HON’BLE SRI JUSTICE B. CHANDRA KUMAR + Crl.P.No. 1170 of 2008 % Dated: 27-04-2010 # Kolli Venkateswara Rao S/o K.V. Appa Rao, Hindu, 45 years, Occ: Business, R/o. H.No.6-3-790/8, F-19, Bathina Apartments, Ameerpet, Hyderabad. … Petitioner $ Y. Venkateswara Rao S/o Y. Purneswara Rao Hindu, aged about 40 years, Occ: Business, R/o H.No.8-3-903/3/A/3, D2 First Floor, Omega Apartments, yellareddyguda, Hyderabad – 500 073 and another … Respondents ! Counsel for petitioner: Mr. T. Ravi Kumar ^ Counsel for first respondent: A. Ramya Kumari ^ Counsel for second respondent: Public Prosecutor < GIST: >HEAD NOTE: ? Cases referred: NIL HON’BLE SRI JUSTICE B. CHANDRA KUMAR Crl.P.No. 1170 of 2008 Date: 27-04-2010 Between: Kolli Venkateswara Rao ……….. Petitioner and Y. Venkateswara Rao and another ………. Respondents HON’BLE SRI JUSTICE B. CHANDRA KUMAR Crl.P.No. 1170 of 2008 ORDER: This Criminal Petition has been filed to quash the order dated 15-02-2008 in Tr.Crl.M.P.No.163 of 2008 on the file of the Metropolitan Sessions Judge, Hyderabad. 2. The brief facts of the case are as follows: The petitioner herein is the Accused in C.C.No.1162 of 2003 on the file of the III Additional Chief Metropolitan Magistrate, Hyderabad. According to the learned counsel for the petitioner, the petitioner had taken a specific stand before the trial Court that it has no jurisdiction to entertain the complaint and after completion of the evidence of the prosecution witnesses, DWs.1 to 3 were examined by the Accused. It appears that the evidence of DWs.2 and 3 has been let in only on the jurisdiction aspect. At that stage, the first respondent, who is the complainant, filed Tr.Crl.M.P.No.163 of 2008 before the Metropolitan Sessions Judge, Hyderabad, and the learned Metropolitan Sessions Judge through the impugned order, allowed the petition holding that belatedness is no ground for rejecting the petition and it is only the XIV Additional Chief Metropolitan Magistrate’ Court, Hyderabad, which has got jurisdiction to entertain the case and that both the Courts are located in one and the same building and that no prejudice will be caused to the petitioner-Accused. 3. The learned counsel for the petitioner raised two grounds. The first ground is that twenty four hours time ought to have been given by the learned Metropolitan Sessions Judge before hearing the application as required under sub-section (5) of Section 407 of Cr.P.C. His second ground is that when an Accused had taken a specific stand that the Court has no jurisdiction to entertain the complaint, taking cognizance of the offence and transferring the criminal case from that court to another Court having jurisdiction are illegal and caused prejudice to the accused. 4. The learned Public Prosecutor supported the impugned order. 5. As seen from the record, on behalf of the petitioner, DWs.1 to 3 were examined. DWs.2 is the Assistant Manager of State Bank of India, Yellareddyguda Hyderabad. DW-3 is the Constable working in Punjagutta Police Station. The petitioner seems to have examined DWs.2 and 3 only for the purpose of proving his defence that Yellareddyguda Branch of State Bank of India is within the territorial jurisdiction of Punjagutta Police Station. Thus on the jurisdictional aspect the petitioner seems to have let in the evidence of DWs.2 and 3. It appears that it is not desirable to discuss about the merits and demerits of the case and also jurisdictional issue in this petition. Without touching upon the merits of the case and the rival contentions, it may be more appropriate to consider whether the learned Metropolitan Sessions Judge has followed the procedure contemplated under Sub-Section (5) of Section 407 of Cr.P.C. or not and whether the impugned order is illegal and liable to be set aside. 6. Sub-Section (5) of Section 407 of Cr.P.C. reads as follows: “(5) Every accused person making such application shall give to the Public Prosecutor notice in writing of the application, together with a copy of the grounds on which it is made; and no order shall be made on the merits of the application unless at least-twenty-four hours have elapsed between the giving of such notice and the hearing of the application.” 7. Though the words “Public Prosecutor” have been used in the above provision for all practical purposes in a private complaint, it has to be held that the counsel for the complainant stepped into the shoes of the Public Prosecutor in respect of the complaint filed under Section 200 of Cr.P.C. In view of the same, it appears from a fair reading of Sub-section (5) of Section 407 of Cr.P.C. that it is mandatory for the Court to give at least twenty four hours time before hearing the application filed under Section 407 of Cr.P.C. seeking transfer of a case from one Court to another Court. 8. As seen from the record, the notice to the counsel for the petitioner-Accused was given on 15-02-2008 at about 9-30 AM and on the same day, the impugned order was passed. It is always desirable, perhaps can be appreciated, if the applications have been disposed of as expeditiously as possible. However, if there is a mandatory provision, the Courts are bound to follow such provision. The legislature, in their wisdom, probably to give an opportunity to the Public Prosecutor to ascertain the facts and to oppose the petitions or to prevent the transfer petitions filed with some ulterior motive, seems to have made sub-section (5) of Section 407 of Cr.P.C. and made it mandatory for the Court to give at least twenty four hours time before hearing a transfer application. In view of the same, for noncompliance of sub-section (5) of Section 407 of Cr.P.C., the impugned order is liable to be set aside. 9. In the result, the Criminal Petition is allowed and the impugned order, dated 15-02-2008 in Tr.Crl.M.P.No.163 of 2008 is set aside. The matter is remanded to the learned Metropolitan Sessions Judge directing to give sufficient time as required under law to both the parties and hear the matter afresh and dispose of the same in accordance with the law. __________________ B. CHANDRA KUMAR, J Date: 27-04-2010 YCR