1 mpt IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 3015 of 2009 Sagar B. Parmar & ors, ... Petitioners versus The State of Maharashtra & ors. ... Respondents ... Mr.A.P. Mundargi i/b Sanjeev P. Kadam for the petitioners Mr. S.M. Sakhare i/b Dilip Bodake for respondent nos.2 and 3 Mr.Y.S.Shinde APP for the State. CORAM : D.G. KARNIK, J. DATED : 19th November 2009 P.C. 1. Rule. By consent, rule is made returnable forthwith. 2. Heard counsel appearing for the parties. 3. By this petition, petitioners challenge the order dated 11th November 2009 passed by the learned Sessions Judge, Satara withdrawing Sessions Case no.29 of 2009 from the file of 3rd Addl.Sessions Judge, Karad and transferring it to herself. 2 4. The respondent no.2 in this petition is the original complainant. At his instance, an FIR was registered against 9 persons (including 8 petitioners) for an offence punishable u/s.302, 120B of the IPC and also under the Arms Act. Respondent no.3 is the brother of the deceased and supports the respondent no.2. 5. A charge­sheet was filed in the Court of Judicial Magistrate, First Class, Karad who committed the accused to the Court of Sessions and it was made over to the Addl.Sessions Judge, sitting at Karad, of Satara Sessions Division. Before the commencement of the trial an application bearing Transfer Application No.101 of 2009 was moved by the respondent nos.2 and 3 before the Sessions Judge at Satara for transfer of the Sessions Case from the Court of Additional Sessions Judge at Karad to any Judge of the Court of Sessions at the head quarters i.e. At Satara. By an order dated 11th November 2009, the learned Judge of Sessions withdrew the case from the file of Additional Sessions Judge at Karad to herself. That order is impugned in this petition. 6. Mr.Mundargi, learned Senior Advocate appearing for the petitioner submitted that the learned Judge of Sessions erred in transferring the case without issuance of a notice to the petitioners. The petitioners reside at Karad, a taluka place and the order of transfer of the case to Satara would cause prejudice. They would be required to go to trial from Karad to Satara ( a distance of about 50 kms) and therefore, the order should be quashed. In support, he referred and relied upon a decision of a Single Judge of the Delhi High Court in Kuldeep Singh @ Bitta Vs. State (Manu/DE/0098/2008) In that case, the High Court held that though section 408 of the Court of Criminal 3 Procedure empowers the Sessions Judge to transfer the case from one criminal court to another criminal court in his sessions division either on the report of a lower court or on the application of any party interested or on his own initiative, where the order is passed at the instance of the complainant, the parties who are likely to be prejudicially affected by the passing of the order for transfer have to be heard. Such requirement was held to be implicit in section 408 of the Code of Criminal Procedure. The court held that it is a cardinal rule of natural justice that no order prejudicial to the accused should be passed by a court without affording such accused an opportunity of being heard. The High Court further held that the order of transfer passed by the Sessions Judge transferring the trial pending before the Metropolitan Magistrate to a fast track court, which was a superior court, would cause prejudice to the accused as he would lose valuable right of appeal and such an order could not have been passed without affording an opportunity of hearing to the accused. 7. In the present case, the matter is being transferred from an Additional Judge of Sessions to the Sessions Judge herself. The petitioners are not likely to lose any right of appeal by the transfer because both courts exercise the equivalent jurisdiction. The order of transfer, therefore, per se does not cause any prejudice and the petitioners would be required to establish prejudice for quashing of the order. Mr.Mundargi counsel submitted that the petitioner would be required to travel from Karad to Satara, a place which is 50 km away and that would cause prejudice to them. In my view, the ground is not substantiated on fact. Out of the nine accused, three are on bail while six others are in jail at Satara and are not required to travel to attend 4 the trial. No ground is pleaded in the writ petition about the inconvenience of travel for the remaining three accused. 8. Sub­section (2) of section 408 empowers the Sessions Judge either on his own initiative or on the report of the lower court or on the application of a party interested to transfer a case if the facts requiring transfer of a case from one place to another to meet ends of justice are brought to the notice of the Sessions Judge either by a party or any person interested or otherwise come to his knowledge. In the present case, facts as have been noticed by the Sessions Judge were certainly such that the Sessions Judge could and ought to have transferred the case. It is the case of the prosecution that one of the accused (Salim Shaikh), during the course of investigation stated that the accused were hired by a third person (who is not a party accused) for killing of the victim. A request was therefore made to the Judge by the prosecution for permission to make further investigation u/s.173(8) of the Code of Criminal Procedure. That application is pending. The person against whom further investigation is to be carried out is stated to be very influential and closely related to a local M.L.A. It is further alleged that the application under section 173(8) is not being decided for the reasons mentioned in paragraph no.22 of the order of the learned Sessions Judge. Though these facts by themselves may or may not be sufficient for transfer, there are other weighty reasons for the transfer. While the accused were brought to the Court of Sessions at Karad there was a shoot out in the court premises aimed at Salim Shaikh. Fortunately, Salim Shaikh survived. The learned Sessions Judge has states that the security arrangements in the Court at Additional Sessions at Karad are not adequate as compared with the security arrangements 5 available in the Court of Sessions at Satara. Office of District Superintendent of Police as also Central Jail is situate at Satara. Salim Shaikh as well as five other accused are detained in jail at Satara. In view of the facts of the case including security for transportation of the accused from Central Jail at Satara the Sessions Judge felt that the case ought to be transferred. The decision of the Sessions Judge based on security reasons and interest of justice to transfer the case from Addl. Sessions Judge at Karad to the Sessions Judge at Satara, in the facts and circumstances of the case cannot be faulted with. 9. There is no merit in the writ petition which is accordingly dismissed. Rule is discharged. (D.G. KARNIK,J.)