Hon''ble Mehta, J.@mdashThe present misc. transfer petition has been filed on behalf of the petitioner seeking transfer of Criminal Appeal No. 31/2006 from the court of the Sessions Judge, Jodhpur to this Court. The petitioner has been convicted for the offence u/s 51 of the Wild Life (Protection) Act and has been sentenced to undergo one year''s simple imprisonment along with a fine of Rs. 5000/- by the court of learned Chief Judicial Magistrate, Jodhpur by his judgment dated 17.2.2006. By the same judgment, the learned Chief Judicial Magistrate had acquitted the petitioner from the offences under Sections 143, 144, 148, 201 read with Section 149 IPC and Section 27 of the Arms Act. The petitioner has preferred the aforementioned appeal against the said judgment challenging his conviction, which is pending in the court of learned Sessions Judge, Jodhpur. At the same time, as per the judgment of the learned C.J.M. Jodhpur dated 17.2.2006, the other accused persons who were tried along with the petitioner namely Kuldeep and Others were totally acquitted from the charges levelled against them.
2. The State of Rajasthan has preferred two criminal appeals, first being Criminal Appeal No. 685/2006 against the acquittal of the co-accused persons from all the charges levelled against them and the acquittal of the present petitioner from the offences under Sections 143, 144, 148, 201 read with Section 149 IPC and Section 27 of the Arms Act and second being Criminal Appeal No. 267/2007 seeking enhancement of the sentence awarded to the petitioner for offence u/s 51 of the Wild Life (Protection) Act.
3. The present misc. transfer petition has been filed on behalf of the petitioner praying that the file of Criminal Appeal No. 31/2006 filed by the present petitioner against the judgment dated 17.2.2006 passed by the learned Chief Judicial Magistrate, Jodhpur which is pending before the learned Sessions Judge, Jodhpur may be transferred to this Court and be heard together with the aforesaid two criminal appeals being 685/2006 and 267/2007 as the same arise out of one judgment passed by the learned Chief Judicial Magistrate and, as such, the propriety and the law demands that the same may be heard together.
4. On notices of the transfer petition being issued, a reply was filed on behalf of the State of Rajasthan and a technical preliminary objection was raised that the transfer petition filed u/s 407 read with Section 482 Cr.P.C. was not supported by an affidavit and, as such, on the strength of the preliminary objection, the transfer petition should be dismissed because the provisions of Section 407(3) Cr.P.C. are mandatory in nature and unless and until the transfer petition is supported by an affidavit the same is liable to be rejected as having being filed in breach of the mandatory requirement of the transfer application u/s 407(1) Cr.P.C. being supported by an affidavit. No reply has been filed by the State to the legal and factual grounds raised in the transfer petition.
5. In response to the said preliminary objection, two affidavits were filed and taken on record of the petition, one being by Shri Salim Khan the power of attorney holder of the petitioner and other being of Shri H.M. Saraswat, counsel for the petitioner.
6. Grounds in detail have been set out in the affidavits as to why the transfer is sought.
7. Arguing on behalf of the petitioner, learned Sr. Counsel Mr. Udai Lalit has submitted that in this case, the provisions of Section 407(2) Cr.P.C. apply and, as such, the transfer petition cannot be thrown out on the ground that the same is not supported by the affidavit. Despite that, it has been submitted that on the preliminary objection being taken, the affidavits as required u/s 407(3) Cr.P.C. have been filed on record and that the non filing of the affidavit along with the petition was simply an irregularity, which can be cured even subsequently.
8. It has further been submitted that by virtue of Section 402 Cr.P.C. and Rule 113 of the High Court Rules, the different appeals arising out of the same judgment have to be heard and decided together by the same court. It has been submitted that in the event of the three different appeals arising out of a common judgment being heard and decided by different courts, a situation of great anomaly is likely to be arise inasmuch as there is every likelihood of the different courts passing different kinds of judgments in the matter and leading to absurd situations, as such, the propriety and the ends of justice require that the appeals should be heard and decided together by the same court. It has been further submitted that since the appeals against acquittal which are pending before the High Court cannot be heard by the learned Sessions Court, therefore, there remains no option but to direct the transfer of the appeal filed by the petitioner challenging his conviction before the Sessions Court to the Hon''ble High Court so that all the three appeals can be heard and decided together. It has been submitted that the requirement of filing of affidavits has been made for the cases wherein transfer is sought u/s 407(1) Cr.P.C. and the stringent requirement of an affidavit in support of the transfer petition is logical in cases, wherein, the transfer is sought on the basis of allegations made against the Presiding Officer of the Court hearing the case or where there is disputed question of fact viz. the convenience of the parties etc. It has been submitted that by virtue of Section 27 of the Rajasthan High Court Ordinance, 1949, the High Court has powers to direct the transfer of any criminal case or appeal to any other court of equal or superior jurisdiction and for invoking the exercise of powers u/s 27 of the Rajasthan High Court Ordinance, 1949, there is no requirement of filing of any affidavit. It has further been submitted that a pure question of law and propriety has been raised in this matter, therefore, even if affidavit is not filed in support of the transfer petition, then also, the transfer petition can be entertained.
