SAXENA, J. - (1.) -
(2.) THIS petition has been filed under Section 482 read with Section 407 (1) Cr.P.C. for recalling this court's order dated 19.9.94, which was corrected vide order dated 22.9.94 passed in S.B. Cr.Misc. Petition No. 584/94 "Rajeev Joshi vs. State", whereby the sessions case arising out of FIR No. 150/91, Police Station, Amba Mata, Udaipur, which was committed by the learned Addl.CJM, S.P.E. Cases, Jaipur, was withdrawn from the file of learned Sessions Judge, Jaipur District and transferred to the file of learned Sessions Judge, Udaipur for trial in accordance with law. Petitioner is the real brother of deceased Smt. Manisha, who was married in February, 1985 to accused non-petitioner Rajeev Joshi & who died on the night intervening 8th and 9th Oct. 1991 due to extensive burn injuries inside the house of her husband situated in Udaipur. She was immediately taken to the hospital, where she is alleged to have made two dying declarations orally one to Dr. Miss Savita and other to a Magiestrate. The dying declaration said to have been made to the Meagistrate could not be completed because of her serious condition. Accused non- petitioner Rajeev Joshi reported the incident to the S.H.O., P.S., Amba Mata, Udaipur alleging that Smt. Manisha had committed suicide by sprinkling kerosene and torching her to fire. Subsequently Crime No! 150/91 Police Station, Amba Mata, Udaipur was registered on the report of petitioner for the offences u/ss. 498A and 304-B IPC, which was initially investigated by the Dy. S.P., Incharge of the Police Station. Thereafter, the investigation was transferred to the Addl. S.P., C.I.D. and S.P., C.I.D., Crime Branch. Ultimately, the petitioner filed S.B. Civil Writ Petition No. 7022/91 in the High Court of Judicature for Rajasthan, Bench at Jaipur and vide order dated 12th Aug. 1992, the said writ petition was allowed and it was directed that investigation of the said case be transferred from the C.I.D., (C.B.) to the C.B.I., and that henceforth the C.B.I. shall investigate the case and proceed further in the matter. After completing investigation, the C.B.I. filed the challan in the court of learned A.C.J.M., S.P.E. Cases, Jaipur, who by his order dated 26.8.94 committed the case to the learned Sessions Judge, Jaipur District for the offence u/s. 304 B IPC. On 8.9.94, accused Rajeev Joshi submitted a petition u/s. 482 Cr.P.C. read with Sec. 407 Cr.P.C. against the order dated 26.8.94 passed by the learned A.C.J.M., S.P.E. Cases, Jaipur, in this court at Jodhpur, which was allowed by order dated 19.9.94. (2-A). I have heard Mr. D.S. Shishodia, learned counsel for the petitioner, Mr. K.L. Thakur, learned Public Prosecutor, Mr. M.L. Garg, learned counsel appearing for the accused non-petitioner No.2 Rajeev Joshi and Mr. Kamal Dave standing counsel for the C.B.I. at length and carefully perused the relevant record. Mr. Shishodia has strenuously canvassed that the accused non- petitioner No.2 did not implead the petitioner as a party in his S.B. Cr. Misc. Petition No. 584/94 and suppressed material facts about the rejection of his bail applications u/ss. 438 and 439 Cr.P.C. by the learned Sessions Judge, Jaipur District and the High Court Bench at Jaipur and the fact that on the writ petition filed by the petitioner in the High Court of Judicature for Rajasthan at Jaipur Bench, the investigation of the case was entrusted to the C.B.I. and, as such, no opportunity of hearing was afforded to him, which has resulted in violation of the principles of natural justice. His another limb of the argument is that the State Government under Sec. 11 (1) (A) Cr.P.C. by its notification dated 22.8.78 has established a court of A.C.J.M., Jaipur District for conducting enquiry and trial in respect of the cases investigated by the Delhi Special Police Establishment having jurisdiction for whole of the Rajasthan and that under Sec. 14(3) of the Code, he did not commit any illegality in committing the case to the court of learned Sessions Judge, Jaipur District. Mr. Shishodia has relied on the cases of State of Raj. vs. Ramkishan alias Sufan (1) and Mohd. Mahir vs. State of U.P. (2), wherein interpreting the provisions of Sec. 14(3) of the Code, it has been held that where the local jurisdiction of a Magistrate extends to an area beyond the district in which he ordinarily holds court, any reference in the Criminal Procedure Code to the Sessions Court shall throughout the area within his local jurisdiction be construed as a reference to that court of Session, which is exercising jurisdiction in relation to the said