Ketan Kantilal Seth vs The State Of Gujarat

TRANSFER PETITION (CRIMINAL) Nos. 333­348/2021

Ketan Kantilal Seth …….Petitioner

VERSUS

State of Gujarat & Ors. ……. Respondent(s)

With I.A. No. 134476 of 2021

ORDER

1. With the consent of the parties, these transfer petitions

have been taken up for final hearing. The present petitions have

been filed by petitioner/accused for invoking the power under

Section 406 of Code of Criminal Procedure, 1973 (hereinafter

referred to as ‘CrPC’), seeking transfer of 16 criminal cases

pending against him in four different States to one Court in

Mumbai, where 3 cases are already pending. Following are the Signature Not Verified Digitally signed by GEETA AHUJA Date: 2022.09.09 17:38:52 IST Reason: cases of which transfer are being sought –

1 i. Criminal Case No. 101878/2003 arising out of FIR No.

C.R. No. I­64/2002, dated 30.07.2002 registered at

Police Station Udhana, Surat, Gujarat, pending before

Additional Chief Judicial Magistrate, Surat;

ii. Criminal Case No. 9166/2002 arising out of FIR No.

I.C.R. No. 274/2002, dated 02.07.2002 registered at

Police Station Umra, Surat, Gujarat, pending before

Additional Chief Judicial Magistrate, Surat;

iii. Criminal Case No. 174/2003 arising out of FIR No. C.

R. No. I­226/2002, dated 30.08.2002 registered at

Police Station Rander, Surat, Gujarat, pending before

Additional Chief Judicial Magistrate, Surat;

iv. Criminal Case No. 100521/2003 arising out FIR No.

274/2002, dated 06.08.2002 registered at Police

Station Varachha, Surat, Gujarat, pending before

Additional Chief Judicial Magistrate/Judicial

Magistrate First Class, Surat;

v. Criminal Case No. 2778/2004 arising out of FIR/M.

Case No. 3/2002, dated 16.07.2002 registered at Police

2 Station Gandevi, Navsari, Gujarat, pending before

Additional Chief Judicial Magistrate, Gandevi;

vi. Criminal Case No. 6840/2002 arising out of FIR No. I­

93/2002, dated 18.08.2002 registered at Police Station

Navsai Town, Navsari, Gujarat, pending before Chief

Judicial Magistrate, Navsari;

vii. Criminal Case No. 2121/2002 arising out of FIR No. I­

119/2002, dated 10.06.2002 registered at Police

Station Valsad City, Valsad, Gujarat, pending before

Chief Judicial Magistrate, Valsad;

viii. Criminal Case No. 1578/2006 arising out of FIR/M.

Case No. 29/2002, dated 13.06.2002 registered at

Police Station Vidya Nagar, Anand, Gujarat, pending

before Additional Chief Judicial Magistrate, Anand;

ix. Criminal Case No. 244/2002 arising out of FIR/M.

Case No. 22/2002 (C.R. No. I­226/2002), dated

07.06.2002 registered at Police Station Morbi, Gujarat,

pending before II Additional Chief Judicial Magistrate,

Morbi;

3 x. Criminal Case No. 40449/2016 arising out of FIR No.

280/2002, dated 04.05.2002 registered at Police

Station Connaught Place, New Delhi, pending before

Additional Chief Metropolitan Magistrate, Patiala House

Court, New Delhi;

xi. Criminal Case No. 2034203/2016 arising out of FIR

No. 242/2002, dated 17.06.2002 registered at Police

Station Sarojini Nagar, New Delhi, pending before Chief

Metropolitan Magistrate, Saket Court, New Delhi;

xii. Criminal Case No. ____/2002 arising out of FIR No.

298/2002, dated 22.08.2002 registered at Police

Station Jagatdal, 24 North Paraganas, West Bengal,

pending before Barrackpore Court, Kolkata;

xiii. Criminal Case No. 147/2002 arising out of F.I.R. No.

97/2002, dated 25.04.2002 and C.R. No. 101/2002,

dated 29.04.2002, both registered at Police Station

Ganeshpeth, Nagpur, Maharashtra, pending before

155­II Additional Chief Judicial Magistrate First Class,

Nagpur;

4 xiv. Criminal Case No. 847/2002 arising out of F.I.R. at

C.R. No. 75/2002, dated 15.05.2002 registered at

Police Station City Kotwali, Amravati, Maharashtra,

pending before Chief Judicial Magistrate, Amravati;

xv. Criminal Case No. 498/2002 arising out of F.I.R. at

C.R. No. 102/2002, dated 08.05.2002 registered at

Police Station Pimpiri, Pune, Maharashtra, pending

before Chief Judicial Magistrate, Pimpri, Pune;

xvi. Criminal Case No. 357/2002 arising out of F.I.R. at

C.R. No. 65/2002, dated 15.05.2002 registered at

Police Station Vishrambaug, Pune, Maharashtra,

pending before III Judicial Magistrate First Class,

Shivaji Nagar, Pune.

In fact, the basic object to file these transfer petitions is to get all

cases transferred at one place and may be directed to try

together.

