Ketan Kantilal Seth VERSUS State of Gujarat & Ors. - Supreme Court Case
Ketan Kantilal Seth VERSUS State of Gujarat & Ors. - Supreme Court Case
Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले
NONREPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
TRANSFER PETITION (CRIMINAL) Nos. 333348/2021
Ketan Kantilal Seth …….Petitioner
VERSUS
State of Gujarat & Ors. ……. Respondent(s)
With I.A. No. 134476 of 2021
O R D E R
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
cases of which transfer are being sought –
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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
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Station Gandevi, Navsari, Gujarat, pending before
Additional Chief Judicial Magistrate, Gandevi;
vi. Criminal Case No. 6840/2002 arising out of FIR No. I93/2002, 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. I119/2002, 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;
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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;
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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
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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
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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
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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
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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
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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
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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
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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
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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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