Dismissed

Samudrala Gurunadham v. the State of Andhra Pradesh

Andhra Pradesh HC9 Jan 2024TRCRLP/92/2023

Case brief

AI extract

What is this about?

High Court dismissed a transfer criminal petition filed by accusedpersons seeking transfer of a cheque bounce case from Nellore District. The court held that mere apprehension or inconvenience is insufficient. Specific incidents of threat were not substantiated in the police report, and the fact that petitioners attended other local cases negated the plea for transfer.

What did the court decide?

Transfer Criminal Petition No.92 of 2023 dismissed; interim stay vacated; no order as to costs.

Samudrala Gurunadham Vs the State of… — Civil Procedure and Limitation | Andhra Pradesh HC (2024)

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IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

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WEDNESDAY ,THE TENTH DAY OF JANUARY
TWO THOUSAND AND TWENTY FOUR 'C.I
n y

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PRESENT

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THE HONOURABLE SRI JUSTICE BANDARU SYAMSUNDER

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TRANSFER CRIMINAL PETITION NO: 92 OF 2023

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Between:

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Samudrala Gurunadham, S/o. Narasimha Rao, Age; 52 years, R/o. Flat.No.302, Vidyanagar, 3/8, Netaji Road, Guntur.

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Sri Balaji Enterprise's, Rep. by its prop, Samudrala Gurunadham, S/o. Narasimha Rao, Age: 52 years, R/o. Flat.No.302, Vidyanagar, 3/8, Netaji Road, Guntur.

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...Petitioner

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AND

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The State of Andhra Pradesh, Rep. by its Public Prosecutor, High Court of A.P

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Bobba Suresh Reddy, S/o. B.Adeppa Reddy, Age; 37 years, R/o. D.No. 28-06-135, Rajeev Gandhi Nagar, Nellore Town. PSR District.

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...Respondent

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Petition under Section 407 of the C.P.C., Praying that in the circumstances stated in the affidavit filed therewith, the High Court may be passed to withdraw the CC.No.737/2021, on the file Special Mobile Judicial Magistrate of 1st Class Nellore and transfer to any other court situated in outside of Nellore District.

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I.A. NO: 1 OF 2023

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Petition under Section 407 (6) of Cr.P.C praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to Stay in all further proceedings in CC.No.737/2021, on the file Special Mobile Judicial Magistrate 1®' Class Nellore including

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appearance of the petitioners pending disposal of main Tr.CMP No 92 of 2023.'

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Counsel for the Petitioners: Sri. K L N Swamy

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*•>

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Counsel for the Respondent No.1: Public Prosecutor (AP)

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Counsel for the Respondent No.2: Sri. T Janardhan Rao

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The Court made the following Order:

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THE HON'BLE SRI JUSTICE BANDARU SYAMSUNDER

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TRANSFER CRIMINAL PETITION No.92 of 2023

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ORDER;

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I have heard learned counsel for the petitioners, Mr.K.L.N Swamy as well as learned counsel for respondent No.2, Mr.T Janardhan Rao.

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This petition is filed by the petitioners under Section^407of the Criminal Procedure Code (in short "Cr.P.C"), seeking^transfer of C.C.No.737 of 2021 on the file of Special Judicial Magistrate of First Class Mobile Court, Nellore, to any other Court^situatedat outside Nellore District on the ground that R2 lodged a false report against him which is subject matter in CC No.6651^of2021 for the offences punishable under Sections 417, 420, 506 r/w 34 IPC against himself and his wife, then petitioners approached this Court by filing quash petition wherein stay was granted. He submits that R2, filed CC No.737 of 2021 on the file of Special Judicial Magistrate of First Class Mobile Court, Nellore, for the offences punishable under Section 138 of Negotiable^Instrument Act, using blank signed cheque which was taken as security,^who also filed OS No.24 of 2022 and OS No.26 of 22 on the^fileof I

