Dismissed

Milind Anant Mobharkar v. the State of Maharashtra and Another

Bombay HC25 Feb 2014APPLN/60/2014

Case brief

AI extract

What is this about?

This order dismissed two criminal applications filed by accused persons appearing as witnesses in a sessions case. They sought to modify a prior transfer order to move the trial from Nashik to Aurangabad instead, citing inconvenience. The court rejected the applications, questioning the applicants' bona fides and lack of locus standi. The request, if granted, would amount to changing the place of

What the court decided

AI extract

Milind Anant Mobharkar Vs the State of… — Civil Procedure and Limitation | Bombay HC (2014)

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Cri.Appln.59.14.odt

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IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD

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CRIMINAL APPLICATION NO. 59 OF 2014

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Suresh Kisanrao Gaikwad

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..APPLICANT

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-VERSUS-

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The State of Maharashtra

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and others.

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..RESPONDENTS

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Mr. S. K. Gaikwad – Party – in – person.

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Mr. R.N. Dhorde, Senior Counsel i/b Mr. V.R. Dhorde with Mr. Pravin G. Patil, Advocate for respondent nos. 3, 5, 6 and 8.

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Mr. N.V. Gaware, Advocate for Respondent Nos. 9, 11 and 12.

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Mr. P.N. Muley, A.P.P. for respondent no.1.

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WITH

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CRIMINAL APPLICATION NO. 60 OF 2014

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Milind S/o Anant Mobharkar

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..APPLICANT

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-VERSUS-

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The State of Maharashtra and others.

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..RESPONDENTS

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Mr. M.A. Mobharkar – Party – in – person.

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Mr. R.N. Dhorde, Senior Counsel i/b Mr. V.R. Dhorde with Mr. Pravin G. Patil, Advocate for respondent no. 4. Mr. N.V. Gaware, Advocate for Respondent Nos. 9, 10, 11 and 12. Mr. P.N. Muley, A.P.P. for respondent no.1.

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CORAM : ABHAY M. THIPSAY, J.

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Dated: February 25, 2014

Cri.Appln.59.14.odt

ORAL ORDER :-

Both these applications can be conveniently disposed of by this common order, as the applicants in both the applications, who are appearing in person, are seeking the same relief :- viz :- ‘modification’ of the order dated 24th December, 2013 passed by this Court in Criminal Application No. 6323/2013, ordering transfer of the Sessions Case no. 357/2011 pending before the Court of Sessions at Ahmednagar to the Court of Sessions at Nashik. The applicants pray that instead of Nashik, the case be transferred to the Sessions Court at Aurangabad and the said order dated 24th December, 2013 be modified to that extent.

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The applications appeared today on board with the office note that some of the respondents are not served. However, Mr. Gaware, the learned counsel, who already appears for respondent nos. 10, 11 and 12 submits that he would appear for all the unserved respondents and would file Vakalatnama by tomorrow evening. Under these circumstances, the applicants insisted that the applications be taken up for hearing forthwith, to avoid inconvenience to them. As such, the applications are heard finally, forthwith.

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The applicants claim to be witnesses in the said

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Cri.Appln.59.14.odt

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Sessions Case. The applicant Milind Mobharkar (Criminal Application no. 60/2014) is a panch witness in the said case, while other applicant Suresh Gaikwad (Criminal Application no. 59/2014), is supposed to be an eye witness to the incident of assault. The applicants submit that going to Nashik and deposing before the trial Court would be inconvenient to them, and that, it would be convenient, if the said Sessions Case is ordered to be transferred to Aurangabad, instead of Nashik.

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The respondent no.13 in Criminal Application no. 60/2014, who is the original First Informant is absent, inspite of service. Nobody appears for him, when called out.

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I have heard Mr. R.N. Dhorde, the learned Senior Advocate i/b. Mr. V.R. Dhorde, the learned counsel for the respondent Nos. 3, 5, 6 and 8. I have heard Mr. N.V. Gaware, the learned counsel for the respondent nos. 9, 11 and 12. I have heard both the applicants, who are present in person.

