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Swami Sadashiva Brahmendra Sar (Nil)     31 March 2009

transfer of trial u/s. 407 Cr.PC

 the complainant is wife living with her parents in district A after being subjected to cruelty and deserted by her husband . matrimonial home is in district B. husband  contracted bygamuous marriege in district C.

 application / FIR  by wife was made to SSP of district A but he transfered the investigation to police of district B. police of district B submitted chargesheet u/s 313, 494, 498A,, 506 IPC and 3/4 DP Act before CJM of district B and now trial is pending before CJM of district B. list of witnesses include maximum number of witnesses from district A.

now the complainant has filed application before high court u/s 407 cr. p.c. for transfer of case to district A .

is there any decision to support the transfer of trial?

what are the  legal provisions governing the transfer of investigation by police authorities in Uttar Pradesh?

pls help and oblige



Learning

 4 Replies

N.K.Assumi (Advocate)     31 March 2009

Dear Dr.tripathi,


                              Please refer to :-


1.Dhyan Investment & trading Co.Ltd vs central Bureau of Investigation & Others. 2001- CRLJ-3952-SC.


2.Abdul Nazar Madani Vs State of Tamil Nadu: (2000) 6 SCC 204.


3.Ms.Maneka Sanjay Gandhi vs Ms.Rani jethmalini: 1979-SCR- 0378-SC.

Swami Sadashiva Brahmendra Sar (Nil)     31 March 2009

thank you dear assumi for citations. i will chek these.

Swami Sadashiva Brahmendra Sar (Nil)     01 April 2009

Dear mr. assumi !


decisions cited by you are not applicable to my case. further, in all these decisions transfer was refused.


i am searching a precedent where case would have been transfered  by high court u/s 407 from  district "B' to district "A" on the application of complainant/victim on the ground that :


(a) FIR/ complaint was made in district "A" ;


(b )district "A"  also  has jurisdiction to try the case as part of offence was committed/ continuing there;


(c) mejority of the witnesses reside in district "A" and


(d) other peculiar grounds viz. complanant (wife) is a rural pardanasin lady, she has suffured paraletic attak and now is phisically handicaped, other witnesses of district "A" are between age of 70 to 98 years, there is none in her father's family to acompany her, her pairokar is her grand father who ia aged about 98 years etc.


regards,


Dr. V.N. Tripathi

Amo (non)     09 April 2012

Dear Dr. V.N. Tripathi,

As per the CrPC 407, its not applicable in your matter its correct because CrPC 407 states that:- 

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 be 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 of 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 Curt 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 a copy of the grounds on which it is made; and no order shall be made on the merits of the applications 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 of 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 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.

 

 

 

That means CrPC 407 can be used only when there apprehension that fair and impartial trail cannot be made out. “The purpose of criminal trial is to dispense fair and impartial justice uninfluenced by extraneous considerations. When it is shown that public confidence in the fairness of a trial would be seriously undermined, any party can seek the transfer of a case within the State under Section 407 and anywhere in the country under Section 406 Cr.P.C. 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 witness 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."


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