2. In a nutshell, the prosecution story in majority of the cases

revolves around one accused company namely M/s Home Trade

Limited, which is alleged to have engaged in the business of

5 Stock, Securities, Brokering and Trading. The allegations against

the petitioner herein and one Sanjay Hariram Agarwal are that

they were the authorized signatories of the accused company

and while acting in the capacity of Directors of the said accused

company, they entered into several transactions dealing with

government

securities and further sold the said securities without any

authorization. Further, it has also been alleged that the

government securities were not delivered within time and the

money raised thereby has been misappropriated by the accused

persons including the petitioner herein.

3. During the pendency of the instant petitions, application

for intervention (bearing I.A. No. 134476 of 2021) has also been

filed on behalf of one applicant namely; Omprakash Bhaurao

Kamdi, seeking permission to intervene on the grounds of being

a ‘necessary’ and ‘proper’ party as stated in the application.

4. Before adverting to merits of the transfer petitions, the

application seeking intervention is being taken up for disposal.

The intervenor claims to be an agriculturist who is dependent on

6 financial aid provided by Nagpur District Central Cooperative

Bank Limited (hereinafter referred as NDCCB) for his day­to­day

agricultural activities. It is said Chairman of NDCCB, who lodged

an FIR in 2002 against the petitioner and other accused persons

alleging non­delivery of the government securities worth Rs. 125

crores which NDCCB purchased through accused company in

which petitioner and other accused persons were directors. The

petitioner also sought transfer of concerned trial in the instant

transfer petitions.

5. It is a settled principle of law in criminal jurisprudence that

intervention application filed by a third party should not

ordinarily be allowed in criminal cases unless the Court is

satisfied that on the grounds on which the person seeking

intervention is directly or substantially related to the case and

question of law which may affect him adversely; or in the opinion

of Court, joining the intervenor in the case is expedient in public

interest. Having perused the contents of intervention application,

nothing is averred in the application, how non­joining of

applicant may cause prejudice or affect the public interest. The

7 applicant is neither a complainant in any of the cases of which

transfer is being sought, nor he has any direct involvement or

ground of his joining in public interest. The intervenor has no

locus to intervene in the present petition, therefore, I am of the

opinion that the grounds as mentioned by the intervenor are not

proper to allow the application. It is to observe that prayer in

the present petition

is confined to transfer the criminal trials pending before Trial

Courts in different States for trial by one Court in one State and

in such circumstances, the prayer for intervention cannot be

allowed for reasons mentioned above. Consequently, I.A. No.

134476 of 2021 seeking intervention stands dismissed.

6. Reverting to the merits of the transfer petitions, learned

counsel for petitioner has contended that multiple FIRs were

registered against petitioner and other accused persons in

different States having similar set of allegations, which has led

into multiple trials being pending before various Trial Courts in

different States for adjudication. Most of the accused persons in

all FIRs and witnesses thereof are common. However, for the

8 purpose of trial, all the accused as well witnesses have to attend

hearing dates before various Courts leading to delay and huge

expenses. Moreover, most of the transactions pertaining to the

alleged offence have taken place in Mumbai, Maharashtra and as

per the chart supplied by the petitioner, majority of the

witnesses relevant for the purpose of trial are also from Mumbai.

However, the petitioner has prayed the transfer of all cases for

trial by one

Court primarily on the grounds of convenience, expeditious

disposal and no­prejudice may be caused to the defence of the

accused for fair trial and to secure ends of justice.

7. Per contra, the learned counsel for respondent has opposed

the transfer petitions primarily on the ground that the transfer

petitions have been filed belatedly. It has been contended that,

High Court of Bombay vide order dated 24.06.2021 passed in

Criminal Application No. 628/2014, directed the concerned Trial

Court to complete the trial in C.C. No. 147/2002 (i.e. one of the

cases of which transfer is being sought in the instant petitions)

by passing final judgment and order within a maximum period of

9 four months. The proceedings in the said case are already at the

final stage. Hence, the prayer of the petitioner seeking transfer of

cases as mentioned deserves to be dismissed.

8. After having heard both the sides, the primary issue for

consideration before this Court is ‘Whether the criminal cases

pending before different Trial Courts in four States can be

transferred to one Trial Court in one State?; Whether transfer of

case of one of the criminal case which is at the final stage of trial

before concerned Court in Nagpur, can be directed to be

transferred at such belated stage?’

9. To answer the aforesaid questions, first of all it is necessary

to know the underlying intention of Section 406 of CrPC. Section

406 deals with the power of Supreme Court to transfer the

cases. The Court can exercise such power for fair trial and to

secure the ends of justice. The language impliedly left the

transfer of the cases on the discretion of the Court. If the Court

is satisfied that it is imperative to transfer the cases in the

interest of justice or to secure ends of justice, then it may do so.

