1. Heard Mr.J.K.Gupta, learned counsel for the applicant. Also heard Mr.Nitansh Jaiswal, learned Panel Lawyer for the respondent/State.
2. The petitioner has filed this petition under Section 407 of the CrPC for transfer of Special Criminal Case (POCSO Act) No.68/2023 pending before the Special Judge (POCSO), IInd Fast Track Special Court, Bilaspur to any other Court of the District Court, Bilaspur.
3. Brief facts of the case are that an FIR was lodged on 12.04.2023 by the father of the victim for offences under Section 376(2)(n) & 313 of the IPC and Section 4 & 6 of POCSO Act against the applicant at Police Station, Sarkanda, District Bilaspur bearing Crime No. 513/2023. The applicant was arrested on 12.04.2023, he is judicial custody and Special Criminal Case (POCSO Act) No. 68/2023 between State of Chhattisgarh v. Shubham Karosia is pending before Learned Special Judge (POCSO), IInd Fast Track Special Court, Bilaspur. The statements of the prosecution witnesses were recorded by the learned Court below, but on 9.1.2024 the victim of the case has appeared before the learned trial Court and submitted her affidavit, application for no objection for grant of bail to the applicant and application under Section 311 of the CrPC to re-examine herself because when the Court called her for recording of the statement, her parents were present with her, under whose pressure she was afraid to speak the truth before the Court and gave the statement as per the instructions of her parents. On 16.01.2024 the victim appeared & stated before the learned Court below that I want to live with the accused, I do not want to go with my parents" which she had mentioned in the order-sheet. Thereafter, the Court below sent the victim to the Child Welfare Committee, but since the victim has become an adult, the Child Welfare Committee refused to keep the victim, hence the victim was sent to Shakhi Center located at Nutan Chowk. But on 17.01.2024, the victim was sent to live with her parents without her will, which shows the hand in gloves with the authorities.
4. During hearing of the case, learned Court below has rejected the application of the applicant under Section 311 of the CrPC without assigning any reason. Learned counsel for the applicant applied for certified copy of the order sheets on 17.01.2024, but certified copies were not supplied because the Court below kept the file in her office and continuously listed the case for hearing and next date for defense witness was given for 22.01.2024.
5. Learned counsel for the petitioner submits that the applicant has been falsely implicated in the present case which can be revealed from the documents filed on behalf of the victim before the Court below and the Court below without considering those documents rejected the application under Section 311 of the CrPC with mala fide intention. He further submits that the victim in the present case had specifically mentioned in the order-sheet dated 16.01.2024 that “I want to live with the accused, I do not want to go with my parents" which she had mentioned in the order-sheet. Therefore the Court below sent the victim to the Child Welfare Committee, but since the victim has become an adult, the Child Welfare Committee refused to keep the victim, hence the victim was sent to Shakhi Center located at Nutan Chowk, but on 17.01.2024 the victim was sent to live with her parents. He also submits that the matter can be settled as per the order passed by this Court in CRMP No. 2173/2023 (Abhay Lalwani v. State of Chhattisgarh) because the victim in the present case was in love affair with the applicant and due to the threat of parents, she had deposed against the applicant before the Court below. He contended that the Court below orally stated and threatened the accused on 16.01.2023 that the Court will list this case day-by-day without any gap and also threatened the accused that even if the family of the victim file affidavit in support of the accused, she will not leave him and she will convict the accused in the present crime. The said action of the learned Court below is prejudice in mind which is not good in favour of Justice. As such, he prays for transfer of Special Criminal Case (POCSO Act) No.68/2023 pending before the Special Judge (POCSO), IInd Fast Track Special Court, Bilaspur to any other Court of the District Court, Bilaspur.
6. On the other hand, learned State counsel opposes the submissions made by the learned counsel for the applicant.
7. The applicant has stated that application under Section 311 of the CrPC to re-examine the victim was rejected by the Court below without assigning any reason and the counsel for the applicant has applied for certified copy of the same, but the same has not been provided to the learned counsel for the applicant.
8. Section 407 of the CrPC states 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 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:
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.
(3) Every application for an order under sub- section (1) shall be made by motion, which shall, except when the applicant is the Advocate- General of the State, be supported by affidavit or affirmation.
(4) When such application is made by an accused person, the High Court may direct him to execute a bond, with or without sureties, for the payment of any compensation which the High Court may award under sub-section (7).
(5) Every accused person making such application shall give to the Public Prosecutor notice in writing of the application, together with copy of the grounds on which it is made; and no order shall be made on of the merits of the application unless at least twenty- four hours have elapsed between the giving of such notice and the hearing of the application.
(6) Where the application is for the transfer of a case or appeal from any subordinate Court, the High Court may, if it is satisfied that it is necessary so to do in the interests of justice, order that, pending the disposal of the application, the proceedings in the subordinate Court shall be stayed, on such terms as the High Court may think fit to impose:
Provided that such stay shall not affect the subordinate Court's power of remand under section 309.
(7) Where an application for an order under sub- section (1) is dismissed, the High Court may, if it is of opinion that the application was frivolous or vexatious, order the applicant to pay by way of compensation to any person who has opposed the application such sum not exceeding one thousand rupees as it may consider proper in the circumstances of the case.
