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CR.MA/9104/2008 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 9104 of 2008
=========================================================
KIRTIPAL
UMEDSINH PARMAR,S/O.LATE UMEDSINH BHAGWAN B. PARMAR - Applicant(s)
Versus
STATE
OF GUJARAT - Respondent(s)
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Appearance :
MR
RAMLUBHAYA CHUGH for Applicant(s) : 1,
Ms
MANISHA LAVKUMAR ADDL.PUBLIC PROSECUTOR for Respondent(s) :
1,
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CORAM
:
HONOURABLE
MR.JUSTICE H.B.ANTANI
Date
: 21/07/2008
ORAL
ORDER
1. Heard.
The learned advocate Mr.R.L.Chugh for the petitioner as well as
learned APP Ms. Manisha Lavkumar for the respondent-State.
2. This
application preferred by the petitioner for transfer of criminal case
No.406 of 1987 from the learned JMFC, Mangrol to the Court of JMFC,
Mandvi, District: Surat under Section 407(2) of the Criminal
Procedure Code. The learned advocate submitted that if the prayer for
transfer is considered and granted then it will be convenient for
both the parties, the witnesses which are permanent of residence of
Mandavi and records which are required in the matter will also be
available in Mandavi. Learned advocate further submitted that
distance between Mandavi to Mangrol is about 40 to 45 Kms. Although
the Bus services available for Mandavi to Mangrole but considering
the time consumed for going from one place to another, the concerned
party cannot reach in time and therefore, the case requires to be
transferred. It is further submitted that applicant is an old man
aged about 76 years and is suffering from heart disease and other
disease which in fact is recorded by the learned Sessions Judge,
Surat in his order dated 20.11.2007 produced at Annexure-5 to the
petition. Considering the aforesaid facts and circumstances of the
case, the prayer as set out in the paragraph No.12 (A) of the
application be granted.
3. The
learned APP representing the State submitted that considering the
reasoning given by the learned Judge in paragraph No. 4 and 5 of the
order passed in Criminal Misc. Application No.1859 of 2007, dated
20.11.2007 no case is made out by the petitioner for transfer of the
case as provided under Section 407(2) of the Criminal Procedure Code
and the application deserves to be rejected.
4. Considering
the averments made in the petition and the submissions canvassed by
the learned counsels of both the sides and on perusal of the
reasoning given by the learned Judge, it is not a fit case to invoke
the proviso under Section 407(2) of Cr.P.C. The reasoning given by
learned Judge is re-produced herein below.
?S4. The
parties are present in person. Both the sides are heard. It appears
that, all the three criminal cases were transferred at the request of
the present applicant, and therefore, it will not be justified to
transfer all the criminal case again to the court of JMFC, Mandavi.
It is true that the applicant is aged person, and as per the
documents produced along with the present application, he is not
keeping good health. It appears that the applicant is suffering from
the heart disease and other disease. But this is not the ground to
transfer back all the criminal case to the Court of JMFC, Mandvi. The
cases are very old. Criminal Case No.406/87 is 20 years old, Criminal
Case No.9/92 is 5 years old and Criminal Case No.706/97 is 10 years
old. It appears that if the cases are transferred back to the Court
of JMFC, Mandavi, then definitely, the trial will be delayed. The
opponents have submitted that the applicant has filed the present
applications with an intention to delay the trial of criminal cases.
Therefore, there is no justification in filing the present
application. Hence, present applications having no merits are liable
to be dismissed.
5. From
Mandavi to Mangrol the applicant is attending the Court since last
two years. Mangrol is not very far from Mandavi, and therefore, the
applicant can easily attend the Court of JMFC,at Mangrol??.
5. The
petitioner in view of the above discussion has not made out a case
for transfer under Section 407(2) of the Criminal Procedure Code.
6. For
the foregoing reason, the petition is liable to be fail and the same
is summarily dismissed.
(H.B.ANTANI,
J.)
ashish//
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