In Absence Of Allegation Of 'Pre-Existing Bias', Power U/S 407 CrPC To Transfer Case Shouldn't Be Invoked: MP High Court

The Madhya Pradesh High Court last week observed that only in exceptional circumstances, where the existence of "bias" or "likelihood of bias" is apparent on the facts and circumstances of the case, the High Court can invoke its discretionary power under Section 407 of CrPC [Power of High Court to transfer cases and appeals].

Further, stressing that Section 407 of Cr.P.C. is an assurance of a fair trial, the Bench of Justice Sheel Nagu and Justice Purushaindra Kumar Kaurav also said that a litigant cannot choose a Bench of his choice.

The case in brief

Essentially, the Bench was dealing with a 407 CrPC Application filed by one Manoj Parmar who sought transfer of a case pending before the Court of Additional Sessions Judge, Astha District Sehore to the Court of Special Judge CBI, Bhopal.

It was his contention that since the matter which is pending against him before the Additional Sessions Judge, Astha District Sehore contains similar allegations as regard another case which is pending against him before Special Judge CBI, Bhopal, therefore, the case be transferred to the CBI Court.

It was argued that both the matters pertain to dishonestly and fraudulently obtaining the loan and since it is difficult for him to pursue both the matters simultaneously and to defend himself at different places, the matter which is pending in District Sehor Court be transferred to CBI Court in Bhopal.

Importantly, it was also the case of the petitioner that one Satyanarayan Vishwakarma, who is the witness in the CBI case, is an accused in the Police case pending at Astha, and thus, he argued that the aforesaid facts will prejudice his rights to defend himself in a fair and impartial manner.

Court's observations 

At the outset, the Court observed that in the instant case, the applicant had mainly stated that the allegation in both the trials are almost the same and, therefore, the trial of both the cases should take place before one Bench.

However, referring to the list of witnesses to be examined before the CBI Court and also before the Court of ASJ, Astha, District Sehore, the Court noted that the witnesses are not common and the witnesses of police case before the Court of ASJ Astha are mostly from that place only. 

In this regard, the Court, observed thus:

"It is well settled that a litigant cannot choose a Bench of his choice. It is only in exceptional circumstances, where the existence of "bias" or "likelihood of bias" when apparent on the facts and circumstances of the case, the High Court can invoke its discretionary power under Section 407 of Cr.P.C. In the absence of an allegation of pre-existing bias, the power of transfer of a case should normally not be invoked."

Further, noting that the trial at Astha Court is at an advanced stage, the Court did not find any legal or valid ground so as to exercise power under Section 407 of Cr.P.C. and in absence thereto, it declined the prayer of the applicant and rejected the instant plea.

Case title - Manoj Parmar v. Union of India and others

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