(8) When the High Court orders under sub-section (1) that a case be transferred from any Court for trial before itself, it shall observe in such trial the same procedure which that Court would have observed if the case had not been so transferred.
(9) Nothing in this section shall be deemed to affect any order of Government under section 197.”
9. A careful perusal of the aforesaid provisions would show that this Court can exercise the power of transfer where a fair and impartial inquiry or trial cannot be had in any Criminal Court subordinate thereto or some question of law of unusual difficulty is likely to arise or 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 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; 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; any particular case be committed for trial to a Court of Session; or any particular case or appeal be transferred to and tried before itself.
10. The Supreme Court in the matter of Ashish Chadha v. Asha Kumari and another (2012) 1 SCC 680 has held that transfers ordered merely on the say-so of a party have a demoralising effect on the trial courts and further held that that unless a very strong case based on concrete material is made out, such transfers should not be ordered.
11. The Supreme Court in the matter of Gurcharan Dass Chadha v. State of Rajasthan AIR 1966 SC 1418 held that transfer should not be made merely on the basis of apprehension but there must be a reasonable apprehension. It was observed as under:-
“13....... The law with regard to transfer of cases is well settled. A case is transferred if there is a reasonable apprehension on the part of a party to a case that justice will not be done. A petitioner is not required to demonstrate that justice will inevitably fail. He is entitled to a transfer if he shows circumstances from which it can be inferred that he entertains an apprehension and that it is reasonable in the circumstances alleged. It is one of the principles of the administration of justice that justice should not only be done but it should be seen to be done. However, a mere allegation that there is apprehension that justice will not be done in a given case does not office. The Court has further to see whether the apprehension is reasonable or not. To judge of the reasonableness of the apprehension the State of the mind of the person who entertains the apprehension is no doubt relevant but that is not all. The apprehension must not only be entertained but must appear to the Court to be a reasonable apprehension.”
12. Similarly, in the matter of Abdul Nazar Madani v. State of T.N. and another (2000) 6 SCC 204 the Supreme Court has held that the apprehension of not getting a fair and impartial inquiry or trial is required to be reasonable and not imaginary and observed as under:-
“7.......The apprehension of not getting a fair and impartial inquiry or trial is required to be reasonable and not imaginary, based upon conjectures and surmises. If it appears that the dispensation of criminal justice is not possible impartially and objectively and without any bias, before any court or even at any place, the appropriate court may transfer the case to another court where it feels that holding of fair and proper trial is conducive. No universal or hard and fast rules can be prescribed for deciding a transfer petition which has always to be decided on the basis of the facts of each case. Convenience of the parties including the witnesses to be produced at the trial is also a relevant consideration for deciding the transfer petition. The convenience of the parties does not necessarily mean the convenience of the petitioners alone who approached the court on misconceived notions of apprehension. Convenience for the purposes of transfer means the convenience of the prosecution, other accused, the witnesses and the larger interest of the society.”
13. In the matter of Capt. Amarinder Singh v. Prakash Singh Badal and others (2009) 6 SCC 260 while dealing with an application for transfer under Section 406 CrPC, their Lordships of the Supreme Court have opined that for transfer of a criminal case, there must be a reasonable apprehension on the part of the party to a case that justice will not be done and it cannot be directed only on apprehension. It was observed as under:-
“19. Assurance of a fair trial is the first imperative of the dispensation of justice. The purpose of the criminal trial is to dispense fair and impartial justice uninfluenced by extraneous considerations. When it is shown that the public confidence in the fairness of a trial would be seriously undermined, the aggrieved party can seek the transfer of a case within the State under Section 407 and anywhere in the country under Section 406 CrPC.
20. However, the apprehension of not getting a fair and impartial inquiry or trial is required to be reasonable and not imaginary. Free and fair trial is sine qua non of Article 21 of the Constitution. If the criminal trial is not free and fair and if it is biased, judicial fairness and the criminal justice system would be at stake, shaking the confidence of the public in the system. The apprehension must appear to the court to be a reasonable one.”
14. Finally, the Supreme Court in the matter of Usmangani Adambhai Vahora v. State of Gujarat and another (2016) 3 SCC 370 has held that seeking transfer at the drop of a hat is inconceivable. An order of transfer is not to be passed as a matter of routine or merely because an interested party has expressed some apprehension about proper conduct of the trial. The power has to be exercised cautiously and in exceptional situations, where it becomes necessary to do so to provide credibility to the trial. There has to be a real apprehension that there would be miscarriage of justice.
15. Reverting to the facts of the present case in the light of principle of law laid down by the Supreme Court in the above-stated judgments (supra) qua transfer of criminal case from one court to another, it is quite vivid that merely on the basis of apprehension based on conjectures and surmises, transfer cannot be directed unless apprehension is reasonable apprehension and such a power has to be exercised cautiously and in exceptional situations where it becomes necessary in the ends of justice and where there is likely to failure of justice. In the instant case, no apprehension much less the reasonable apprehension has been expressed or pleaded in the transfer petition, which is sine qua non for granting an application for transfer under Section 407 of the CrPC, as such, I do not find any good ground for transfer of Special Criminal Case (POCSO Act) No.68/2023 pending before the Special Judge (POCSO), IInd Fast Track Special Court, Bilaspur to any other Court of the District Court, Bilaspur.
16. Accordingly, the transfer petition deserves to be and is hereby dismissed.
