SRI RITISH v. THE STATE OF KARNATAKA

THROUGH THE POLICE INSPECTOR, HAVERI TOWN PS, REP BY STATE PUBLIC PROSECUTOR, OFFICE OF THE AG, HIGH COURT BUILDING, DHARWAD-580011. ANNAPURNA CHINNAPPA DANDAGAL Digitally signed by ANNAPURNA CHINNAPPA DANDAGAL

SRI JAGDISH GUDAPPA MALLIKERI AGE: 42 YEARS, OCC. ADVOCATE, R/O. ASHWINI NAGAR, 1ST CROSS, NEAR SHIVA PARK, HAVERI, DIST. HAVERI-520001. (BY SRI RANGSWAMY R., HCGP FOR R1; SRI SHRIHARSH A. NEELOPANT, ADVOCATE FOR R2) …RESPONDENTS THIS CRIMINAL PETITION IS FILED U/S 407 OF CR.PC., SEEKING TO CALL FOR THE RECORDS IN SC NO. 52/2021 ON THE - 2 - NC: 2024:KHC-D:1129 CRL.P No. 103119 of 2023 FILE OF PRL DIST AND SESSIONS JUDGE, HAVERI AND TO TRANSFER SC NO. 52/2021 ON THE FILE OF PRL DIST AND SESSIONS COURT HAVERI REGISTERED FOR OFFENCES UNDER SECTIONS 34, 302, 363, 201 OF IPC OUT OF HAVERI DISTRICT TO DHARWAD DISTRICT OR ANY OTHER COURTS AS THE HONBLE COURT DEEMS FIT. THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING: ORDER

This petition by accused No.1 and 3 under Section 407 of Cr.P.C., is filed with a prayer to transfer SC No.52/2021 pending before the Court of Principal District and Sessions Judge, Haveri to any other Sessions Court out of Haveri.

Heard the learned counsel for the parties. On the basis of the complaint dated 08.03.2021 filed by CW1-Jagadish, FIR in Crime No.24/2021 was registered by Haveri Town Police Station, Haveri district for the offence punishable under Section 363 of IPC against unknown persons. During the course of investigation accused Nos.1 to 3 were arrested. In the charge sheet, it is alleged that on 07.03.2021 accused Nos.1 and 2 had called the victim Tejas Gouda aged about - 3 - NC: 2024:KHC-D:1129 CRL.P No. 103119 of 2023 11 years 10 months out of his house and they had taken him in a car bearing registration Ko.KA-27-N-2637 with an intention to demand ransom amount from his father CW1. It is alleged in the charge sheet that subsequently, the victim Tejas Gouda was murdered by the accused persons and his dead body was disposed off. After the accused were arrested during the course of investigation, the dead body of the deceased was recovered. The investigation in the case was completed and charge sheet has been filed. The petitioners herein are arraigned as accused Nos.1 and 3 in the charge sheet. The petitioners herein are being tried before the jurisdictional Sessions Court in SC no.52/2021 along with accused No.2 who is being tried in SC No.98/2022. The case is at the stage of hearing before charge. At this stage, this petition is filed.

Learned counsel for the petitioners having reiterated the grounds urged in the petition submits that that CW1 is a practicing advocate at Haveri. Advocates Association, Haveri has taken a decision that no advocate from the said Bar will appear on behalf of the accused in - 4 - NC: 2024:KHC-D:1129 CRL.P No. 103119 of 2023 this case. On 20.04.2023 accused No.2 who was waiting near the Court hall after his appearance in the case, was assaulted by CW1. Therefore, the petitioners apprehend that they may not get fair and impartial trial before the Sessions Court at Haveri. Accordingly, he prays to allow the petition.

Per contra, learned counsel contesting respondents has opposed the petition. He submits that except the apprehension, there is no material to show that the accused are not likely to get fair and impartial trial before the Court at Haveri. There is no material to show that they have filed any complaint either to the police or to the Court in respect of the alleged incident that had taken place on 20.04.2023. Therefore, he prays to dismiss the petition.

It is not in dispute that CW1 who is the father of the deceased is a practicing Advocate at Haveri. The petitioners herein have made specific averments in the petition that the Haveri Bar Association had passed a resolution restraining its members from appearing and - 5 - NC: 2024:KHC-D:1129 CRL.P No. 103119 of 2023 representing the accused before the Court in the present case. It is also averred that, the petitioners are deprived of proper legal assistance and they are constrained to avail services of an advocate from the other district and as a result, they are financially burdened. It is also averred in the petition that on 20.04.2023, accused No.2 who had come to the Court for the purpose of attending the case was assaulted by CW1-within the Court premises. The averments made in the petition is not denied by the contesting respondent no.2 by filing statement of objection. Every accused has a right of fair and impartial trial. If reasonable apprehension is expressed by the accused that they are not likely to get a fair and impartial trial, it is imperative for the Court to transfer the case to some other Court depending upon the convenience of both the parties.

Having regard to the specific averments made in the petition and in the background of the decision taken by the Haveri Bar Association, restraining its members from appearing and representing the accused - 6 - NC: 2024:KHC-D:1129 CRL.P No. 103119 of 2023 before the Court, in the present case, it cannot be said that the apprehension of the accused persons is totally ill founded.

A reading of Section 407 of Cr.P.C. makes it very clear that whenever it is made to appear to the High court - that a fair and impartial inquiry or trial cannot be had in any Criminal Court subordinate thereto, the case can be transferred for trial to some other jurisdictional Court. The Hon’ble Supreme Court in the case of Abdul Nazar Madani Vs. State of T.N. and Another reported in (2000) 6 SCC 204 has observed as follows:-

7. The purpose of the criminal trial is to dispense fair and impartial justice uninfluenced by extraneous considerations. When it is shown that public confidence in the fairness of a trial would be seriously undermined, any party can seek the transfer of a case within the State under Section 407 and anywhere in the country under Section 406 of the Cr. P.C. The apprehension of not getting a fair and impartial inquiry or trial is required to be reasonable and not imaginary based upon conjectures and - 7 - NC: 2024:KHC-D:1129 CRL.P No. 103119 of 2023 surmises. If it appears that the dispensation of criminal justice is not possible impartially and objectively and without any bias, before any Court or even at any place, the appropriate Court may transfer the case to another Court where it feels that holding of fair and proper trial is conducive. No universal or hard and fast rules can be prescribed for deciding a transfer petition which has always to be decided on the basis of the facts of each case.

Under the circumstances, I am of considered view that the petitioners have made out a case for withdrawing SC No.52/2021 pending before the Court of Principal District and Sessions Judge, Haveri and transferring the same to the nearest Sessions Court outside Haveri. Accordingly, the following: ORDER Petition is allowed. SC.No.52/2021 pending before the Court of Principal District and Sessions Judge, Haveri is withdrawn from the said Court and is directed to be placed before the Court of Principal District and Sessions Judge, Dharwad, who shall transfer the same to - 8 - NC: 2024:KHC-D:1129 CRL.P No. 103119 of 2023 any other District and Sessions Judge sitting at Hubli, which is the nearest Court outside Haveri District. Sd/- JUDGE VMB List No.: 1 Sl No.: 15