IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.33158 of 2008 Ganesh Prasad Singh son of late Ramadhar Singh, Senior Advocate, Patna High Court, resident of 13/2 Anandpuri, West Boring Canal Road, P.S. Srikrishnapuri, Town and District Patna ….Petitioner Versus State Of Bihar …Opposite party ----------- For the Petitioner : Mr.Rajendra Prasad Singh, Sr.Advocate Mr.Sharad Kumar Sinha, Advocate For the O.P.No.2 : Mr.M.S.Madhup, Advocate M/s Rajesh Kumar, Ram Prawesh Kumar For the State : Mr.Parmeshwar Mehta, A.P.P. O r d e r 4 6-4-2009 In the instant application, the petitioner prays for transfer of Ara GRPS UD Case No.42 of 2007, and Ara G.R.P.S.Case No.73 of 2007, dated 6.12.2007, from the court of Railway Magistrate, Ara to relevant court within Patna Sessions Division. The issue involved in this case is whether at the stage of investigation, a case can be transferred from one district to another district, or in other words, from one Sessions Division to another Sessions Division under section 407 Cr.P.C. The prosecution case is as follows; a dead body in a mutilated condition was found on the railway track of Karisath Railway station, within Ara district. The G.R.P. Ara Railway Station with aid of mobile of deceased found near her dead body, traced the parentage of girl and informed her father, one Birendra Prasad Singh of the incident, who subsequently lodged a report with Ara Rail P.S. on 6.12.2007. In his report, he stated that her daughter Sonu, aged about 20 years, had affairs with one Rajesh Bhardwaj son of this petitioner. - 2 - They used to regularly talk for hours on phone and mobile. In the night of 30.11.2007 at 10 P.M., the aforesaid Rajesh Bhardwaj took the informant‟s daughter Sonu on his motor cycle from his Patna residence situated at Kankarbagh, which was also witnessed by his domestic servants Baiju and Dharmendra. In course of enquiry, the informant learnt from his brother-in-law Dr. Sanjeev that Sonu called her Mausi, Dr. Anita, at 12.30 A.M. in night of 30.11.2007/1.12.2007 to inform her, that she is going out with Rajesh and will return after marriage. On 1.12.2007 at 7.15 A.M., the GRP Ara, informed him that the dead body of his daughter is lying on railway track. On the basis of the aforesaid statement, Ara G.R.P.S.Case No.73 of 2007 dated 6.12.2007, as contained in Annexure-4 was instituted. Prior to the institution of aforesaid regular case, post mortem of the body was done and U.D. Case bearing no.42/07, dated 1.12.2007, was registered. The petitioner has sought for transfer of aforesaid case from court at Ara to Patna. In support of his plea, learned counsel submits that under section 407(1)(c) and 407(1)(c)(ii) of Cr.P.C., the High Court has ample power to transfer a case, even during investigation from one district to another district. According to him Section 407(1)(c) confers power on High Court to transfer a case from one Sessions Division to another Sessions Division, if it tends to the general convenience of the parties or witnesses, or is expedient for the ends of justice. He submits that as per section 407(2), the High Court can transfer a case on its own initiative, also apart from the application - 3 - of the parties. He submits that the term „Case‟ would not essentially refer to a stage of enquiry or trial, but would also cover the stage of investigation. In this respect he relied upon a decision in the case of Prabha Singh Vs Bhanu Prasad, reported in 1949 Patna 105(Para-7) and a judgment of leanred Single Judge of Calcutta High Court in the case of State(CBI) Vs Klichine Aleksandre & Ors, 1996(1) CHN 507. The petitioner states that he has two sons. His elder son Rajan Bhardwaj is employed in Air Deccan and lives with his family at Delhi. He has to take plane all over India and as such the petitioner alone is left to look after and make necessary „Pairwi‟ in the case. He further submits that he sustained multi organ failure and was admitted in ICU of Max Hospital, Saket, New Delhi. The two Kidneys of the petitioner were also found damaged. His movement has been restricted and confined. He further submits that most of the witnesses are of Patna and it will not prejudice or cause inconvenience to either of the parties, if the case is transferred even at the stage of investigation, from Ara Sessions Division to Patna Sessions Division. He submits that there is no prohibition under statute for transferring a case