Dilip Mehta vs Girish Kurariya And Others

The applicant has filed this petition under Section 482 read with 407 of the Code of Criminal Procedure, 1973 being aggrieved by the order dated

21/08/2018 passed by learned Sessions Judge, Jabalpur in M.J.C. No.965/2018 whereby learned Sessions Judge directed to transfer Sessions Trial

No.311/2018 from the Court of 8th Additional Sessions Judge, Jabalpur to the Court of 13th Additional Sessions Judge, Jabalpur for trial.

The facts giving rise to this petition, in short, are that respondent No.1 who is a practicing lawyer in the District Court, Jabalpur, filed a complaint

against the applicant as well as Bhagwan Singh Patel and Sanjay Kumar Patel under Section 200 of Cr.P.C. and also lodged report against applicant

as well as other persons at Police Station Barela, Distt. Jabalpur on the same dispute. The complaint case was pending before the Court of JMFC,

Jabalpur. The Court of JMFC vide order dated 07/07/2014 registered Complaint Case No.7838/2014 against the applicant, Bhagwan Singh Patel and

Sanajay Kumar Patel which was set aside by the revisional Court in Criminal Revision No.262/2014 by order dated 21/11/2014. On the basis of report

lodged by respondent No.1 Police also registered FIR at Crime No.273/2016, Police Station, Barela, Distt. Jabalpur and after completion of

investigation, prepared charge sheet and submitted charge sheet against the applicant as well as other persons which is pending as S.T. No.311/2018

in the Court of 8th Additional Sessions Judge, Jabalpur.

Later on respondent No.1 filed an application before the Court of JMFC for withdrawing that complaint on the ground that on the basis of same

dispute, charge sheet has been filed and the case is pending as S.T. No.311/2018. Learned Court of JMFC vide order dated 18/7/2018 allowed the

said application and dismissed the complaint case.

During pendency of S.T. No.311/2018 learned trial court on 13/07/2018 expressed its view that the charges could not be framed against the

applicant as well as against other persons because respondent No.1 has already submitted a complaint case against the applicant along with other co-

accused. Then respondent No.1 had filed an application under Section 408 of Cr.P.C. before the Sessions Court for transferring of Sessions Case

No.311/2018 from the Court of 8th Additional Sessions Judge which was registered as M.J.C. No.965/2018.

Learned Sessions Court vide order dated 21st August, 2018 allowed the said application and passed the order transferring the trial of Sessions Case

No.311/2018 from the Court of 8th Additional Sessions Judge, Jabalpur to the Court of 13th Additional Sessions Judge, Jabalpur.

The applicant being aggrieved by that order, has filed this petition under Section 482 of Cr.P.C. for quashing of that order on various grounds and in

alternate also prayed that respondent No.1 being a practicing lawyer and by misusing the practice in the District Court, Jabalpur unnecessarily

harassing the applicant as well as respondents No.2 to 5. Thus, on these grounds, he prays to transfer this case under Section 407 of Cr.P.C. to the

another District Court adjoining to Jabalpur.

Respondent No.1 objected this application and supported the impugned order dated 21st August, 2018.

Having heard learned counsel for the parties, perused the impugned order and other documents filed along with this petition.

It is not disputed that respondent No.1 filed a private complaint under Section 200 of Cr.P.C. against the applicant along with other co-accused on

30/05/2014 for the offence punishable under Sections 420, 463, 464, 465, 467, 468, 120-B of IPC and it is also not disputed between the parties that

complaint registered by the Court of JMFC against the applicant and other co-accused vide order dated 07/07/2014 and issued process for appearance

of the applicant as well as other co-accused and that order has been quashed vide order dated 21/11/2014 passed in Criminal Revision No.262/2014

and learned Court of JMFC again proceeded for enquiry in the complaint previously registered as Complaint Case No.7838/2014. It is also not

disputed that during pendency of this complaint, respondent No.1 being a practicing lawyer again submitted a written complaint on 29/2/2016 to the

Superintendent of Police, District Jabalpur for lodging of criminal case against the applicant on the same dispute. On the basis of that written report,

crime No.273/2016 registered at Police Station, Barela, Distt. Jabalpur and after investigation, charge sheet came to be filed against the applicant

along with other co-accused which is pending as Sessions Trial No.311/2018.