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Additional Senior Civil Judge Court, Nellore against^himselfand his wife, where in those cases, they are attending^theCourtsat Nellore regularly. The main contention of the petitioners is that due to the threat of creditors, he filed IP No.60 of^2020onthe file of Senior Civil Judge Court, Guntur against 41 persons including R2 which is pending. The petitioners submit that they filed CrI.P.No 3526 of 2022 and got stay order in CC^No.6651of 2021 on the file of II Additional Judicial First class Magistrate, Nellore and filed IP No.60 of 2020 on the file of Senior Civil Judge Court, Guntur, but R2 harassing himself and his wife^whenever they attended the Court at Nellore and threatened them to attack, whenever they attend Court at Nellore due to that they also lodged a report before Deputy Superintendent of Police, Superintendent of Police and Deputy Inspector General of Police, Guntur range on 22.07.2023 but no action has been taken by the police providing security to him. It is also the contention of the petitioners that they are not in a position to attend^theCourtin CC No.737 of 2021 unless it is transferred from Nellore to any other District. They pray to allow the petition. 3. R2 filed Counter-affidavit denying the averments in the affidavit of the 1^^ petitioner. It is the contention of R2 that he

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never threatened petitioners whenever they attended^theCourt. He submits that he filed CC No.737 of 2021 before the Special Judicial Magistrate of First Class Mobile Court against the petitioners as they failed to repay the amount due^andthey issued cheque which was bounced and filed OS No.24^of2022 and OS No.26 of 2022 on the file of I Additional Senior Civil Judge Court, Nellore which suit also decreed and he filed Execution Petition for recovery of the amount. He submits^that the petitioners have not attended Court in Cheque bounce^case, due to that Non-Bailable Warrant also issued against^them. It is the contention of R2 that IP No.60 of 2020 was dismissed six (6) months back which fact is suppressed by the petitioners.^R2also stated that other persons also filed cheque bounce^casesbefore the Courts at Nellore vide CC Nos. 39 of 2021, 40 of 2021, 49 of 2021, 153 of 2021 and 155 of 2021, wherein the petitioners^are attending but created the ground that to seek transfer^ofcheque bounce case filed. He prays to dismiss the petition.

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Now, the point that emerges for consideration of this^Court is: -

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"Whether there are any grounds to consider the request of the petitioners to transfer C.C.No.737 of

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2021 on the file of Special Mobile Judicial Magistrate of First Class Court, Nellore to any other Court situated at outside Nellore District ?"

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POINT:-

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Before going to the merits of the case, it would be beneficial to quote Section 407 of Cr.P.C. which reads as under:-

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"407. Power of High Court to transfer cases and appeals:

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(1) Whenever it is made to appear to the High Court-

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(a) that a fair and impartial inquiry or trial cannot be had in any Criminal Court subordinate thereto, or

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(b) that some question of law of unusual difficulty is likely to arise, or

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(c) that an order under this section is required by any provision of this Code, or will tend to the general^convenience of the parties or witnesses, or is expedient for the ends of justice.

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it may order-

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(i) that any offence be inquired into or tried by any^Courtnot qualified under sections 177 to 185 (both inclusive),^butin other respects competent to inquire into or try such offence;

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(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 superiorjurisdiction;

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(Hi) that any particular case be committed for trial to a Court of Session; or

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(iv) that any particular case or appeal be transferred^toand tried before itself

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(2) The High Court may act either on the report of^thelower Court, or on the application of a party interested, or on its own initiative: Provided that no application shall^He 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.

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(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.

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(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 Court may award under sub- section (7).

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(5) Every accused person making such application shall give to the Public Prosecutor notice in writing of the application, together with copy of the grounds on which it is made;^and no order shall be made on of the merits of the application unless at least twenty- four hours have elapsed between^the giving of such notice and the hearing of the application.

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(6) Where the application is for the transfer of a^case or appeal from any subordinate Court, the High Court may,^ifit

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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.

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(7) Where an application for an order under sub- section (1) is dismissed, the High Court may, if it is of opinion^thatthe application was frivolous or vexatious, order the applicant^to pay by way of compensation to any person who has opposed the application such sum not exceeding one thousand rupees as it may consider proper in the circumstances of the^case.

