Transfer directed by SC under S. 406 of Code of Criminal Procedure when expedient for ends of justice: Supreme Court

 REPORTABLE IN THE CRIMINAL ORIGINAL JURISDICTION TRANSFER PETITIONNO. 17 OF 2021 ..PETITIONER M S SABU TRADE PRIVATE LIMITED JUDGMENT ANIRUDDHA BOSE J The present proceeding arises out of a case instituted by the respondents Sabu Trade Private Limited invoking jurisdiction of the Court of Judicial Magistrate No. IV Salemunder Section 156of the Code of Criminal Procedure 1973. By filing the present application under Section 406 of the 1973 Code the petitioner wants the case to be transferred to the Court of the Chief Judicial Magistrate Patiala House Court New Delhi. The allegation of the respondents in the said case is over use of the trade mark SACHAMOTI in respect of sago or sabudana by Rajkumar Sabu the petitioner). According to the respondents such use is illegal and unauthorised. The Respondents claim proprietary right over the said trade mark. The complaint was instituted on 22nd May 2017. The Judicial Magistrate Salemhad required the police authorities to conduct a thorough enquiry with regard to genuineness of the private complaint and a report was filed by the concerned Inspector of Police. The case was registered as CC No. 82 2018 on 5th April 2018. The Judicial Magistrate took cognizance of the alleged offences under Sections 420 of the Indian Penal Code and 103 of the Trade Marks Act 1999 and issued summons to the petitioner. The proceeding before the Court at Salem was instituted by the respondents represented by their Managing Director Gopal 2. Allegations were primarily directed against the petitioner in the complaint. But another individual Shiv Narayan Sabu was also implicated in the proceeding before the Salem Court. The Transfer Petition however has been brought by Raj Kumar Sabu alone. Subsequently an application for intervention has been filed by said Shiv Narayan Sabu. He supports the petitioner’s case for transfer. In the intervention application the grounds on which transfer is sought by the petitioner has been broadly repeated. Said Shiv Narayan Sabu has shown sufficient interest to intervene in this proceeding and I allow his application for intervention. Hence the intervenor’s cause shall be dealt simultaneously with the petitioner’s case. The intervenor has also alleged that he has been unnecessarily dragged into the dispute. But in this proceeding that grievance of the intervenor cannot be considered. I am to examine the plea for transfer of the aforesaid criminal case only Before the Salem Court examination in chief of three prosecution witnesses have been completed on 2nd March 2019 5th April 2019 and 27th May 2019 No. 7616. Gopal Sabu made complaints to the police authorities at Salem in the months of July and August 2016 seeking action against the petitioner on the allegation of counterfeiting the same brand referred to in the complaints inter alia as property mark. These complaints were founded also on certain other counts. In the suit instituted in the Delhi High Court counter claim was lodged by the respondents. 4. The respondents had filed a suit for declaration and injunction to prevent use of the said trade mark in the Court of District Judge Salem which was registered as OS No 148 of 2016. Another suit was filed on 19th August 2016 in the District Court of Indore but this suit had been rejected on 16th November 2016. There was also a suit by the respondents in the High Court at Calcutta registered as C.S. No. 1916. Proceedings in this suit however was initially stayed in view of pendency of the suit in Delhi High Court and subsequently this Court had directed the respondents to withdraw this suit. Both the petitioner and the respondents had filed two transfer petitions in this Court before the present one. These two transfer petitions were registered as being T.P.(C)No. 1320 of 2018 instituted by the Petitioner) and T.P.(C)No 1676 of 2017 for transferring the opponent’s suits to the Courts in which the respective parties had filed their suits. These transfer petitions were heard together by this Court and in a common order passed on 18th July 2018 a Bench comprising of three Hon’ble Judges of this Court was pleased to direct: “(i) OS No. 1416 titled as Sabu Trade Pvt. Ltd. v. Rajkumar Sabu & Anr. pending before the District Court Salem be transferred to the Delhi High Court for adjudication along with CS COMM) No. 761 of 2016 titled as Mr Rajkumar Sabu v. Ms. Kaushalya Devi Sabu & Ors. pending before the Delhi High ii) The injunction granted by the Delhi High Court vide order dated 10.06.2016 and confirmed by order dated 22.01.2019 is hereby set aside. The interim application for temporary injunction filed in CS No. 761 of 2016 stands revived before the Single Judge of the Delhi High Court and may be heard on merits. FAO(OS) No. 69 2019 FAO(OS)No. 72 2019 and FAONo. 73 2019 filed before the Division Bench of the High Court as against the order dated 22.01.2019 stand disposed of. iii) The order of the Madras High Court dated 07.01.2019 in CMA No. 8418 and CMP No. 6995 of 2018 as also the order dated 02.02.2018 passed by the Principal District Court Salem are set aside. The application for injunction filed in OS No. 148 of 2016 by Sabu Trade Pvt. Ltd. No. 7616 mentioned above. iv) The learned Single Judge of the Delhi High Court is requested to decide both the abovementioned applications for injunction in the respective suits within three months v) In view of the clubbing of OS No 1416 titled as Sabu Trade Pvt Ltd. v. Rajkumar Sabu & Anr. pending before the District Court Salem along with CSNo. 7616 titled as Mr. Rajkumar Sabu v. Ms. Kaushalya Devi Sabu & Ors. pending before the Delhi High Court and the fact that C.S.No.195 2016 pending before the Calcutta High Court is identical to the one transferred above we