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Mr. Dhorde submitted that though initially the accused persons i.e. applicants in the Criminal Application no. 6323/2013 had not made any prayer for transfer of the case to any particular place, and though their prayer was merely for a transfer of the said case outside Ahmednagar District, now the accused persons have objection to modify the transfer order, by changing the place of transfer. He submitted that it is because the

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Cri.Appln.59.14.odt

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present applications are not filed bonafide. Mr. Dhorde submitted that apart from this, the Court already having passed an order to transfer the said Sessions Case to Nashik, cannot review the said order.

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I am not impressed by the second contention advanced by the learned counsel, in as much as, according to me merely changing the place, where the case should be transfered, would not amount to any review of the decision. In my opinion, the decision taken by this Court was to transfer the said case out of Ahmednagar Sessions Division and the place to which the case was transferred is only incidental. Therefore, changing of such place, would not amount to reviewing the previous order dated 24.12.2013. However, the question of bonafides of the present applications needs to be seriously considered.

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Mr. Dhorde submitted that the applicants have no locus standi to make the present applications, as their interest in the matter is only as witnesses and is insignificant. It is submitted that the transfer order was passed after giving a full opportunity to the First Informant and the State of being heard. It is submitted that on principle, such applications for transfer coming from witnesses should not be entertained, as there would be a possibility that even hereafter some witnesses would come forward and again seek the place of transfer to be changed.

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Cri.Appln.59.14.odt

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There is a substance in this contention of the learned counsel. I have been taken through the relevant parts of my order dated 24th December, 2013. It is pointed out to me that there is a reference to a communication, received from some persons claiming to be witnesses in the said case, in para 21 of the said order. Mr. Dhorde submitted that this communication is made by the applicants and some other persons. Mr. Dhorde submits that at that time, the present applicants could have very well appeared before this Court and suggested to the Court that if at all Sessions case was to be transferred, it be transferred to Sessions Court at Aurangabad, and not Nashik.

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When the transfer of the said Sessions Case was ordered, the First Informant was asked to suggest the place where the case should be transferred, with the object of ensuring that least inconvenience would be caused to him. He, however, did not specify any such place. The case was directed to be transferred to Nashik, as there was some correspondence from which it was revealed that the First Informant wanted the accused persons to be dealt with under the provisions of M.C.O.C. Act and the case be tried at Nashik, where the Special Court under that Act exists. It was thought that if the First Informant thought it convenient to prosecute the accused at Nashik, in the event of charges of offences punishable under the M.C.O.C. Act being applied to them, there should be no serious difficulty in his going to Nashik for deposing in the case.

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Cri.Appln.59.14.odt

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Today, the applicants submit before me that the case be transferred to a place within the jurisdiction of Aurangabad Bench of this High Court. It is suggested that if not Aurangabad, the case may be transferred to the Court of Sessions at Jalna.

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Since the applicants are appearing in person, I have specifically asked them with respect to the contentions advanced by the learned counsel for the accused persons :- viz :- that if the cases are ordered to be transferred on the basis of request made by one or two witnesses, there would be possibility that some other witnesses would come forward and seek transfer of the said case to any other place in a similar manner. To this, the applicants assured that ‘no such witnesses would come forward’. This confidence felt by the applicants is quite interesting.

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Though obviously, there was no particular reason to direct the transfer of the case at Nashik only, having done so after hearing the First Informant, I do not think it fit to change the place of trial merely because the applicants, who are witnesses in the case, claim that that they would be inconvenienced by the transfer of the case at Nashik. The insistence that the case should be transferred at a place within the jurisdiction of Aurangabad Bench of this High Court, does not seem to be proper. The reason given for such insistence is that ‘if any wrong thing in the trial is noticed, the High Court can be approached expeditiously.’ This

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Cri.Appln.59.14.odt

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reason/contention does not impress me.

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The least that can be said, is that the possibility of the applicants having waited to see outcome of the transfer of case – in collusion with the First Informant - and of their deliberately not having come before this Court at that time, and of their having come forward by these applications, only to somehow have the order passed by this Court changed, cannot be overlooked.

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Considering all the relevant aspects of the matter, I am not inclined to allow the applications.

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The applications are rejected.

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( ABHAY M. THIPSAY, J. )

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sga/-

Milind Anant Mobharkar v. the State of Maharashtra and Another

Case brief

What is this about?

What the court decided

Milind Anant Mobharkar v. the State of Maharashtra and Another

Case brief

What is this about?

What the court decided

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