Respondent No.1 filed an application under Section 408 of Cr.P.C. for transferring Sessions Trial No.311/2018 pending in the Court of 8th

Additional Sessions Judge, Jabalpur on the ground that learned trial Court on 13/7/2018 before framing the charge against the applicant along with

other co-accused expressed his opinion that charge could not be framed against the applicant as well as other co-accused because complaint case is

pending in the Court for the same dispute. Learned Sessions Court in the impugned order dated 21st August, 2018 called for the comments from the

Presiding Judge of 8th Additional Sessions Court. Learned Presiding Judge of 8th Additional Sessions Court denied all the allegations made in the

application and fairly prayed that the Court is not having any objection if the case is transferred from one Court to another. Learned Sessions Court on

that ground transferred the case from the 8th Additional Sessions Court to 13th Additional Sessions Court which is impugned here.

After perusal of whole documents, it is pertinent to note here that on 17/7/2018 criminal complaint presented by respondent No.1 was pending

before the Court of JMFC and when learned 8th Additional Sessions Court expressed its opinion that since the complaint is pending, no charge can be

framed. Thereafter respondent No.1 submitted an application before the Court of JMFC on 18/7/2018 and on that ground learned Court of JMFC on

18/7/2018 dismissed the complaint on the ground that since charge sheet has been filed against the applicant and other co-accused on the same

dispute, hence, the cognizance cannot be taken in the dispute, thus, the Court dismissed the application. It is clearly reflected that on 13/7/2018

complaint was pending, therefore, learned Presiding Judge of 8th Additional Sessions Court was very much correct in saying on 13/7/2018 that Court

would not proceed to frame charge. It is ample clear that learned Sessions Judge has not considered the facts properly and respondent No.1 being a

practicing lawyer succeeded himself transferring the case from the Court of 8th Additional Sessions Judge without any cogent ground and learned

Sessions Judge adopted the policy of appeasement. In this way, this Court is of the view that the party was indulged in Court hunting process which

should not be protected by the Sessions Court. This Court is of the opinion that justice should not only be done but should manifestly be seen to be

done.

It is pertinent to mention here that in the sessions trial, as per Section 225 and 226 of Cr.P.C., prosecution shall be conducted by the Public

Prosecutor not by respondent No.1 who is a practicing lawyer in the District Court, but, here, respondent No.1 filed an application for transferring the

case under Section 408 of Cr.P.C. before the Sessions Court not by the prosecution, respondent No.1 is only a witness listed in the witnesses list

appended with charge sheet in the Sessions Trial No.311/2018. On the basis of the facts of the present case apprehension of respondent No.1 is not

justified, there was not any good and sufficient ground for transferring the case. In the present case, it seems that learned Sessions Judge misused the

powers envisaged under Section 408 of Cr.P.C., therefore, this Court is of the firm view that there is sufficient ground for invoking the inherent

jurisdiction engrafted under Section 482 of Cr.P.C.

In view of forgoing discussions, this petition is allowed. The impugned order dated 21st August, 2018 passed by learned Sessions Judge is hereby

set aside. The case is still pending before the Court of 8th Additional Sessions Judge, Jabalpur, because this Court has granted interim protection

staying the execution of impugned order. However, so far as prayer under Section 407 of Cr.P.C. is concerned, this Court does not find fit it to

consider this prayer at this earlier stage. If applicant finds any obstructions or any undue influence or any hindrance in the pending trial created by

respondent No.1, the applicant is at liberty to renew that prayer. Trial Court is directed to proceed further in the matter without there being any

influenced by the impugned order or by the order passed by this Court.

Let copy of this order be sent to the trial Court for compliance and necessary action.