GAUTAM DEVJIBHAI RATHOD Vs. STATE OF GUJARAT

JUDGEMENT

(1.) When the Criminal Misc. Application No.7962/2005 has come up for hearing, with the consent of the learned Counsel for the parties, the main Special Criminal Application is taken up for final hearing. The only question which arises for consideration is that whether the transfer of Sessions Case No.99/2002 from the Court of Third Fast Track Court to another Fast Track Court was proper at the instance of the State through District Government Pleader. It appears that on facts so far as the pendency of the Sessions Case No.99/2002 before the Third Fast Track Court is concerned, there is no dispute. It also appears that some of the witnesses were examined and thereafter at the stage of recalling of certain witnesses, the District Government Pleader, Bharuch has submitted an application dated 3.3.2005 praying to the learned Principal Sessions Judge, Bharuch for transfer of the case to another Court. The perusal of the application shows that the ground alleged for transfer is that non-bailable warrants were issued against the District Superintendent of Police, Valsad and other witnesses by the Court and it is stated in the application that as the period of five years has passed, due to some reasons if the witness is not in a position to come, the Court has issued non-bailable warrant against the witness, including the District Superintendent of Police, Valsad, even though it was not demanded by the prosecution and, therefore, it has been stated in the application that there is a breach of the propriety by the Court with the witnesses and, therefore, it has been prayed for the transfer of the case. It appears that the learned Sessions Judge has passed the following order:

(2.) Heard. The matter is to be transferred to the Court of ......(illegible). No reasons whatsoever are stated by the learned Sessions Judge for transfer of the matter, nor any attempt is made to call for the comment from the Court before whom the matter was pending. As such the exercise of the power by the learned Sessions Judge is without stating any reasons whatsoever and without considering the relevant material as none is referred to in the order.

(3.) Further, merely because the coercive process is issued against some of the witnesses is hardly any ground for justifying the transfer of the case from one Sessions Court to another Sessions Court. It needs to be recorded that the Court of law with a view to enforce the presence of any witness may exercise the power. It is also true that in normal circumstances, the Court may first issue summons. Thereafter if the summons is not honoured after service, the Court may issue bailable warrant and if the same is also not respected the Court may also issue non-bailable warrant. But all such aspects are procedural aspects and the learned Judge conducting the trial has to exercise the discretion, keeping in view the sound principles of judicial discipline.