think it is unnecessary for the parties to litigate and pursue the matter pending before the Calcutta High Court. Accordingly we direct the petitioner to withdraw C.S.No.195 2016. vi) We make it clear that we have not expressed any opinion on the merits of the matter and the applications for injunction shall be decided by the High Court on their own merit uninfluenced by any observations made by either this Court or any High Court regarding this 5. Now the petitioner wants the criminal case pending in the Salem Court to be transferred to the Patiala House Court New Delhi. Two main grounds have been urged on behalf of the petitioner in support of his plea argued by Mr. S. Guru Krishnakumar learned Senior Advocate. One is that the points involved in the criminal case are similar to the suits which are being tried and determined by the Delhi High Court. The other ground taken is that the proceeding in the Salem Court is being conducted in Tamil which the petitioner does not understand. It has also been urged on behalf of the petitioner that it would be more convenient for the parties to conduct the proceeding in New Delhi as the civil suits are being heard in the Delhi High Court only. The petitioner also complains about distance of over 2000 kilometres between Salem and petitioner’s own place of residence at Indore and alleges that there is no direct connectivity between these two places. The authorities relied upon by the petitioner are i) Sri Jayendra Saraswathy SwamigalT.N vs. State of Tamil Nadu & Ors. 8 SCC 771] and Mrudul M. Damle & Anr. vs. Central Bureau of Investigation New Delhi 5 SCC 706]. It is also asserted on behalf of the petitioner that the respondents have influence in Salem and he has apprehension that he would not get impartial enquiry investigation trial at Salem. 6. Mr. Gopal Sankarnarayan learned Senior Advocate has highlighted in course of his submissions on behalf of the respondent the delay in approaching this Court seeking transfer of the criminal case. As per his submission proceeding was registered on 5th April 2018 and has made substantial progress The complaint has reached the stage of cross examination of the complainants’ witnesses by the petitioner. The transfer petition was filed on 12th January 2021. He also points out that personal appearance of the petitioner during trial stood dispensed with by an order of the Madras High Court. It is also his submission that the case pending in the Salem Court has criminal elements which ought not to be mixed up with the civil suit. Relying on a judgment of a Coordinate Bench in the case of Umesh Kumar Sharma vs. State of Uttarakhand and an earlier decision of this Court in the case of Gurcharan Dass Chadha vs. State of Rajasthan 2 SCR 678] he has argued that to sustain allegation of lack of neutrality in trial as a ground for transfer credible materials will have to be brought before the Court. His argument is that there is no such material that would justify transfer on this ground. Certain decisions have been referred to on behalf of the respondents on the point that civil and criminal proceedings can go on simultaneously in relation to similar transactions. But I do not consider it necessary to deal with these authorities as that point does not arise in the present proceeding which is a Transfer 7. I shall proceed on the basis that the suits being heard by the Delhi High Court would have points which could overlap with those involved in the criminal case pending in the Salem Court. But that very fact by itself in my view would not justify transfer of the said case. Substantial progress has been made in the said complaint before the Salem Court. So far as the subject criminal case is concerned the ground of overlapping points in any event cannot justify the petitioner’s case for transfer as even if the petition is allowed the criminal case shall have to proceed in the Court of Judicial Magistrate and not in the High Court where the civil suits are being heard. Two different judicial fora would be hearing the civil cases and the criminal case Whether the civil cases and the criminal case would continue together or not is not a question which falls for determination in this Transfer Petition. Moreover it does not appear that earlier any complaint was made about the proceeding being carried on at Salem. In fact the petitioner had applied for quashing the complaint before the Madras High Court but at that point of time no proceeding was taken out for transferring the criminal complaint Moreover on 8th June 2018 the petitioner had appeared before the Salem Court and received copy of the criminal complaint. This has been stated in the list of dates forming part of the Transfer Petition. At that point of time the two earlier Transfer Petitions were pending Those two petitions were disposed of on 18th July 2018. The petitioner does not appear to have had expressed their grievances on the basis of which this petition has been filed at that point of time. Barring claims being made by the petitioner of the respondents being influential person in Salem no material has been produced to demonstrate that such perceived influence can impair a neutral trial These allegations inter alia appear in an additional affidavit filed on behalf of the petitioner affirmed on 26th February 2021. The claims of the petitioner do not match the level of unjust influence exerted on the defence in the case of Sri Jayendra Saraswathy Swamigal supra) on the basis of which the transfer petition was allowed. In that case this Court found the prosecuting authorities were harassing the defence team of lawyers and there were materials demonstrated by the petitioner to show that the State machinery was going out of its way in preventing the accused from defending himself. The petitioner’s case of possible tainted trial is unfounded and