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10. In the instant case, it is not in dispute that since 2002,

multiple FIRs across four States namely; Gujarat, Maharashtra,

New Delhi and West Bengal have been filed against petitioner

and other accused persons containing broad and common

allegations pertaining to act done in collusion by accused

persons to defraud the complainants and misappropriate the

money raised thereby while dealing/trading in government

securities in the name of accused company M/s Home Trade

Limited. The State in its counter affidavit has stated that during

investigation, the accused

Company was found not to be eligible to deal in transactions

relating to government securities, whereas, petitioner and other

accused person namely Sanjay Hariram Agarwal were acting as

Directors and authorized signatories of accused Company. From

a bare perusal of the facts and FIRs, it is seen that there is

commonality of facts in each FIR and that most of the

transactions have taken place in Mumbai. Further, the FIRs

mainly have petitioner and Sanjay Hariram Agarwal as common

accused persons.

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11. As per the details provided by petitioner in a chart annexed

with petition, out of all the nineteen FIRs registered against

petitioner and other accused persons, one FIR has been

registered in Kolkata, West Bengal; two FIRs are registered in

Delhi; nine FIRs are registered in different districts of Gujarat

and seven FIRs are registered in different districts of

Maharashtra. Furthermore, as stated by petitioner and

unrefuted by respondent State, out of total 689 witnesses in all

nineteen cases pending before respective Trial Courts, 236

witnesses are from Mumbai. It is further not disputed that in

multiple cases, almost 20 years have lapsed and

yet majority of the trials are pending at the initial stage. It

wouldn’t be out of place to mention that primary reason for such

delay is the multiplicity of proceedings alongwith practical

difficulties for the Trial Court to secure the presence of witnesses

as well as accused for concluding the trial.

12. The contention of the State that prejudice will be caused if

the transfer is allowed at such a belated stage when one of the

criminal proceedings is at the final stage is bereft of merit. At

12 this juncture, it is apt to refer order dated 24.06.2021 passed by

High Court of Judicature at Bombay in Criminal Application No.

628/2021 filed by accused Sanjay Hariram Agarwal seeking

transfer of criminal cases pending against him. The same is

reproduced for ready reference as thus:

“……(ii) We direct that the trial in said C.C. No. 147/2002 (Crime No. 101/2002 registered with Ganesh Peth Police Station, Nagpur) be completed by passing final judgment and order within maximum period of four months from today. We make it clear that we are granting maximum four months’ time in view of Covid­19 restrictions……..

(iii) We make it clear that after completion of trial in said C.C. No. 147/2002 (Crime No. 101/2002 registered with Ganesh Peth Police Station, Nagpur) against other accused except the Applicant, the trial against Applicant be commenced by conducting the same expeditiously and preferably on day­to­day basis and the same be completed within a period of four months after commencement of trial against present Applicant.”

As is evident from the aforesaid order, the High Court directed

completion of trial in C.C. No. 147/2002 in a time bound

13 manner against other accused persons except the applicant i.e.,

Sanjay Hariram Agarwal (accused no. 3 in C.C. No. 147/2002).

The High Court further directed that once the trial against other

accused persons is completed, then only trial against applicant

therein shall commence. The High Court effectively split the trial

of other accused persons from trial of Sanjay Hariram Agarwal

and caused serious prejudice. As is gathered from the records

and also stated above, accused Sanjay Hariram Agarwal

alongwith petitioner herein were acting in the capacity of the

Directors of accused company. The person who could have put

the best defence (oral as well as documentary) before Trial Court

where evidence led by prosecution was common and mostly

related to same transaction, was effectively excluded by the

order of High Court. In my considered view, such an approach

taken by High Court is prima­facie amounts to differential

treatment, causing serious prejudice to the right of fair trial of

other accused persons including the petitioner herein.

13. In view of the foregoing discussion, considering the

common nature of allegations raised against the petitioner in all

14 FIRs and criminal proceedings emanating therefrom which are

yet pending before respective Trial Courts in four States, I am of

the opinion that to meet the ends of justice and fair trial, the

transfer petitions deserve to be allowed. Therefore, the instant

transfer petitions are disposed­off with the following directions:–

a) The criminal cases, as specified in para 1 (clause (i) to

(xvi)) of this order shall be transferred from the courts,

where those are pending, to the court of Principal Judge,

Bombay City Civil and Sessions Court, Fort, Mumbai –

400032, Maharashtra;

b) the Principal Judge is at liberty to assign the cases to

any of the Court situated in his jurisdiction to try all

those cases. He is also at liberty to assign some of the

cases to any other courts also, if necessary;

c) it is further directed that the transferor courts shall

immediately transmit the record of concerned cases to

the Principal Judge, Bombay City Civil and Sessions

Court, Fort, Mumbai – 400032, which should reach on

or before 31.10.2022;

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d) all the accused in the concerned cases shall appear

before the Principal Judge, Bombay City Civil and

Sessions Court, Fort, Mumbai on 14.11.2022;

e) on assignment of those cases to the concerned Court(s),

as directed hereinabove, the said Court(s) shall frame the

charges within a period of two months from the date of

appearance, or on securing presence of the accused

persons, if absent; and thereafter the trial be concluded

as expeditiously as possible, not later than two years. It

is needless to observe that the examination of the

witnesses in all cases will be recorded by the Court(s)

separately, thereby it should not cause any prejudice to

any accused.

.….………………………J. (J.K. MAHESHWARI)

New Delhi;

September 9, 2022.

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