district, where such Magistrate ordinarily holds court. According to him, since ACJM, SPE Cases, Jaipur exercises jurisdiction for whole of the Rajasthan in respect of the cases investigated by the C.B.I, under the Delhi Special Police Establishment Act, he could not have committed the case to the court of learned Sessions Judge. He has urged that the S.B. Cr. Misc. Petition No. 584/94 filed by accused Rajeev Joshi u/s. 407 Cr.P.C. was legally not maintainable because no affidavit in support of the said petition was filed and that the provisions of Sec. 407 (3) Cr.P.C. being mandatory, his prayer for transfer of the case was legally not competent and, as such, the impugned order deserves to be recalled. For this, he has placed reliance on the cases of Suresh Kumar vs. State & Ors. (3) and Mahindra Kumar vs. The State of Raj. and Anr. (4), wherein it has been held that the provisions of Sec. 407 (3) Cr.P.C. are mandatory and that every application for an order for transfer of a case, except when the applicant is the Advocate General of the State, be supported by an affidavit or affirmation and that such application without an affidavit is liable to be dismissed for non-compliance. He has urged that as per calendar of witnesses, the prosecution has cited 115 witnesses and that out of them, 59 witnesses are residents of Jaipur or nearby places, whereas only 46 witnesses are the residents of Udaipur and, as such, it is not in the general convenience of the parties and the witnesses if the Sessions case is to be tried by the learned Sessions Judge, Udaipur. He has submitted that after the impugned order was passed, Ramesh Chandra Sharma, elder brother of the father of deceased, received an unsigned inland letter from Udaipur possibly from the accused side threatening that he and his brother should not go to Udaipur else they will not be able to return back and that material witnesses including Dr. (Mrs.) Savita has also received continuous threats not to appear before the Sessions Judge, Udaipur else there would be great risk to their life, liberty and honour and, as such, the impugned order be recalled and the Sessions Case be re-transferred/retained in the court of learned Sessions Judge, Jaipur District, Jaipur. Mr. K.L. Thakur, learned Public Prosecutor and Mr. Kamal Dave, Standing Counsel for the C.B.I., have not opposed this petition.
(3.) ON the other hand, Mr. M.L. Garg, learned counsel for the accused non-petitioner No.2, has seriously contested this petition and asserted that there was no suppression of material facts in the petition filed by him; that since it was a State case and the investigation was conducted by the C.B.I., petitioner Radhesh Chandra was not a necessary party in that petition nor he has a locus standi to file this petition for recalling the impugned order, which was passed in the presence of the learned Public Prosecutor and the learned Standing counsel for the C.B.I. after hearing them. Mr. Garg has submitted that in State of Rajasthan vs. Babu Khan and Ors. D.B. Criminal Reference No. 1/1981 and Bharat Singh vs. State of Raj., the D.B. Criminal Revision No. 5/1980 the D.B. of this court at Jaipur Bench vide order dated 15.2.84, after interpreting the provisions of Section 14(3) and 177 Cr.P.C. has held that on account of use of the words "unless context otherwise requires" appearing in Sec. 14 (3) Cr.P.C, where the local jurisdiction of a Magistrate appointed under Section 11 extends to an area beyond the district in which he ordinarily holds the court, any reference in this Code to the court of Session, shall, in relation to such Magistrate, throughout the area within his local jurisdiction, be construed as a reference to the court of Session within whose local jurisdiction, the offence was committed. Thus, Ramkishan's case (supra) is no more a good law and this principle of law has been consistently followed by this court in Ram Niranjan vs. State Road Transport Corporation (5) and Ghanshyam Acharya vs. State of Rajasthan (6). Mr. Garg has asserted that petitioner has no locus standi to file this petition and it was on Rajeev Joshi's report that inquiry u/s. 174 Cr.P.C. was conducted; that inland letter Annex. 1 is a manufactured letter; that no threats were ever given to any prosecution witness by the accused side and that such an allegation is quite vague, bald and shorn of material particulars. He has submitted that accused Rajeev Joshi had submitted his petition u/s. 482 read with 407 Cr.P.C. and, therefore, for want of the affidavit, his petition was neither legally incompetent nor was liable to be rejected. ;