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CR.MA/778/2008 2/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 778 of 2008
=========================================================
ISMAILBHAI
SAIFUDDIN UJJAINWALA - Applicant(s)
Versus
STATE
OF GUJARAT & 4 - Respondent(s)
=========================================================
Appearance :
MR
AR GUPTA for Applicant(s) : 1,
MR KT DAVE, APP
for Respondent(s) : 1,
MR HARSHIT S TOLIA for Respondent(s) : 2 -
5.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.B.ANTANI
Date
: 14/07/2008
ORAL ORDER
1. This
is an application preferred by the applicant under Sections 407 of
the Code of Criminal Procedure with a prayer to transfer Criminal
Case No. 946 of 2007 pending before the Sessions Court at Bhavnagar
to any other district other than Bhavnagar, preferably at Surat to
secure the ends of justice and to conduct fair trial.
2. It
is submitted by Mr AR Gupta, learned advocate for the applicant that
considering the provisions of Section 407 of the Code of Criminal
Procedure, it is a fit case to transfer the case from Bhavnagar to
Surat. The learned advocate for the applicant placed reliance on the
averments made in para-10 of the application in support of the
submission that respondent Nos.2 to 5 are head strong persons having
connection with anti-social elements and therefore, the applicant and
all his relatives are quite apprehensive and scared of the harm and
injury to their life. It is submitted that even the respondents have
threatened them with dire consequences and therefore, the learned
advocate for the applicant submitted that the Sessions Case pending
before the Sessions Court, Bhavnagar may be transferred to Surat or
at any other district. The learned advocate for the applicant has
placed reliance on the complaint filed vide Annexure-A to the present
case and submitted that as per Annexure-A, the offences are
punishable under Sections 498A, 306, 304B, 302 and 34 of the IPC.
The complaint was given on 14.11.2006. The learned advocate for the
applicant submitted that the concerned police inspector gave an
application to the Judicial Magistrate First Class, Fifth Court,
Bhavnagar vide Annexure-B to delete Sections 302, 304B and 34 and
instead added Sections 306, 498A and 114 of the IPC. Annexure-C is
also with regard to another application given by the police inspector
to the Judicial Magistrate First Class to add Sections 306, 498A and
114 of the IPC. The learned advocate for the applicant submitted
that considering the broad perception, it is a fit case wherein the
case is required to be transferred from Bhavnagar to Surat or at any
other district.
3. Mr
KT Dave, learned Additional Public Prosecutor representing the State
vehemently submitted that considering the ingredients of Section 407
of the Cr.P.C., the applicant has not made out the case for transfer
of the case from Bhavnagar to either Surat or to any other district.
The learned APP submitted that save and except mere averments made in
para-10 of the petition, no other averments are made so as to invoke
the provisions of Section 407 of the Cr.P.C. to transfer the case
from one district to another district. In view of the aforesaid
facts and circumstances and as the averments are not substantiated by
the applicant in para-10, it is a fit case to dismiss the
application.
4. Heard
the learned advocate for the applicant, Mr Gupta and Mr KT Dave,
learned Additional Public Prosecutor for respondent No.1 ? State
and Mr HS Tolia for respondent Nos.2 to 5 at length and in great
detail. I have also perused the averments made in the application
and the FIR produced at Annexure-A as well as the copy of application
given to the learned Magistrate seeking necessary amendments in the
charge. Considering the averments made in the application, more
particularly, in para-10 of the application, wherein it has been
stated that respondent Nos.2 to 5 are head strong persons having
connection with anti-social elements and the applicant and all the
relatives are apprehensive about their nefarious activity. Save and
except the aforesaid contention, nothing is mentioned in the
application which would, in my considered view, warrant interference
by this Court in an application preferred under Section 407 of the
Cr.P.C. The averments made by the applicant requires to be
substantiated considering the provisions of Section 407, more
particularly, sub-section (1). No case is made out by the applicant
so as to invoke the power under Section 407 of the Cr.P.C. For the
foregoing reasons, as the application is bereft of necessary
particulars, the same is liable to be rejected.
5. Hence,
the application is rejected.
Notice
is discharged.
(H.B.Antani,
J.)
mrpandya*
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