even at the stage of investigation, from one Sessions Division to another Sessions Division. The petitioner has relied upon the aforesaid provisions enumerated above in support of his plea for transfer of the instant case from Ara Sessions Division to Patna Sessions Division. Mr. M.S. Madhup, learned Counsel appearing for the - 4 - informant submits that the petitioner in substance is praying for transfer of investigation of the case from Ara Sessions Division to Patna Sessions Division, which is not permissible in law. He submits that section 407 Cr.P.C. does not provide for transfer of investigation, but appeal and cases, where a fair enquiry or trial is not possible under section 407(1)(a) and other circumstances mentioned in section 407(1)(b) and (c) of Cr.P.C. are satisfied. He further submits that under section 407 Cr.P.C. a case during investigation can be transferred from one court to another in circumstances classified under sections 177 to 186 under Chapter XIII of the Code. Learned counsel submits that Privy Council in case of Emperor Vs Khwaza Nazir Ahmad, 1945 Privy Council 18 has held that court should not interfere with a statutory right of police to investigate under section 154 and 156 Cr.P.C., while exercising its inherent power under section 561A of the Old Code. As per the aforesaid decision, the Court functioning begins when a charge is prepared before it and not before that. Their Lordships further held that sanction of court to quash an investigation on ground that it would be an abuse of power of court would be to act on treacherous ground. At this moment this Court would like to point that the decision cited aforesaid would not be relevant for decision of issue in hand, as the petitioner has neither prayed for quashing the prosecution or for issuing direction to the Investigating Officer to conduct a case in a particular manner. The main contention of counsel is that no case can be - 5 - transferred from one district to another district at the stage of investigation. It can be transferred only at the stage of enquiry or trial. In order to appreciate the submissions advanced by learned counsel for the parties, it would be useful to quote relevant provisions of section 407(1) and (2) of Cr.P.C. which runs as under: “407. Power of High Court to transfer cases and appeals.-(1) Whenever it is made to appear to the High Court- (a) that a fair and impartial inquiry or trial cannot be had in any Criminal Court subordinate thereto, or (b) that some question of law of unusual difficulty is likely to arise; or (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) that any offence be inquired into or tried by any Court not qualified under sections 177 to 185 (both inclusive), but in other respects competent to inquire into or try such offence; (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) that any particular case be committed for trial of to a Court of Session; or (iv) that any particular case or appeal be transferred to and tried before itself. (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; - 6 - Provided that no application shall lie to the High Court for transferring a case from one Criminal Court to another Criminal Court in the same sessions division, unless an application for such transfer has been made to the Sessions Judge and rejected by him.” The bare reading of the provision would show that Section 407 relates to power of High Court to transfer cases and appeals. The moot question is whether transfer of case would take into its ambit a prosecution at stage of investigation and whether the term „Case‟ has been used in respect of stage, which would refer to a stage post completion of investigation and includes within its sweep the stage of commencement of enquiry and onwards. The word „Case‟ is not defined in the Code of Criminal Procedure. The word „Case‟ has a very wide connotation and meaning. It is a state of fact which furnishes occasion for exercise of jurisdiction of a court of justice. As per Law Laxicon the term „Case‟ is wider than that of a Suit or criminal prosecution or proceeding in Rem. In other words, it is a formal legal proceeding instituted in a court of law. Once an F.I.R. is registered basically a case is registered in respect of the offence alleged. As per Black‟s Law Dictionary, the term „Case‟ can be referred to a proceeding, action, suit or controversy at law. According to it, the term „Case‟ also visualizes the stage of criminal investigation. - 7 - The Hon‟ble Apex Court in the case of Bhimappa Bassappa Bhu Saunavar Vs Laxman Shivarayapppa Samagonda and others, reported in A.I.R. 1970 SC 1153, has interpreted the word „Case‟ to mean ordinarily a proceeding for the prosecution of a person alleged to have committed an offence. In other context, the word „Case‟ represent other kinds of proceedings also. A learned Single Judge of Calcutta High Court in the case of State (CBI) Vs Klichine Aleksandre & Ors, reported in 1996(1) Cal HN 507 has observed that „Case‟ means a proceeding for the prosecution of a person alleged to have committed an offence. It will also take within its ambit the stage of investigation also. A bench of this court in the case of Raghu Singh Vs Bhairo Prasad, reported in A.I.R. 1949 Patna 105, has observed that any particular case would not essentially refer to enquiry or trial only. In backdrop of the aforesaid facts, it would be difficult to accept the contention of the learned for the Opposite party that the word „Case‟ referred to in section 407 of the Code would only mean a proceeding post submission of charge sheet in a police instituted case. Once an F.I.R. is instituted a proceeding for prosecution of a person begins. The person who is alleged to have committed offence is subject to constraints of various provisions of the Cr.P.C. including one of taking bail etc. Further more, section 407(1)(i) also visualizes that a case can be transferred at a stage of investigation, if conditions mentioned under section 177 to 185 Cr.P.C. are satisfied. However, the conjoint reading of Section 407(1)(a)(b) & (c) - 8 - would show that the word „Case‟ occurring in section 407 has been used in reference to enquiry or trial and the legislature in its wisdom has omitted the word „investigation‟ in section 407(1)(a) of the Code. It may be noticed that word investigation and the manner in which it has to be conducted has been used in same enactment namely Cr.P.C. In view of above, section 407 Cr.P.C. refers to circumstances and at an stage under which the High Court can transfer cases viz at the stage of enquiry or trial, if conditions mentioned in sub-clause (a)(b) & (c) so justifies. Section 407 of the Code deals with the power of the High Court to transfer cases and appeal. Such power can be exercised on the report of the lower court or on the application of party interested or even on its own initiative. Section 407(1)(a) of Cr.P.C. states that if High Court is satisfied that a fair and impartial enquiry or trial can not be had in any subordinate criminal court, it can transfer the case from one court to the other. Section 407(1)(a) confers power on High Court to transfer a proceeding of enquiry also. Though section 407(1)(b)(c) do not repeat the term enquiry and trial, the provision evidently refers to the stage of enquiry and trial and are in continuation of sequence referred to in section 407(1)(a) Cr.P.C. Section 407(1)(b) provides the second situation in which appeal and cases at stage of enquiry or trial can be transferred if question of - 9 - KHAN law of unusual difficulty is likely to arise. The third circumstances is provided in section 407(1)(c), which confers power on High Court to transfer a case, if it is so required by any provisions of this court or the same will tend to the general convenience of the parties or witnesses, or if the same is required for the ends of justice. Thus I am not in agreement with submission of learned counsel for the petitioner that clause 407(1)(a)(b) & (c) Cr.P.C. confers power on High Court to transfer a case at stage of investigation from one Sessions Division to another Sessions Division. However, nothing limits the power of High Court to transfer a case, even at the stage of investigation, under its inherent jurisdiction under section 482 Cr.P.C., inter alia to secure the ends of justice. Such power is to be exercised with utmost restraint, on grounds of security, general inconvenience and to advance the cause of justice. In back drop of aforesaid discussions, it is held that section 407(1)(a)(b)(c) does not cover and refer to stage of investigation of a case. Accordingly the instant application for transfer of the instant case from Ara Sessions Division to Patna Sessions Division, at the stage of investigation, is not maintainable and is accordingly dismissed. (Samarendra Pratap Singh,J)