Bombay High CourtSanjay Babasaheb Deshmukh vs The State Of Maharashtra on 29 April, 2014Author:A.I.S. CheemaBench:A.I.S. Cheemacra290.14
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          IN  THE HIGH COURT OF JUDICATURE AT BOMBAY 

                        BENCH AT AURANGABAD




                                           
               CRIMINAL APPLICATION NO.290 OF 2014




                                          
     Sanjay Babasaheb Deshmukh,
     Age-46 years, Occu:Service,
     Presently under Suspension,
     R/o-Balwant Nagar, Kadlag Mala,




                                
     Gangapur Road, Nashik,
     Dist-Nashik
                                     ...APPLICANT 
                    
            VERSUS             

     The State of Maharashtra,   
                   
     Through Police Inspector,
     Anti Corruption Bureau, Nandurbar,
     Tq. & Dist-Nandurbar.   
                                     ...RESPONDENT
      

                          ...
        Shri N.B. Suryawanshi Advocate h/f. Shri
   



        Amarjeet V. Patil Advocate for  Petitioner.
        Mrs. S.G. Chincholkar, A.P.P. for Respondent. 
                          ...       





                   CORAM:  A.I.S. CHEEMA, J.

                   DATE : 29TH APRIL, 2014
                                         





     ORAL JUDGMENT :1.         Admit. Heard finally with the consent of 

     the   learned   counsel   for   the   parties.   This 

     Application   is   filed   under   Section   407   read   with::: Downloaded on - 05/05/2014 23:45:08 :::cra290.142482  of theCode of  Criminal  Procedure,   1973,  for 




                                                                   
     transfer of the Special Case.2.         Learned   counsel   for   the   Applicant 

     submitted   that   the   Applicant   was   working   as 




                                          
     District   Agriculture   Officer   at   Nandurbar   when 

     charge-sheet came to be filed on the basis of trap 




                                
     laid   under   the   provisions   of   thePrevention   of 
                    
     Corruption   Act,   1988.   Special   Case   No.21   of   2013 
                   
     is   pending   in   the   Court   of   Special   Judge, 

     Nandurbar.   Learned   counsel   for   the   Applicant 

     submitted   that   the   Applicant-Accused,   in   the 
      


     course   of   his   posting   at   Nandurbar,   had   carried 
   



     out   various   raids   and   taken   various   actions 

     against the dealers, distributors and shop owners.According   to   the   learned   counsel   for   Applicant, 

     the Applicant has apprehension if the trial takes 





     place at Nandurbar, such dealers, distributors and 

     shop   owners   will   influence   the   witnesses   and   the 

     Applicant   will   not   get   fair   trial.   The   learned 

     counsel   referred   to   copies   of   documents   at   Page::: Downloaded on - 05/05/2014 23:45:08 :::cra290.143Nos.17 to 112, to show how the Applicant and his 




                                                                   
     team   of   officers   had   taken   various   actions   and 




                                           
     even   there   were   seizures   of   stocks.   Learned 

     counsel   submitted   that   the   Applicant   has   thus 




                                          
     apprehension that the witnesses will be influenced 

     by   the   persons   against   whom   the   Applicant   has 

     taken action during his posting at Nandurbar.3.
                    
                It   is   argued   that   the   Applicant   is 
                   
     suffering   from   spondylosis   and   learned   counsel 

     referred   to   document   at   Exhibit   C   whereby   the 

     Doctor   has   advised   the   Applicant   not   to   sit   for 
      


     long   and   travelling   for   the   Petitioner   is 
   



     difficult.   The   learned   counsel   submitted   that   on 

     these two grounds of apprehension and for medical 





     reasons,   the   Applicant   wants   the   Petition   to   be 

     transferred   from   the   Court   at   Nandurbar   to   the 





     Court at Nashik.4.         The   learned   counsel   submitted   that   the 

     Applicant,   after   the   suspension,   has   been   given::: Downloaded on - 05/05/2014 23:45:08 :::cra290.144his Head Quarter at Nashik and thus for attending 




                                                                   
     the   matter,   he   has   to   travel   from   Nashik   to 




                                           
     Nandurbar.   Reliance   was   placed   on   the   case   ofNahar Singh Yadav and another vs. Union of India, 




                                          
     reported   in   A.I.R.   2011   Supreme   Court   Page   1549.The   learned   counsel   submitted   that   the   Supreme 

     Court laid down some broad factors which could be 




                                
     kept   in   mind   while   considering   application   for 
                    
     transfer   of   the   trial.   Para   24   of   the   Judgment 
                   
     reads as under:-"24.   Thus,   although   no   rigid   and 
          inflexible   rule   or   test   could   be   laid 
   



          down to decide whether or not power underSection   406of   the   Cr.P.C.   should   be 





          exercised,   it   is   manifest   from   a   bare 
          reading   of   sub-sections   (2)   and   (3)   of 
          the   said   Section   and   on   an   analysis   of 
          the decisions of this Court that an order 





          of transfer of trial is not to be passed 
          as a matter of routine or merely because 
          an   interested   party   has   expressed   some 
          apprehension about the proper conduct of 
          a trial. This power has to be exercised::: Downloaded on - 05/05/2014 23:45:08 :::cra290.145cautiously and in exceptional situations, 




                                                              
     where   it   becomes   necessary   to   do   so   to 
     provide credibility to the trial. Some of 




                                      
     the broad factors which could be kept in 
     mind while considering an application for 
     transfer of the trial are:-(i)   when   it   appears   that   the   State 
     machinery   or   prosecution   is   acting   hand 




                           
     in glove with the accused, and there is 
              
     likelihood of miscarriage of justice due 
     to   the   lackadaisical   attitude   of   the 
             
     prosecution,(ii) when there is material to show that 
      


     the accused may influence the prosecution 
   



     witnesses   or   cause   physical  harm   to  the 
     complainant,(iii)   comparative   inconvenience   and 
     hardships   likely   to   be   caused   to   the 
     accused,   the   complainant/the   prosecution 
     and the witnesses, besides the burden to 





     be borne by the State Exchequer in making 
     payment of travelling and other expenses 
     of   the   official   and   non-official 
     witnesses,::: Downloaded on - 05/05/2014 23:45:08 :::cra290.146(iv) a communally surcharged atmosphere, 
          indicating   some   proof   of   inability   of 




                                          
          holding fair and impartial trial because 
          of the accusations made and the nature of 
          the crime committed by the accused; and(v) existence of some material from which 
          it can be inferred that some persons are 




                               
          so   hostile   that  they   are   interfering   or 
                   
          are   likely   to   interfere   either   directly 
          or   indirectly   with   the   course   of 
                  
          justice.".         Learned   counsel   for   the   Applicant 
      


     submitted  that  he is  relying  on factor   (iii)  and(v), in support of his contentions for making the 

     present request for transfer.5.        Learned   A.P.P.   opposed   the   Petition 

     contending   that   all   the   witnesses   are   from 





     Nandurbar and most of the witnesses are Government 

     servants   and   so   there   is   no   basis   for 

     apprehension.   She   submitted   that   the   Applicant::: Downloaded on - 05/05/2014 23:45:08 :::cra290.147just   cannot   presume   that     persons   concerned   will 




                                                                   
     influence and there is no basis for apprehension.Applicant's   inconvenience   compared   with   so   many 

     witnesses being made to travel is not comparable.6.         Having heard the learned counsel for the 

     Applicant   as   well   as   learned   A.P.P.   and 




                                
     considering   the   Judgment   of   the   Hon'ble   Supreme 
                    
     Court   in   the   matter   of   "Nahar   Singh   Yadav   and 
                   
     another   vs.   Union   of   India",   cited   supra,   it   is 

     clear   that   comparative   hardship   is   a   matter   of 

     consideration.   In   the   present   matter,   the 
      


     Applicant   is   claiming   that   he   would   suffer 
   



     hardship   because   of   medical   reason.   However,   if 

     copy of charge sheet, which has been shown at the 





     time   of   arguments,   is   perused,   there   are   28 

     witnesses.   The   witnesses   are   from   Nandurbar   area 





     and asking so many witnesses/persons to travel to 

     Nashik for the convenience of the Applicant, does 

     not appear to be justified. Experience shows as to 

     how   at   times   trials   prolong   and   witnesses   are::: Downloaded on - 05/05/2014 23:45:08 :::cra290.148required to keep coming again and get frustrated.Inconvenience of so many people cannot be ignored 




                                           
     only   because   Applicant   will   be   put   to   some 

     inconvenience. If he is under suspension, time is 




                                          
     at his disposal.7.         As   regards   the   apprehension   that   the 




                                
     Applicant would not get fair trial, there does not 
                    
     appear basis for the same, other than pointing out 
                   
     that   various   actions   were   taken   by   the   Applicant 

     against the distributors, dealers and shop owners.The  Judgment   of the Hon'ble  Supreme  Court  in  the 
      


     case  of "Nahar  Singh  Yadav  and another  vs. Union 
   



     of   India",  cited   supra,   also   mentions   in   factor(v)   that   there   has   to   be   "some   material"   from 





     which it can be inferred that some persons are so 

     hostile that they are interfering or are likely to 





     interfere   either   directly   or   indirectly   with   the 

     course   of   justice.   Merely   because   the   Applicant 

     has taken action against some persons, the same is 

     not   sufficient   to   show   that   there   is   possibility::: Downloaded on - 05/05/2014 23:45:08 :::cra290.149of   the   persons   going   out   to   the   extent   of 




                                                                   
     influencing   the   witnesses   and   taking   the   risk   of 




                                           
     charge   of   tampering   with   evidence.   Again,   as 

     stated, most witnesses are Government Officials. I 




                                          
     do not think that ground is made out for transfer 

     of the Sessions Case.8.           For the reasons stated above, I find that 
                         
     there   is   no   merit   in   the     Criminal   Application.The Criminal Application stands rejected.[A.I.S. CHEEMA, J.] 
      


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