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(8) When the High Court orders under sub- section (1)^thata case be transferred from any Court for trial before itsel.f It shall observe in such trial the same procedure which^that Court would have observed if the case had not been so transferred.

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(9) Nothing in this section shall be deemed to affect any order of Government under section 197."

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It is settled law that mere apprehension that justice may not be done at a particular forum and mere inconvenience of petitioners cannot be a ground for transfer of a case,^theremust be reasonable apprehension not mere apprehension that Trial would be seriously undermine and justice would not be done, if their request to transfer the case is not considered. The Hon'ble

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Apex Court in Afjal Ali Sha @ Abjal Shaukat Sha Vs. State of West Bengal & others\ judgment dated 17.03.2023 while considering the transfer of criminal case has held that the transfer of the cases has to be accepted in exceptional cases, considering the fact that transfers may cast unnecessary aspirations on the State Judiciary and the Prosecution Agency. Wherein it is also discussed the ratio laid down by Hon'ble Apex Court in Nahar Singh Yadav Vs. Union of India^ at para²⁹

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which reads as under:-

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"29. Thus, although no rigid and inflexible rule or test could be laid down to decide whether or not power under Section 406 CrPC should be exercised, it is manifest from a bare reading of subsections (2) and (3) of the said section and on an analysis of the decisions of this Court that an order of transfer of trial is not to be passed as a matter of routine or merely because an interested party has expressed some apprehension about the proper conduct of a trial. This power has to be exercised cautiously and in exceptional situations, where it becomes necessary to do so to provide credibility to the trial. Some of the broad factors which could be kept in

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^2023 Live Law(SC) 268

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^(2011) 1 see 307

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mind while considering an application for transfer of the trial are:

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when it appears that the State machinery or prosecution is acting hand in glove with the accused, and there is likelihood of miscarriage ofjustice due to the lackadaisical attitude of the prosecution;

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(ii) when there ISk material to show that the accused may influence the prosecution witnesses or cause physical harm to the complainant;

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(Hi) comparative ir inconvenience and hardships likely to be caused to the accused, the compiainant/the prosecution and the witnesses, besides the burden to be borne by the State exchequer in making payment of travelling and other expenses of the official and nonofficiai witnesses;

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(iv) a communally surcharged atmosphere, indicating some proof of Inability of holding fair and impartial trial because of the accusationsmade and the nature of the crime committed by the accused; and

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(v) existence of some material from which it can be inferred that some persons are so hostile that they are interfering or are likely to interfere either directly or indirectly with the course ofjustice."

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In the present case, petitioners contending that^whenever they attend the Court in CC No.737 of 2021, R2 along^with his men threatening them, due to that they also lodged a report before the higher police officials. The petitioners filed a copy of report along with the petition. A perusal of copy of report which shows that he has not stated nowhere in the report^that when^he attended the Court, when R2 along with his men tried to attack him. It is not known when and where R2 tried to attack the petitioners, why the petitioners not filed a report before the SHO for alleged attack. As rightly contended by learned counsel for R2, when petitioners are attending the Court at Nellore in cheque bounce cases filed by others, it is not known how it is difficult for them to attend the other Courts at Nellore in C.C.No.737 of 2021. R2 also filed a copy of complaint filed by others against the petitioners for 5 cheque bounce cases, wherein the petitioners are admittedly attending and not sought for transfer of those cases. Learned counsel for the petitioners would submit that there is no threat from the complainants of those cases,^dueto that no petition is filed. When petitioners are attending^theCourts at Nellore, it would also convenient for them to attend the Courts in CC No.737 of 2021 before the Special Judicial Magistrate^of

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First Class Mobile Court, Nellore and as no specific^incidentof alleged attack and threat stated by the petitioners either in the affidavit of the petitioners or in the report sent to the higher police officials, this Court is of an opinion that, there are no grounds to consider the request of the petitioners to transfer C.C.No.737 of 2021 on the file of Special Mobile Judicial Magistrate of First Class Court, Nellore to any other Court situated at outside Nellore District

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