The discretionary authority of the criminal court under Section 311 of the Criminal Procedure Code and the factors to be considered while considering a transfer petition.

JUDGMENT

(Prayer: Petition under Section 407 of the Criminal Procedure Code praying to withdraw and transfer the case in S.C.No.434 of 2007 on the file of the learned First Additional Sessions Judge, Chennai to any other Sessions Court at Chennai to secure the ends of justice.)

1. This is a petition filed by the petitioner seeking for withdrawal and transfer of the case in S.C.No.434 of 2007, pending on the file of the First Additional Sessions Court, Chennai to any other Sessions Court at Chennai.

2. Heard the learned counsel for the petitioner and the learned Additional Public Prosecutor appearing for the respondent.

3. The petitioner is facing trial before the Court below for offences under Section 452, 395 and 397 of the Indian Penal Code. The prosecution had examined all the witnesses. When the case was at the stage of questioning under Section 313 of the Criminal Procedure Code (for short, the Code), the petitioner filed Crl.M.P.No.25855 of 2023 under Section 311 of the Code to recall P.W.14 for cross examination. This application came to be dismissed by the Court below by an order dated 09.10.2023.

4. According to the petitioner, P.W.14 was examined in his absence and this witness is said to have implicated the petitioner as if the petitioner handed over the gold jewels to him. After having dismissed the application filed by the petitioner to recall P.W.14, the Court below recalled P.W.5 pursuant to the examination of the Investigating Officer after a period of four years. That apart, the Court below also, on its own, examined P.W.16. Therefore, the petitioner contended that the application that was filed by him to recall P.W.14 was dismissed on 09.10.2023 whereas a different yardstick was followed by permitting the recall of two other witnesses. Hence, the petitioner apprehends that he will not get fair justice before the Court below and has sought for the transfer of the case from the file of the First Additional Sessions Court, Chennai to any other Sessions Court within the same division. The petitioner also filed Transfer Crl.M.P.No. 27739 of 2023 before the Principal Sessions Court, Chennai and this application also came to be dismissed by an order dated 18.12.2023. It is under these circumstances, the above petition has been filed before this Court.

5. The main ground that has been urged by the learned counsel for the petitioner is that the application filed the petitioner in Crl.M.P. No.25855 of 2023 to recall P.W.14 for cross examination was dismissed on 09.102023 by the Court below on the ground that it was filed belatedly whereas two other witnesses were recalled belatedly by the Court below in support of the prosecution. According to him, the petitioner apprehends that the Court below predetermined the issue and hence, the petitioner will not get fair justice before the Court below.

6. This Court has carefully considered the submissions of the learned counsel for the petitioner.

7. One vital fact that has to be taken into consideration, which will have a bearing in this case, is with regard to Crl.O.P.No.25661 of 2023 filed by the petitioner before this Court challenging the order dated 09.10.2023 passed by the Court below in Crl.M.P.No.25855 of 2023 in S.C.No.434 of 2007 dismissing his application to recall P.W.14 for cross examination. The said criminal original petition was heard and considered in detail by this Court and by an order dated 16.11.2023, the said criminal original petition was dismissed.

8. The relevant portions in the said order dated 16.11.2023 passed by this Court in Crl.O.P.No.25661 of 2023 are extracted as hereunder:

“5. In the course of hearing this Criminal Original Petition, the Learned Counsel for the petitioner submitted that, the petitioner facing trial for house trespass, robbery and causing hurt. The identity of this petitioner not established by the prosecution through P.W.14, since the petitioner was not present in the Court when the deposition of P.W.14 was recorded. T