1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Criminal Application No. 10 of 2011 State of Maharashtra, through Dy. I.G.P, Gadchiroli Range,, Gadchiroli ..VERSUS.. Vernon Staniolos Gonsalves and another Office Notes, Office Memoranda of Coram, Appearances, Courts orders or directions Court’s or Judge’s orders and Registrar’s orders. Mr. T. A. Mirza, A.P.P. for the applicant. Mr. Vernon Golsalves, non-applicant no.1 in person. Mr. H. P. Lingayat, Advocate for non-applicant no.2. CORAM : Prasanna B. Varale, J. DATED : 05 th April , 2011 . 1. Heard. 2. The State of Maharashtra through Deputy Inspector General of Police, Gadchiroli Range, Gadchiroli has moved this application under Section 407 of Code of Criminal Procedure, seeking transfer of the sessions cases from the respective Sessions Court at Gadchiroli, Gondia and Mumbai to the Principal Sessions Court at Nagpur. The applicant has placed on record a chart of the criminal cases pending against the non-applicants and it will be useful to refer to the chart - Sr. District Police Station Crime No. Sessions Trial No. Provisions of law under which the reps. are facing trial Court in which trial is pending Date of filing of charge sheet 1. 2. 3. 4. 5. 6. 7. 8. 1. Gadchiroli Purada 29/2007 18/2010 Sec. 302, 143, 147, 148, 149, 108, 115, 150, 151, 285 R/w Sec. 3/25 of Arms Act. Sessions Judge-1, Gadchiroli 26.12.07 2. Gadchiroli Kurkhe da 32/2007 17/2010 Sec. 302, 120(b), IPC r/w Sec. 3/25 of the Arms Act. --”-- 28.12.07 3. Gadchiroli Purada 23/2007 28/2010 Sec. 307, 353, 143, 147, 148, 149 IPC r/w Sec.3/25 of the Arms Act. --”-- 27.12.07 2 1. 2. 3. 4. 5. 6. 7. 8. 4. Gadchiroli Purada 44/2007 07/2010 Sec. 143, 147, 148, 149, 120(b) IPC r/w Sec. 4 of Indian Explosive Act Sessions Judge-1, Gadchiroli 24.12.07 5. Gadchiroli Purada 34/2007 08/2010 Sec. 147, 148, 149 IPC R/w Sec.3/25 Arms Act and 4, 5 of Indian Explosives Act. Sessions Judge-1, Gadchiroli 24.12.07 6. Gadchiroli Purada 45/2007 25/2010 Sec. 143, 147, 148, 149, 120(b) IPC R/w Sec. 4 of Indian Explosives Act. Pri.District Judge, Gadchiroli 08.04.10 7. Gadchiroli Purada 14/2007 28/2010 Sec. 307, 353, 147, 148, 149 IPC r/w Sec. 3/25 the Arms Act Pri.District Judge, Gadchiroli 08.04.10 8. Gadchiroli Purada 51/2007 06/2010 Sec.143, 147, 148, 149, 120(b), 115, 151, 286 IPC r/w Sec. 4 of Indian Explosives Act and 3(5) of Indian Explosive Substances Act. Sessions Judge-1, Gadchiroli 19.12.07 9. Gadchiroli Purada 40/2007 21/2010 Sec. 143, 147, 148, 149, 120(b) IPC R/w Sec.4 of Indian Explosives Act. Sessions Judge-1, Gadchiroli 08.04.10 10. Gadchiroli Purada 49/2007 94/2010 Sec. 307, 143, 147, 148, 149, 120(b) IPC r/w Sec. 3/25 of the Arms Act and Sec. 4, 5 of Indian Explosives Act. Sessions Judge-1, Gadchiroli 29.06.10 11. Gadchiroli Purada 23/2007 127/2010 Sec. 307, 353, 143, 147, 149, 120(b) IPC r/w Sec. 3/25 of the Arms Act. Pri.District Judge, Gadchiroli 17.04.10 12. Gondia Chicha gad 06/2003 24/2010 Sec. 302,307,395,120(b), 147, 148,149 IPC r/w Sec. 3/25 of the Arms Act, Sec.3,4 of Indian Explosive Substances Act and Sec. 3,4 of Prevention of Damage to Public Property Act. Addl. Sessions Judge, Gondia. 25.07.10 13. Mumbai Anti- Terroris m Squad Police Station 10/2007 99/2008 Sec. 120(b), 121(a), of IPC, r/w Sec.3,25(1-b) of Arms Act, Sec. 6, 9-b of Indian Explosives Act, Sec.10,13,16,17,18,20,23,40(2) of UnlawfulActivities Prevention Act, Sec. 4(b), 5 of Indian Explosive Substances Act. Sessions Court No. 24, Mumbai 16.11.07 3. It is alleged by the applicant/State that the non-applicants are accused in the cases mentioned in the above referred chart. The non-applicants are alleged to be the members of the banned organizations namely Maharashtra State Committee CPI (Maoist) (a 3 banned organization under Unlawful Activities Prevention Act, 1967)) and alleged to be the active naxalites in Maharashtra. The above referred chart reveals that the non-applicants/accused are charged for various offences such as offences under Sections 302, 307, 353, 142, 147, 148, 149, 115, 151, 285, 286, 120(b) of IPC r/w Section 3/25 of the Arms Act as well as 4, 5 of the Indian Explosives Act. They are also charged with the offence punishable under the Unlawful Activities Prevention Act. 4. Mr. Mirza, learned APP has submitted that as per the material collected by the investigating agency, the non-applicants/ accused were the top level functionaries of the banned organization, involved in various offences and because of naxal attacks, the police personnel lost their life in the years 2008, 2009 and 2010 in Gadchiroli and Gondia districts. 