9. It has been submitted that by virtue of Section 407(2) Cr.P.C, this Court has powers to act for transfer of the case on the report of the lower court or on its own initiative on the application of the party interested and in these circumstances, no affidavit would be required. He submits that when the powers u/s 407(2) Cr.P.C. are invoked, then, the requirement of filing of an affidavit does not apply to such a transfer application.
10. Finally, it has been submitted that for seeking the ends of justice, the appeal of the petitioner should be transferred/called to the Hon''ble High Court and be heard together with the aforesaid two appeals being Criminal Appeals Nos. 685/2006 and 267/2007. It has been submitted by Shri Udai Lalit, Sr. Advocate that by way of seeking transfer of the appeal to this Court, the petitioner stands at a disadvantage because in the event of his appeal being rejected by the Sessions Court, where it is pending at present, the petitioner would have a remedy of filing a revision before this Court, which the petitioner himself giving up and, as such, the State cannot have any objection to the transfer sought. The petitioner himself stands to loose the right to avail one forum of challenge in the event the appeal filed by the petitioner being decided against him by this Court instead of the sessions court.
11. Per contra, Mr. R.J. Jangid, learned Sr. Advocate and AAG has submitted that in this case, the transfer petitioner has to be rejected on the sole preliminary objection that the same has been filed without being supported by an affidavit. He submits that the subsequent filing of the affidavits cannot rectify the illegality and, as such, once illegality goes to the root of the matter, then, this Court has no option but to reject the transfer petition.
12. Reliance has been placed on the cases of Pal Singh and Another vs. Central Bureau of Investigation and Others, reported in (2005) 12 SCC 329,
13. It has been submitted on behalf of the State that the questions involved in the three appeals are entirely different and, as such, there is no difficulty in directing the learned Sessions Judge to proceed with the appeal filed by the petitioner and the decisions of the appeals filed by the State pending before this Court would then cover the issues which the Sessions Court decides. It has been thus submitted that the transfer petition deserves to be rejected.
14. Before proceeding to decide the petition on merits, the preliminary objection raised is being dealt with first. In the opinion of this Court, the preliminary objection of the State of Rajasthan regarding the petition being not maintainable on the ground of non filing of the affidavit cannot be accepted for a moment. In the case of Pal Singh (supra), the Hon''ble Apex Court was dealing with the situation wherein, the High Court had directed for making an inter state transfer. The Hon''ble Apex Court has held that the High Court has no power to pass such a direction. In that case, the Hon''ble Apex Court was not considering the question as to whether the transfer petition should be considered without an affidavit being filed. In the case of Vijay Pal (supra), the Hon''ble Apex Court was considering the case wherein the application for transfer was entertained by the Hon''ble Judge of the Punjab and Haryana High Court while being on tour. The Hon''ble Apex Court considered the situation wherein the Hon''ble Judge of the Punjab and Haryana High Court directed transfer of a case on an application made by the a party while he was camping at Gohana in connection with the inspection of the court. At that time, the complainant party of the case filed an application that they are being threatened by the accused and, thereupon, the learned Judge passed the direction of transfer without the file being received by the registry of the High Court and without same being supported by any affidavit. It is in this context that the transfer order was reversed by the Hon''ble Apex Court. In the present case, such is not a situation. The transfer petition was filed in the registry and the transfer is not sought on the basis of any allegation against any of the parties to the case or against Presiding Officer hearing the case.
15. In the case of Manindra Kumar (supra) which has been relied upon by Shri R.L. Jangid, Senior Advocate, the application which was filed for transfer of the case was based on certain allegations made against the Presiding Officer and it is in that background that this Court held that the filing of the affidavit in support of the transfer application was a mandatory requirement as per Section 407(3) Cr.P.C.
16. That apart on the preliminary objection being taken, the two affidavits have already been filed and taken on record in support of the petition for transfer. Now it cannot be said that the transfer petition is not supported by affidavit.
17. Thus, this Court is of the opinion that the objections which have been taken on behalf of the State do not restrain this Court for a moment from entertaining the present transfer petition on the technical objection regarding the maintainability of the transfer petition. That apart, the provisions of Section 407(2) Cr.P.C. reads as under:-
407. Power of High Court to transfer cases and appeals;(1). (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.
18. Thus, when the High Court is exercising the powers u/s 407(2) Cr.P.C. to direct the transfer of the case on its own initiative then in that situation, there would be no requirement of an affidavit being filed. The requirement of the affidavit is only in the cases covered by Section 407(1) Cr.P.C.
19. Certain provisions of the Code of Criminal Procedure also have a bearing on the controversy involved in the matter.
20. This Court while hearing of the appeal for enhancement has the powers to set aside the conviction as well. The provisions of Section 386 Cr.P.C. are relevant in this regard. Section 386(a) & (c) Cr.P.C. reads as under: -
386. Powers of the Appellate Court.-After perusing such record and hearing the appellant or his pleader, if he appears, and the Public Prosecutor, if he appears and in case of an appeal u/s 377 or section 378, the accused, if he appears, the Appellate Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may-
(a) in an appeal from an order of acquittal, reverse such order and direct that further inquiry be made, or that the accused be re-tried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law;
(c) in an appeal for enhancement of sentence -(i) reverse the finding and sentence and acquit or discharge the accused or order him to be re-tried by a Court competent to try the offence, or
(ii) alter the finding maintaining the sentence, or
(iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, so as to enhance or reduce the same.
