ASHOKKUMAR PRABHUDASBHAI MODI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) . In this petition filed under Article 226/227 of the Constitution and under Section 407 of the Code of Criminal Procedure ('the Code' for short), petitioners, who are accused in Sessions Case No. 36 of 1999 for commission of the offence of murder of one Dr. Sonia Modi, punishable under Section 302 read with Section 120B and other sections of the Indian Penal Code and facing trial in the said case before the learned Additional City Sessions Judge (Court No.15), Ahmedabad City, Ahmedabad, apprehending that they would not get fair and impartial criminal trial at the hands of the concerned Additional City Sessions Judge, seek transfer of the said Sessions Case pending for hearing on the file of the learned Additional City Sessions Judge (Court No.15), Ahmedabad City, which is a part-heard case as oral evidence of eight witnesses has been completed, to any other Court within the District or outside the District within Gujarat.

(2.) The birth of this proceeding has a nexus with an incident of murder of Dr. Sonia Modi. In connection with the said offence, FIR came to be registered and during the course of investigation, incriminating evidences were found against the present petitioners and, therefore, they are booked for the commission of offence of murder of Dr. Sonia Modi, punishable under Section 302 read with section 120B and other sections of the IPC. Charge-sheet is filed against the present petitioners and on committal, they are put on trial in Sessions Case No. 36 of 1999. The said case is allotted to learned Additional City Sessions Judge (Court No.15).

(3.) It is seen from the record that one of the present petitioners - Ashokkumar Prabhudas Modi - filed Special Criminal Application No.100 of 2000 before this Court seeking relief of transfer of the said Sessions Case from the Court of the learned Additional City Sessions Judge (Court No.15), to any other Court, and by order dated February 9, 2001, the said petition was permitted to be withdrawn by this Court with a view to enable the petitioners to file transfer application before the City Sessions Court, Ahmedabad and accordingly the present petitioners had preferred Criminal Misc. Application No. 346 of 2000 before the City Sessions Court, Ahmedabad, seeking the relief of transfer of the said Sessions Case from the Court of Additional City Sessions Judge, Court No.15 to any other Court of the same Sessions Division, under Sections 408 and 409 of the Code. The learned City Sessions Judge, Ahmedabad City, vide order dated February 18, 2000 dismissed the said petition by observing that under the provisions of sections 408 and 409 of the Code, a Sessions Judge can transfer a criminal case wherein procedural irregularity against the well settled practice is alleged and is shown as likely to result into prejudice to the accused but the provisions of the said sections do not empower a Sessions Judge to go into the merits of the allegations qua conduct of a judicial officer of concurrent jurisdiction and, therefore, the transfer application before the City Sessions Court was not maintainable and deserved to be dismissed and accordingly it was dismissed. It is this order of dismissal of the said petition which has given rise to the present petition before this Court.