5. The learned APP has further submitted that at present the non-applicants/accused are lodged at Nagpur Central Jail and whenever there is an occasion to produce the non-applicants/accused before the Court for trial, the police department on receiving information from jail authority for production of these non-applicants, has to make extensive arrangements, which include deployment of the security personnel and other necessary arrangements such as strong escort etc. The learned APP has further submitted that as the high risk is involved in transporting the non-applicants from Jail to the Court, every time the security measures involving utmost care are required to be taken. There is a possibility that while transporting these non-applicants from jail to the Court and vice-versa, the naxalites may attempt to attack on the escorting police party for rescuing the non-applicants. The learned APP, therefore, submitted 4 that in view of the high risk involved in travelling, the present application is moved for transfer of the cases from various courts to the Principal Sessions Court, Nagpur so as to minimize the risk factor as well as to facilitate the State to make effective security arrangements for transporting the non-applicants from jail to the Court and vice versa as the non-applicants/accused are lodged at Nagpur Central Prison. 6. I have heard non-applicant no.1, who is present personally and Mr. H. P. Lingayat, learned Advocate for respondent no.2 at length. 7. The respondent no.1 and the learned Advocate for respondent no.2 have opposed the application. They submitted that most of the cases referred in the chart are at concluding stage and they apprehend that transfer of the cases will result in delay in trial. 8. As the application revolves around the transfer of cases, it will be useful to refer to the relevant provisions of Section 407 of Cr.P.C., which reads thus - Section 407 - Power of High Court to transfer cases and appeals – (1) Whenever it is made to appear to the High Court - (a) ............... (b) ............... (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, it may order - (i) ................ 5 (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) ................. (iv) ................. (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 : .............................. 9. The present application is moved by the State. It is not in dispute that as the State is the party interested in criminal prosecution against the non-applicants/accused, it has moved the application raising the grounds as reflected in the application as well as in the submissions of learned APP. In view of the chart placed on record which is reproduced above, there are as many as 13 cases pending against these non-applicants, out of them 11 cases are pending at Gadchiroli Sessions Court and one each is pending at Sessions Court, Gondia and Mumbai. Though, it is not in dispute that it is duty of the State to provide the security for transporting the non-applicants/ accused from jail to Court and vice versa, the request made by the State for transferring the pending cases at various courts to the Principal Sessions Court at Nagpur for effective security measures, cannot be termed to be unreasonable. It cannot be said that the State is shirking of his responsibility, but what is reflected is that by transferring the cases pending at various courts to one court, the State will be in a better position in deploying the staff for making security arrangements effectively. The object of the State is laudable. 