DATE OF ORDER
21st December 2021
BENCH
Division Bench: Justice Sheel Nagu and Justice Purushaindra Kumar Kaurav
Order passed by: Justice Purushaindra Kumar Kaurav
PARTIES
Applicant- Manoj Parmar
Respondent- Union of India and others
SUBJECT
The court in this case held that if there is an absence of pre-existing bias, power under Section 407 CrPC to transfer the cases should not be invoked.
IMPORTANT PROVISIONS
Section 407 CrPC
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 to a Court of Session; or
iv. that any particular case or appeal be transferred to and tried before itself.
OVERVIEW
- This application was filed under section 407 of CrPC for transfer of a pending case against the applicant in court of Additional Sessions Judge in Sehore to Court of Special Judge CBI, Bhopal.
- Two complaints were lodged against the applicant. The first complaint was lodged by Senior Branch Manager, Shri Rajendra Mohan Nayak of Punjab National Bank, Branch Astha District, Sehore and it was alleged that the applicant, with the help of certain bank officials has dishonestly and by means of fraud obtained a loan from the bank which resulted in causing loss to public exchequer. For this, he was charged with Sections 420, 467, 468, 471, 409 and 120-B of IPC. The trial for this offence is pending before the Court of Additional Sessions Judge, Astha District, Sehore.
- The second complaint was lodged by Shri Mulji Bhai Nanji Bhai Parmar, Circle Head, Punjab National Bank, Circle Office Bhopal (MP)the police station CBI, ACB Bhopal. According to this the applicant had allegedly entered into a criminal conspiracy with M.P. Karari, the then Senior Branch Manager, Punjab National Bank, Astha Branch District Sehore. The senior branch manager was said to have abused his official position. For this, he and the other accused were charged with under Sections 120-B read with Section 420, 467, 468 and 471 of IPC and under Section 13 (1) (d) read with Section 13(2) of the Prevention of Corruption Act 1988.The said case is pending before the Special Court, CBI at Bhopal.
- The applicant in this application claimed that the allegations in both the cases were similar so the Sessions Trial pending before the Court of ASJ Astha District Sehore be transferred to Special Judge, CBI, Bhopal as it was difficult to defend himself in both the matters simultaneously.
- It was submitted by the applicant that one Satyanarayan Vishwakarma was made as an accused in the case pending in Astha district whereas, he was a witness in CBI case. This would prejudice his right to fair and impartial trial, submitted the applicant.
ISSUE
Whether section 407 of Cr.P.C. can be invoked to transfer the case?
ANALYSIS
- The court after hearing the learned counsel for applicant, Union of India and the State of M.P. came to the conclusion that there was no legal ground for exercising the power under section 407 of Cr.P.C. and so the application was rejected
- The court examined the list of witnesses to be examined before both the courts and observed that the witnesses were not common and that the trial at Aastha court was at advanced stage so there was no legal or valid ground for transfer of cases.
- “It is well settled that a litigant cannot choose a Bench of his choice. It is only an exceptional circumstance, where the existence of “bias” or “likelihood of bias” when apparent on the facts and circumstances of the case, the High Court can invoke its discretionary power under Section 407 of Cr.P.C.,”said the court
- The court said that if an allegation of pre-existing bias is absent, Section 407 i.e., the power of transfer of a case should not otherwise be invoked.
CONCLUSION
The court has rightly decided that there is not legal ground for transferring the case. The main criteria under section 407 of CrPC is the assurance of fair trial but in the instant case no such thing has been found. The only reason the applicant gives for asking this is only that both the trials are same.
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