in collusion with the accused persons they transferred the said case to Shivadi Court. We clarify that Shivadi is not out of Mumbai, but it is a part of Mumbai and for the public convenience the jurisdiction which was earlier with the Sessions Court at City Civil Court,Mumbai ,that has been bifurcated . Since the case pertains to the area which is assigned to Shivadi Court the Sessions Case has been transferred to the said Court. Even the report from the City Civil Court was called for and the report states that in administrative capacity the case has been transferred . Hence there is no substance in the allegations of the petitioner. We find 3 that the case has been rightly transferred and there is no substance in the grievance made by the petitioner who is party in person. 3] It further appears that the petitioner was dis-satisfied with the investigation carried out by the police and,therefore,he filed a private complaint before 4th Girgaon Court bearing no. 584/ M/2003.Since the said case is pending it is impossible to continue with the trial of the Sessions Case.However,the said case has been filed after the completion of investigation and filing of the chargesheet. Under these circumstances the Magistrate before whom the said case has been filed is supposed to record the evidence which has been brought by the petitioner and thereafter if he finds that the case has been made out as alleged by the petitioner he can commit the said case for the trial alongwith the Sessions Case .However, the case is pending since 2003.Five years have gone and the petitioner has not completed his evidence before the Magistrate.The petitioner is trying to 4 conduct the case as if he is carrying out fresh investigation. That is not scope of the enquiry.He can only produce that evidence which was not collected by the police. Therefore,the Magistrate should have looked into the chargesheet filed by the police and thereafter should have looked in to the evidence which is desired to be produced by the petitioner and he should have after scanning avoided that evidence which was already collected by the police. 4] In order to ascertain what type of evidence he desires to lead in the criminal case before the Magistrate we have directed the petitioner to file an affidavit giving the names of the witnesses and documents to be produced .However,we have noticed that most of the witnesses which have been named have already been examined by the police and the documents have been collected by the police .We have also found that the petitioner is trying to have only fishing enqiry in to the matter .He does not know the names of the witnesses,etc.and instead he has given the description of the 5 witnesses which is not useful for issuing the summons. The petitioner appears to be interested in protracting the matter than to allow it to complete.We also get an impression from the various litigations which have been filed by the petitioner that the petitioner is trying to exploit the system of the Court by making hue and cry that his daughter has been killed in the hostel. In fact when the investigation u/s 173(8) is complete the police can also have further investigation into the matter if they desire to have.But overlooking all these provisions the petitioner is carrying out all types of tactics to have fishing enquiry .He remains absent whenever he desires .We have looked in to the proceeding of the Magistrate Court and we have found that on several occasions the petitioner has remained absent before the Magistrate and the Magistrate has no alternative but to adjourn the case from time to time and in this way five years have been consumed. In fact in a case before the Magistrate the accused are not supposed to remain present because the evidence is to be produced by 6 the complainant. But for collection of evidence the time has been consumed which is more than five years and in this background the petitioner is making allegations that the police have not looked in to the matter and they have helped to destroy the evidence.On the contrary we have found that the police have diligently investigated the matter and filed chargesheet in the matter. Being party in person he has fanciful notions and he therefore,protracts the matter in the Court . 5] Hence we give an understanding to the petitioner that he shall complete the case before the Magistrate as early as possible and within period of two months. The Magistrate who conducts the enquiry shall fix up the case of the petitioner on day today basis for coming next two months. We direct that the Magistrate shall look in to the investigation papers which are submitted in Sessions Case No.334/2002 and if he finds that the evidence has been already collected by the police he shall not allow the petitioner to lead fresh evidence on that ground. The Magistrate shall allow to lead 7 the evidence only of the witnesses who have not been examined by the police in their investigation. The petitioner shall attend the Court on day today basis and complete the case with all arguments within period of two months. In any circumstances the Magistrate shall not keep the case pending before him after two months. 6] With these directions the Magistrate shall proceed with the criminal case.So far as re-transfer of the Sessions Case from Shivadi Court to City Civil Court is concerned the petition is hereby rejected . 7] Stay to continue for two months. 8] If within two months the case is not completed the trial of the Sessions Case shall be commenced and the Trial Court shall not wait for the disposal of the criminal case. (R.V.More,J.) (S.B.Mhase, J.)