does not meet the standard laid down in the cases of Gurucharan Dass Chadhaand Umesh Kumar Sharma while selecting the Court to which the case was to be transferred. But language was not the criteria based on which transfer of the case was directed. I have briefly discussed earlier the reason for which transfer of the case was directed. The language factor weighed with this Court while deciding the forum to which the case was to be transferred after decision was taken to transfer the case for certain other 9. Ordinarily if a Court has jurisdiction to hear a case the case ought to proceed in that Court only. The proceeding in the Salem Court has not been questioned on the ground of lack of jurisdiction but on the ground contemplated in Section 406 of the 1973 Code. Jurisdiction under the aforesaid provision ought to be sparingly used as held in the case of Nahar Singh Yadav & Anr. vs. Union of India & Ors 2011) 1 SCC 307]. Such jurisdiction cannot be exercised on mere apprehension of one of the parties that justice would not be done in a given case. This was broadly the ratio in the case of Gurcharan Dass Chadha 4 SCC 217] it was held: “46. Jurisdiction of a court to conduct criminal prosecution is based on the provisions of the Code of Criminal Procedure. Often either the complainant or the accused have to travel across an entire State to attend to criminal proceedings before a jurisdictional court. In some cases to reach the venue of the trial court a complainant or an accused may have to travel across several States. Likewise witnesses too may also have to travel long distances in order to depose before the jurisdictional court. If the plea of inconvenience for transferring the cases from one court to another on the basis of time taken to travel to the court conducting the criminal trial is accepted the provisions contained in the Criminal procedure Code earmarking the courts having jurisdiction to try cases would be rendered meaningless. Convenience inconsequential so far as the mandate of law is concerned. The instant plea therefore deserves 11. For these reasons I dismiss the present transfer petition. Connected applications if any shall also stand disposed of 12. There shall be no order as to costs …J (Aniruddha Bose Dated: 7th May 2021

Summary: In a transfer petition of a criminal case, the parties filed the same under section  406 of the Code of Criminal Procedure before the Supreme Court. While deciding the same, the court held that such a petition can be directed under section 406 of the Code only when it is expedient for the ends of justice. This judgment was passed in the case of Rajkumar Sabu vs. M/S Sabu Trade Private Limited [T.P.(Crl.) No. 17/2021] by a Double Bench consisting of Hon’ble Justice Aniruddha Bose and Hon’ble Justice Krishna Murari. The present proceeding arose from the case which was instituted by the respondents in the Judicial Magistrate Court IV (Salem Court) under section 156(3) of the Code of Criminal Procedure (Cr.P.C.). the petitioner on the other hand filed the present application under section 406 of Cr.P.C. to transfer the case to the Court of Chief Judicial Magistrate, New Delhi. The respondent alleged that the petitioner overused the trademark SACHAMOTI with regards to the sago made by him. The Respondent contended that such use is illegal and unauthorized and thus claimed proprietary rights over the same. Once the police investigation was done, The Judicial Magistrate took cognizance of the alleged offense under section 420 of the IPC and section 103 of the Trade Marks Act. although the allegations were against another apart from the petitioner, the transfer petition was brought only by the petitioner following which the other individual filed an application for intervention supporting the petitioner’s case for transfer. At the Salem Court, the examination in chief of three prosecution witnesses had been completed and the date for the next hearing was also given. The petitioner, intervenor, and Gopal Sabu were brothers. In the year 2016, there were litigation issues between the petitioner and Gopal Sabu, where the petitioner alleged infringement and passing off of the same trademark by the respondent. Consequently, suits were filed by the Respondent in Salem, in Indore which was rejected, and In the High Court of Calcutta which was stayed but the Supreme Court ordered the respondent to withdraw the same. The petitioner contended that there is an overlap of points between the criminal case and the one being tried by the Delhi High Court. The petitioner also presented the issue of language, distance, and the probability of a biased investigation due to the respondent’s influence in Salem; in order to substantiate the transfer of cases. The Respondent, on the other hand, contended the petitioner in approaching the court for transfer of criminal case and the mix up of civil suit and criminal case ought not to take place. The Supreme Court after hearing both the parties observed that the overlap of points cannot be a valid ground for admissibility of transfer petition. It went on to observe that criminal case shall have to proceed in the court of the judicial magistrate and the question of if the civil and criminal case should continue together does not fall within the ambit of Transfer petition. Since there was no evidence produced before the court regarding the influence of the respondent in Salem, the ground was rejected. The Supreme court held that the transfer petition under Section 406 of Cr.P.C can only be used sparingly and it cannot be exercised on the mere apprehension of one party that justice would not be done. The Court held that a case can be entertained under section 406 only if such a transfer is “expedient for the ends of justice” and the same goes beyond factors of mere convenience such as language and distance.