21. Thus, from the perusal of these provisions, it becomes apparent that in the appeal filed by the State of Rajasthan challenging the acquittal of the petitioner in the same case from certain offences and the other appeal seeking enhancement of the sentence awarded to the petitioner, this Court is competent to reverse the conviction of the petitioner and acquit him. The conviction of the petitioner is the finding, which is under challenge in the appeal pending before the learned Sessions Judge and simultaneously while deciding the appeal of the State, this court has also powers by virtue of Section 386(a) & (c) Cr.P.C. to reverse the conviction of the petitioner.
22. Thus, there is every possibility and even likelihood of a situation of great anomaly arising in the matter because while the learned Sessions Judge while hearing the appeal filed by the petitioner against the conviction might uphold his conviction and at the same time, this Court while hearing the appeals being Criminal Appeals Nos. 685/2006 and 267/2007 pending before this Court may acquit the petitioner in the same case. A question of great difficulty would arise as to what would be the effect of the upholding of the sentence of the petitioner by the learned Sessions Judge, Jodhpur. Likewise, the situation can also arises, wherein, the learned Sessions Judge while hearing the petitioner''s appeal may reduce the sentence awarded to him and this Court while hearing the appeal for enhancement of the sentence may decide that the sentence awarded to the petitioner should be enhanced. Thus, these are the situations which in all likelihood can arise in the matter if the appeals are heard and decided separately. The provision of Section 402 Cr.P.C. is such a provision, which has been enacted in the statute book for the purpose of avoiding such a situation. The provision of Section 402 Cr.P.C. reads as under:-
402. Power of High Court to withdraw or transfer revision cases.
(1) Whenever one or more persons convicted at the same trial makes or make application to a High Court for revision and any other person convicted at the same trial makes an application to the Sessions Judge for revision, the High Court shall decide, having regard to the general convenience of the parties and the importance of the question involved. Which of the two Courts should finally dispose of the applications for revision and when the High Court decides that all the application for revision should be disposed of by itself, the High Court shall direct that the applications for revision pending before the Sessions Judge be transferred to itself and where the High Court decides that it is not necessary for it to dispose of the applications for revision, it shall direct that the applications for revision made to it be transferred to the Sessions Judge.
(2) Whenever any application for revision is transferred to the High Court, that Court shall deal with the same as if it were an application duly made before itself.
(3) Whenever any application for revision is transferred to the Sessions Judge, that Judge shall deal with the same as if it were an application duly made before himself.
(4) Where an application for revision is transferred by the High Court to the Sessions Judge, no further application for revision shall lie to the High Court or to any other Court at the instance of the person or persons whose applications for revision have been disposed of by the Sessions Judge.
23. This Court has no hesitation in arising at a conclusion that though the provision of Section 402 Cr.P.C. only refers to the revisional jurisdiction but the same analogy has to be applied to the appeals as well. When the situation of different appeals against the same judgment or in the same matter arises for consideration and then by virtue of Section 402 Cr.P.C, it has to be directed that all the different appeals arising out of the same judgment should be heard and decided together.
24. Rule 113 of the Rajasthan High Court Rules is also a relevant provision in this regard, which reads as under:-
Rule 113. Connecting cases.-No application shall be required for connecting cases arising out of the same decree, judgment or order and such cases shall be connected whether there be any application or not.
When any other cases are sought to be connected a properly stamped application shall be presented to the Registrar after giving notice to the advocates for all the other parties to such cases. The signature of an Advocate on such application shall be sufficient indication that notice has been given to him. Any party desiring to contest the application may file an objection within ten days. Where no objection has been filed, the Registrar may pass orders on the application. Where an objection has been filed, the application shall be listed before the Court for orders.
25. By the application of this Rule, no application is required for directing the connecting of cases arising out of different decree, judgment or order and such cases shall be connected whether there be any application or not. Such a direction for connection can be made even simply by giving notice to the party contesting the issue.
26. Therefore, this Court is of the opinion that the propriety and the ends of justice require that the ends of justice require that the three appeals referred to above which have been filed in the matter against the very same judgment are required to be heard and decided together by the same court. Since, the powers u/s 386 Cr.P.C, cannot be exercised by the learned Sessions Judge in this case, therefore, there is no option but to direct that the appeal filed by the petitioner against his conviction being Criminal Appeal No. 31/2006 pending in the Court of learned Sessions Judge, Jodhpur be transferred to the High Court and to be heard along with Criminal Appeals Nos. 685/2006 and 267/2007. Consequently, this misc. transfer petition succeeds and it is hereby directed that the Criminal Appeal No. 31/2006 pending in the Court of learned Sessions Judge, Jodhpur shall be transferred to the High Court forthwith and the same shall be tagged and heard along with Criminal Appeals Nos. 685/2006 and 267/2007.
