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2008 Supreme(Bom) 401
IN THE HIGH COURT OF BOMBAY
SWATANTER KUMAR, C.J. & J.P. DEVADHAR , J.
Damodar s/o Jagannath Lokhande & anr. -...Applicants
Versus
Central Bureau of Investigation & Ors. - ...Respondents
MISC. APPLICATION NO. 390 OF 2007 IN CRIMINAL WRIT PETITION NO. 1278 OF 2007.
Decided on : Deserved On : February 07, 2008 & March 13,, 2008
Mr. S.B. Talekar with Mr. J.G. Reddy for the applicants.
Mr. Gopal Subramaniam, Senior Advocate, with Mr. D.N. Salvi and
Ms. Revathi Mohite for the CBI.
Mr. A.H. Ponda, Senior Advocate, instructed by Mr. P.G. Sabnis for the petitioner in Writ Petition No. 1278 of 2007.
Headnote:Bombay High Court (Appellate Side) Rules, 1960 - Chapter XXXI, Rule 2-Transfer order-Propriety of.-In this case, the order of transfer was already passed by the concerned Bench at Aurangabad on 1st October, 2007 and that order was passed in presence of the parties and after hearing them. This order of the Court has not been questioned. Admittedly, no review application has been filed against the order nor the same was assailed in appeal before the Supreme Court. In these circumstances, that order has already attained finality.
Criminal Procedure Code, 1973 - Section 407-Bombay High Court (Appellate Side) Rules, 1960-Transfer of case-Power of High Court-High Court empowered to transfer cases-Power of transfer from principal seat to other branches and vice-versa vested by Rules of 1960-Discretionary power of transfer of cases under Rule can be exercised by Chief Justice.-A bare reading of the rule indicates that the discretionary power of transfer of the cases can be exercised by the Chief Justice.
Another fallacy in the argument advanced by the counsel appearing on behalf of the applicants is that the cases are being instituted for the first time. The question is not of institution of cases but is of transfer of the cases already instituted and entertained by the Courts of competent jurisdiction. Aurangabad Bench had entertained both the writ petitions i.e. Criminal Writ Petition Nos. 646 of 2005 and 578 of 2007; Admittedly, in Criminal Writ Petition No. 1278 of 2007, a prayer was made that the C.B.I. be directed to file status report in the case and continue to file status report from time to time. Admittedly, C.B.I. has no office at Aurangabad and its investigations are being conducted through Bombay where the C.B.I. admittedly has an office. The Solicitor General appearing for the C.B.I. has clearly stated that the investigation had effectively progressed and the chargesheet would be filed very shortly, may be with the leave of the Court to file supplementary charge-sheet did accordance with the provisions of Section 173 of the Criminal Procedure Code. Once the Courts have exercised judicial discretion and have directed the matters to be heard at Principal Seat, Court sees no existence of compelling circumstances either in equity or in law which would justify retransfer of these cases to the Bench at Aurangabad. Even if the provisions of the Criminal Procedure Code were to be strictly applied to the proceedings filed before the Aurangabad Bench, still then in accordance with the provisions of Section 407 of the Code, the High Court would have the power to transfer the cases. The application is accordingly dismissed.
Criminal Procedure Code, 1973 - Section 407-Bombay High Court (Appellate Side) Rules, 1960, Chapter XXXI, Rule 1-Discretionary power of transfer of case-Exercise of.-The discretionary power of transfer of the cases can be exercised by the Chief Justice.
Even if the provisions of the Criminal Procedure Code were to be strictly applied to the proceedings filed before the Aurangabad Bench, still then in accordance with the provisions of Section 407 of the Code, the High Court would have the power to transfer the cases.
Act Referred
CRIMINAL PROCEDURE CODE : S.407
Swatanter Kumar, C.J.:
Criminal Miscellaneous Application No. 390 of 2007 has been filed by the applicants praying for transfer of Criminal Writ Petition Nos. 1278 of 2007 and 1877 of 2007 from Principal Seat at Mumbai to Aurangabad Bench for the reasons stated in that application.
2. In order to examine the merit or otherwise of this application, reference to necessary facts can be made at the outset. One Smt. Rajani Vishram Patil had filed Criminal Writ Petition No. 646 of 2005 praying that a direction be issued for transferring the investigation of Crime No. 242 of 2005 registered at Zilla Peth Police Station, Jalgaon, against the four accused to the Central Bureau of Investigation as the investigation was not being conducted in accordance with law. According to her, her husband, Prof. V.G. Patil, who was the President of the District Congreee (I) Committee, Jalgaon, was assaulted by two persons. The incident was noticed by
witnesses and they escaped on a motor-cycle. The offence was registered under Sections 302 read with 34, 120 (B) of the Indian Penal Code and Section 3 (25) of the Arms Act. It was found that four
persons were involved in this case. The investigation was transferred
to State C.I.D. on 30th September, 2005. Charge-sheet was submitted to the Court of Judicial Magistrate (First Class) against Raju Mali, Raju Sonavane, Damodhar Lokhande and Leeladhar Narkhede on 22nd December, 2005. Later on Damodhar Lokhande and Leeladhar Narkhede approached the High Court praying for quashing of the first information report by filing Writ Petition Nos. 3331 and 298 of 2005 which were allowed. Special Leave Petitions against the order was dismissed by the Supreme Court, but in the meanwhile the case was committed to the Court of Sessions and was numbered as Sessions Case No. 8 of 2006.When the investigation was pending, the State moved an application before the Sessions Court for conducting narco analysis, brain mapping and lie detector tests on the accused. This writ petition came to be disposed of by the order of the Division Bench of the Aurangabad Bench on 23rd February, 2007. The relevant part of the order reads as under:
"10. We have scrutinized entire record with the help of counsel for both sides. Considering the chequered history of the present case, the development which have taken place after filing of the charge-sheet, issues involved and the reference to alleged conspiracy by the
influential political leaders of the region, in our opinion, the decision of the State Government that the investigation of this case should be conducted by Central Bureau of Investigation is justified. Having regard to the importance of issues involved and the alleged complicity of the influential political leaders referred to in paragraph Nos. 3 and 4 of the petition, in our considered opinion, this is a fit case where the
investigation should be conducted by Central Bureau of Investigation.
11. In the result, writ petition is allowed in terms of prayer clause (B) and (C). Prayer clause (D) does not survive since the investigation is transferred to respondent No.7 – Central Bureau of Investigation. Appropriate steps be taken by the concerned authority for implementation of this order at the earliest. "
3. The petitioner in Criminal Writ Petition No. 646 of 2005 filed another Criminal Writ Petition No. 1278 of 2007 in the principal seat at Bombay. In this writ petition, a prayer was made that the Central Bureau of Investigation should be directed to file status report in the case and continue to file status report from time to time. It was also prayed that the Court should monitor and supervise the further investigation as Raju Mali who was to give another confession to the C. B. I. died in suspicious circumstances and if the investigation was not overseen by the Court, it would suffer great prejudice. Notice on this petition was issued and vide order dated 10th September, 2007, the statement of the Solicitor General appearing for
