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IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR
Ramesh Sinha, J.
Shubham Karosia, S/o Santosh Karosia - Petitioner
Versus
State of Chhattisgarh through P.S. – Sarkanda - Respondent
TPCR No.2 of 2024
Decided On : 01-02-2024
Transfer - Special Criminal Case (POCSO Act) - Section 407 of the CrPC - [Section 407] - The court discussed the provisions of Section 407 of the CrPC, which allows for the transfer of cases and appeals. The court emphasized that a fair and impartial inquiry or trial, a question of law of unusual difficulty, or the general convenience of the parties or witnesses are necessary grounds for transfer. The court also cited several Supreme Court judgments to highlight the importance of reasonable apprehension and the need for exceptional situations to justify a transfer.
Fact of the Case:
The petitioner filed a petition under Section 407 of the CrPC for the transfer of a Special Criminal Case (POCSO Act) pending before the Special Judge (POCSO), IInd Fast Track Special Court, Bilaspur to another Court of the District Court, Bilaspur. The petitioner claimed that the victim had submitted an affidavit and expressed a desire to live with the accused, alleging pressure from her parents to testify against the accused.
Finding of the Court:
The court found that the transfer petition lacked reasonable apprehension and did not present grounds justifying the transfer of the case. It emphasized the need for exceptional situations and reasonable apprehension to warrant a transfer under Section 407 of the CrPC.
Issues: The main issue was whether the transfer of the Special Criminal Case (POCSO Act) to another court was justified based on the petitioner's claims of pressure on the victim and the rejection of the application under Section 311 of the CrPC.
Ratio Decidendi: The court emphasized the importance of reasonable apprehension and exceptional situations for justifying a transfer under Section 407 of the CrPC. It cited Supreme Court judgments to highlight the need for concrete material and the demoralizing effect of transfers ordered merely on the say-so of a party.
Final Decision: The transfer petition was dismissed as the court found no reasonable apprehension or exceptional situation warranting the transfer of the case.
ORDER :
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
The main legal point established in the judgment is the requirement of a reasonable apprehension for transfer under Section 407 of the CrPC, as emphasized by relevant case law.
The main legal point established in the judgment is the distinction between transfer of investigation and transfer of a proceeding at the stage of investigation, and the exercise of inherent powers u....
Point of Law : 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 t....
The court established that a mere allegation of bias or apprehension of injustice is insufficient for transferring a case; there must be reasonable and substantiated grounds for such a request.
A transfer of a criminal case under Section 407 of the CrPC requires a demonstrable and reasonable apprehension of injustice, which must be substantiated by concrete evidence rather than mere specula....
Point of Law : 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 t....
Allegations of bias against a judicial officer require substantial proof; mere suspicion is insufficient to justify case transfer under Section 447 of the BNSS.
The apprehension of not getting a fair and impartial trial must be reasonable and not imaginary.
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