Case Note & Summary
The applicant, Anees Shakil Ahmed Ansari, filed an application under the Criminal Procedure Code seeking transfer of Sessions Case No. 73 of 2015 from Court No. 17 to Court No. 27 in the Bombay Sessions Court. The applicant was facing trial under Sections 43, 66, 66(A)(a) of the Information Technology Act read with Sections 120(b), 302, and 115 of the Indian Penal Code. The applicant contended that the presiding judge of Court No. 17, who had examined 18 prosecution witnesses, was transferred to Court No. 27 on 4 June 2019, and only the Investigating Officer remained to be examined. Relying on an unreported Division Bench judgment of the Bombay High Court in Mahindra Laxman Tawde v. State of Maharashtra, the applicant argued that the case should be transferred to the successor court for disposal. The State opposed the application, submitting that 10 witnesses were still to be examined, not just the Investigating Officer, and that no prejudice would be caused to the applicant if the current presiding officer of Court No. 17 recorded the remaining evidence. The court analyzed the submissions and found that the applicant failed to demonstrate any prejudice that would warrant transfer. The court noted that the mere transfer of a judge is not a ground for transfer of a case unless the accused shows that a fair trial would be jeopardized. The application was dismissed.
Headnote
A) Criminal Procedure - Transfer of Case - Transfer of Presiding Judge - Section 408, 407 CrPC - The applicant sought transfer of Sessions Case No. 73 of 2015 from Court No. 17 to Court No. 27 on the ground that the judge who had examined 18 witnesses was transferred. The court held that mere transfer of a judge does not automatically entitle the accused to transfer of the case; the applicant must demonstrate prejudice. Since the prosecution stated that 10 witnesses remained to be examined and no prejudice was shown, the application was dismissed. (Paras 1-5)
Issue of Consideration
Whether a sessions case should be transferred from one court to another solely because the presiding judge who recorded part of the evidence has been transferred.
Final Decision
The application is dismissed. The court found no merit in the applicant's contention and held that no prejudice was demonstrated to warrant transfer.
Law Points
- Transfer of criminal case
- Transfer of presiding judge
- Prejudice to accused
- Section 408 CrPC
- Section 407 CrPC
Case Details
Criminal Application No. 271 of 2019
Mr. Mateen Shaikh for the Applicant, Mr. N. B. Patil, APP for Respondent – State
Anees Shakil Ahmed Ansari
The Sr. Police Inspector, ATS Police Station Mumbai & The State of Maharashtra
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Nature of Litigation
Criminal application for transfer of a sessions case from one court to another due to transfer of the presiding judge.
Remedy Sought
The applicant sought transfer of Sessions Case No. 73 of 2015 from Court No. 17 to Court No. 27.
Filing Reason
The presiding judge of Court No. 17, who had examined 18 witnesses, was transferred to Court No. 27, and the applicant contended that only the Investigating Officer remained to be examined, warranting transfer.
Previous Decisions
The Sessions Judge, Greater Mumbai, by order dated 28 June 2019, dismissed Misc. Application No. 266 of 2019 in Sessions Case No. 73 of 2015, which the applicant challenges.
Issues
Whether the transfer of a presiding judge who has recorded part of the evidence is a sufficient ground for transfer of the case to the successor court.
Whether the applicant demonstrated any prejudice that would justify transfer under the Criminal Procedure Code.
Submissions/Arguments
Applicant: The judge who examined 18 witnesses was transferred; only the Investigating Officer remains to be examined; relying on Mahindra Laxman Tawde v. State of Maharashtra, the case should be transferred to Court No. 27.
Respondent-State: 10 witnesses are still to be examined, not just the Investigating Officer; no prejudice would be caused if the current presiding officer records the remaining evidence.
Ratio Decidendi
Mere transfer of a presiding judge who has recorded part of the evidence does not automatically entitle the accused to transfer of the case to the successor court. The accused must demonstrate that a fair trial would be prejudiced if the case remains in the same court. In the absence of such prejudice, the application for transfer is not maintainable.
Judgment Excerpts
This application takes an exception to the order dated 28th June 2019 passed by the Sessions Judge, Grater Mumbai in Misc. Application No. 266 of 2019 in Sessions Case No. 73 of 2015.
Learned counsel appearing for the applicant submits that, till 26th April 2019 prosecution has examined 18 witnesses On 04.06.2019 the learned Judge who was presiding over Court No. 17 wherein Sessions Case No. 73 of 2015 is pending, came to be transfer to Court No. 27.
On the other hand, learned APP appearing for the Respondent – State on instructions submits that, yet 10 witnesses are remained to be examined and therefore, the contention of the applicant that only Investigating Officer is remained to be examined is contrary to the record.
Procedural History
The applicant filed Misc. Application No. 266 of 2019 before the Sessions Judge, Greater Mumbai, seeking transfer of Sessions Case No. 73 of 2015 from Court No. 17 to Court No. 27. The Sessions Judge dismissed the application on 28 June 2019. The applicant then filed the present Criminal Application No. 271 of 2019 before the Bombay High Court challenging that order.
Acts & Sections
- Information Technology Act, 2000: 43, 66, 66(A)(a)
- Indian Penal Code, 1860: 120(b), 302, 115
- Code of Criminal Procedure, 1973:
