At, High Court of Judicature at Bombay
By, THE HONOURABLE MR. JUSTICE S.S. SHINDE
For the Applicant: Mateen Shaikh, Advocate. For the Respondents: N.B. Patil, APP.
1. 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.
2. The applicant herein who is facing trial under Section 43, 66, 66(A)(a) of the Information Technology Act read with Section 120(b), 302 of 115 of the Indian Penal Code in the Sessions case No. 73 of 2015 which is pending in Court No. 17.
3. 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. It is submitted that, since most of the witnesses have been examined by the earlier presiding officer and only the Investigating Officers is to be examined, it is necessary that the said case be transferred to Court no. 27 from Court No. 17 for disposal according to law. In support of aforesaid contention the learned counsel appearing for the applicant relied upon the unreported judgment of the Division bench of the Bombay High Court (CORAM : B.H. MARLAPALLE & U.D. SALVI, JJ.) in the case of Mahindra Laxman Tawde Vs. The State of Maharashtra and Ors. (Criminal Writ Petition No. 596 of 2011 decided on 23rd June 2011).
4. 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. It is submitted that, no prejudice would be caused to the applicant if the 1. Umesh Malani 3/4 908.APPLN.271.2019.doc present presiding officer of Court No. 17 would record the statement of the remaining witnesses and other evidence brought on record by the prosecution as well as defence. It is submitted that earlier presiding officer of Court No. 17 has been transferred in routine course. It is submitted that said routine transfers are after 2 to 3 years and in case the prayers of the applicant is acceded to, in that case in every pending trial the cases will have to be continued with the same presiding officer even after his transfer. It is submitted that transfers are from one place to another or from one Court to another and therefore, the procedure has taken care that in case trial is not complete, the new presiding officer will start from the stage where the earlier presiding officer has stopped. Therefore, learned APP submits that application may be rejected.
5. It appears that the learned Sessions Judge while rejecting the application of the applicant observed that, all the prosecution witnesses are not yet examined and it would not be proper to entertain the prayer to transfer the case from the Court No. 17 to Court No. 27. As rightly submitted by the learned APP there are routine transfer in every year and in case the prayers for transfer are entertained, the Courts will be overflooded by such requests for transfer of the trial. The procedure is evolved to take care of such situation wherein the trial is not completed. The incoming presiding officer will start the trial from the stage reached in trial by the Umesh Malani 4/4 908.APPLN.271.2019.doc earlier presiding officer and will complete the same. The reliance placed by the counsel appearing for the applicant in the case of Mahindra Laxman Tawde (Supra) is misplaced in the facts of the present case, inasmuch as, in the said case there was prayer for transfer made to
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learned Sessions Judge, and learned Sessions Judge by invoking Section 409 of the Cr.P.C transferred the case. In said fact situation the High Court ruled that the Sessions Court should not have invoked Section 409 of Cr.P.C for transfer of the Sessions Case. In that view of the matter this Court is unable to persuade itself to grant relief to applicant. Hence, Criminal Application stands rejected.