VANRAJSINH BHAISABBHAI JADEJA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The petitioners have invoked Articles 226 and 227 of the Constitution as also the provisions of the Code of Criminal Procedure, 1973 (for short, Sthe Code ) for the relief of transferring Sessions Case Nos.211 of 2000, 185 of 2001 and 27 of 2002 from the Court of learned Additional City Sessions Court No.11 to any other Court of competent jurisdiction. The grounds for making such prayer are based on the allegations and averments inter alia that the orders and attitude of learned Additional Sessions Judge, at the relevant time, of Court No.10, were causing genuine and reasonable apprehension in the minds of the petitioners, who were accused persons in the aforesaid criminal cases, about impartiality and fair treatment and trial before that Court. After entertainment of the petitions and grant of stay against further proceedings in the trial court, some grounds are added by way of amendment and the petitions have been listed from time to time and several interim orders are made including the order calling for Record and Proceedings of the trial court. At one stage, explanation of learned Additional Sessions Judge was called for in view of the grievance that the accused persons, including the petitioners before this Court, were required to mark presence before the Court despite the injunction against further proceedings granted by this Court. The learned Sessions Judge concerned has submitted a detailed explanation with confidential letter dated 03.04.2007, and explained the circumstances under which the trial court was required to mark presence and hold formal proceedings in the trial court.

(2.) Arguing the petitions on merits, learned senior advocate Mr.S.B. Vakil was expressly requested to explain as to how successive interlocutory orders made by the learned Additional Sessions Judge were prejudicial to the interest of the petitioners and inspiring apprehensions about result of the trial. A detailed discussion of those submissions on merits was, however, not required and the Court was expressly requested not to undertake that exercise in view of objection to maintainability of the application based on express provisions of Sub-Section (2) of Section 407 of the Code. The other grievance about learned Additional Public Prosecutor in charge of the cases in the trial court was admittedly not surviving.

(3.) Although Section 407 was not mentioned in the petition, it was fairly conceded that the subject and power of the High Court to transfer a criminal case were squarely covered by the provisions of Section 407 of the Code and, applying the proviso to Sub-Section (2) of Section 407, petitions would not be maintainable in so far as the cases in question were sought to be transfered from one criminal court to another criminal court in the same sessions division, unless an application for such purpose was made to the learned Sessions Judge and rejected by him. Therefore, it was submitted on behalf of the petitioners that the petitions may be disposed only on that ground, without entering into merits of the contentions raised in support of the prayer for transferring the cases. That submission was also endorsed by learned A.P.P. Mr.Dipen Desai.