10. While dealing with the issue of transfer of cases, the Apex 6 Court in the case of A. R. Antulay .vs. R. S. Nayak and another, reported in A.I.R. 1988 Supreme Court 1531, has observed that “The power of transfer and withdrawal contained S. 407 of the Cr.P.C. is one dictated by the requirements of justice and is, indeed, but an aspect of the supervisory powers of a superior court over courts subordinate to it. A judicial discretion to transfer or withdraw is vested in the highest court of the State and is made exercisable only in the circumstances set out in the section. Such a power is not only necessary and desirable but indispensable in the cause of the administration of justice.” (para 162) 11. So far as apprehension expressed by the non-applicants about the delay in trial is concerned, in my opinion, it can be taken care of effectively if the cases pending at various courts are transferred to one Sessions Court at Nagpur. In the backdrop of this, it will be interesting to note that the the non-applicants by filing a Criminal Writ Petition No. 209/2010 before this Court, had raised a grievance that as they are not produced in the Court on certain occasions, the trials are getting delayed and are not progressing, hence, the right to a speedy trial is affected. While dealing with the said writ petition, the Division Bench, (Coram : Mrs. V. K. Tahilramani and P. B. Varale, JJ.) by order dated 14/3/2011, was pleased to observe that - “2. The case of the petitioners is that they have not been produced before the trial court and hence trials are not progressing, hence, their right to a speedy trial is affected. As far as this aspect is concerned, the learned APP has pointed out that as the cases are pending before different courts all over the State, it is very difficult to continuously produce the accused before the different trial courts. Hence, an application has been preferred by the State for transferring the cases to one Sessions Court. The said application is pending before the learned Single Judge. 7 3. The learned APP has also produced a chart which shows that in fact the applicant has been produced before the trial Court and his contention that in the last two years he has not been produced before any court is totally incorrect. The chart shows that he was produced before the trial court in the cases relating to Crime No. 10/07 42 times and in the case relating to Crime nos. 29/07 and 32/07 on 10 occasions. On perusal of the chart, it is noticed that in all the cases the petitioner has in fact been produced before the trial court. Looking to the report produced by the learned APP which shows that in fact the petitioner was produced before the trial court on number of occasions in these 13 cases, we find no merit in the contention that the petitioner has not been produced at all before the trial court. Hence, we are of the opinion that no case is made out for grant of compensation. 4. An application has already been moved by the State for transfer of the cases to one court which according to the State will facilitate expeditious disposal of all the cases. In this view of the matter, in our opinion, no further orders are necessary at this stage. Hence, the petition is disposed of.” 12. As observed above, the transfer of the cases pending at various courts to one Sessions Court at Nagpur, would facilitate the State to produce the non-applicants/accused before the Court, which will result into early disposal of the cases and as such the right to a speedy trial can be protected. 13. On giving anxious consideration to the above mentioned facts of the matter, I am of the opinion that the case is made out by the applicant for transfer of the cases from various Courts to one Sessions Court at Nagpur. I find considerable merit in the submissions of learned APP for the State. 14. At this stage, Mr. Golsalves, respondent no.1 in person and 8 Mr. Lingayat, learned Advocate for respondent no.2 have submitted that in case this court allows the application, necessary directions be given to the Sessions Court, Nagpur for disposal of the cases by fixing the time. 15. In my opinion, fixing of such time scale will not be possible in view of pendency of the 13 cases and the existing pendency of the cases of that Court. However, I hope and trust that on transfer of these cases to the Principal Sessions Judge, Nagpur, the said Court will hear and decide these cases as early as possible and within a reasonable period. 16. In the result, the application is allowed in terms of prayer clause (i). JUDGE Diwale