23 March 2022 9:24 AM GMT
The Rajasthan High Court has allowed Salman Khan's transfer petition in the deer hunting case. The petitioner prayed for transfer of the criminal appeals and Arms Act appeal from the Sessions Court, primarily on the ground that they arose from the same judgment and set of facts and evidence, involving several common witnesses and overlapping allegations as in the Leave to appeal filed...
The Rajasthan High Court has allowed Salman Khan's transfer petition in the deer hunting case. The petitioner prayed for transfer of the criminal appeals and Arms Act appeal from the Sessions Court, primarily on the ground that they arose from the same judgment and set of facts and evidence, involving several common witnesses and overlapping allegations as in the Leave to appeal filed by the state in the High Court.
The transfer petition was filed under Sections 402 and 407 of The Criminal Procedure Code, and Rule 113 of The Rajasthan High Court Rules.
Dr. Justice Pushpendra Singh Bhati, observed,
"Resultantly, the present petition is allowed, and accordingly, it is directed that criminal appeal No.18/2018 filed by complainant Punamchand relating to alleged offence under Wild Life (Protection) Act, 1972 and Criminal Appeal No.22/2017 relating to alleged offence under Arms Act, 1956, both pending before the District and Sessions Judge, Jodhpur District shall be transferred to this Hon'ble High Court, to be heard alongwith the Criminal Leave to Appeal No.311/2018 (State of Raj. Vs. Saif Ali Khan & Ors.)."
The court, however, clarified that the acquitted persons, i.e. respondents no. 3 to 7 i.e. Saif Ali Khan, Neelam, Tabu, Sonali Bendre and Dushyant Singh shall not be prejudiced by this order and shall stand protected to the extent of the mandate of the precedent law laid down by the Apex Court in the matter of Ramesh and Ors. Vs. State of Haryana [(2017) 1 SCC 529].
The court relied on its previous decision in Salman Khan Vs. State of Rajasthan [S.B. Criminal Misc. Transfer Petition No.23/2011)] whereby it was laid down the law that although the provision of Sections 402 & 407 of the Cr.P.C. only refers to the revisional jurisdiction but the same analogy has to be applied in criminal appeals. It was also that laid down that when the situation of different appeals against the same judgment or in the same matter arises for consideration, then by virtue of Sections 402 & 407 of Cr.P.C, it has to be directed that all the different appeals arising out of the same judgment should be heard and decided together.
The court opined that any offshoot litigation arising out of a single and common judgment, which may incongruously impact the respective parties, is bound to prejudice some of them, if different forums are adjudicating the same. Thus, in the interest of justice, it will always be safe to presume that a common order/judgment has to be adjudicated from all angles at the same level, added the court.
It was noted by the court that the consolidated incident, i.e. the offences allegedly committed, relating to deer–hunting, by the petitioner, and respondents No. 3 to 7 as claimed by the prosecution, and despite different acts having been attributed to each of them, it would be unfair to all the concerned parties, to have different and possibly divergent opinions from various courts.
Further, the court observed that it is only in these types of cases where it becomes justified to invoke the exclusive jurisdiction of the High Court to transfer the matter from one Court to another, in view of the provisions of Sections 402 and Section 407 of the Cr.P.C., as the Court adjudicating can have a comprehensive picture of the facts while making the necessary determination in regard thereto.
Considering the broader four corners of the litigation, including the version of the prosecution, the court opined that it is just and proper in the interest of justice, and for the general convenience of all the concerned parties, to allow the present transfer petition.
The counsel appearing for the petitioner submitted that this Court, while taking into consideration the analogy provided under Sections 402 & 407 of the Cr.P.C., has ample powers to transfer the multiple litigation ongoing before different Courts, to a single Court, so as to enable a common and effective adjudication thereof, in view of the fact that the complete litigation arises out of the same impugned judgment. He alos submitted that the trial court has arrived at a conclusion, after taking into consideration the relevant facts and circumstances of the entire incident, involving cumulative action and consolidated chain of events.
The counsels appearing on behalf of Tabu-respondent no.5 submitted that though the appeal against conviction is not directly affecting the present respondent, but that, it would certainly have an impact, because it would give strength to the criminal leave to appeal, filed by the State, which is pending before High Court. He added that if a regular criminal appeal is connected with a criminal leave to appeal, the criminal leave to appeal shall gain unwarranted credence. As per him, in that event, the scope of interference in a criminal leave to appeal, which, as per law is very limited, owing to the fact that the same stands on a lesser pedestal than a regular criminal appeal, shall be unnecessarily expanded, to the prejudice of the respondent no. 5.
An FIR dated 02.10.1998 was registered with the Forest Department against Salman Khan and co-accused Saif Ali Khan, Neelam Kothari, Tabassum Hashmi, Sonali Bendre and Dushyant Singh for an alleged incident of deer-hunting on the intervening night of 01.10.1998 and 02.10.1998.
A trial was initiated against the accused u/s 9/51 of the Wild Life Protection Act. The trial court vide judgment dated 05-04-2018 convicted Salman Khan u/s 9/51 of Wild Life Protection Act and sentenced him to simple imprisonment of 5 years with a fine of Rs. 10000/-. The other accused were acquitted of all the charges. An appeal was filed the same day by Salman Khan before the Sessions Court, Jodhpur challenging the judgment and subsequently, on 07.04.2018, the sentence was suspended and bail was granted to him.
Thereafter, the State of Rajasthan preferred an appeal against the said judgment, which is presently pending before the High Court. The complainant had filed an appeal before the Sessions Court, Jodhpur challenging the acquittal of the other accused.
Notably, another FIR dated 15.10.1998 was registered against Salman Khan with the Police Station, Luni Rajasthan under the Arms Act. Salman Khan was acquitted by the Magistrate on 18.01.2017. The State of Rajasthan filed Appeal No. 22 of 2017 before the Sessions Court at Jodhpur challenging the acquittal.
In the present matter, the petitioner sought transfer of the following appeals which were filed and pending before the Sessions Court::
(a) Appeal filed by Salman Khan challenging the Judgment dated April 5, 2018 passed by the Hon'ble Magistrate convicting him and sentencing him to simple imprisonment for 5 years with a fine of Rs. 10,000/- for an offence under Sections 9/51 of The Wild Life Protection Act, and the appeal filed by the complainant arising from the same judgment seeking conviction of the other accused who had been acquitted;
(b) Appeal filed by the State of Rajasthan against Mr. Salman Khan challenging the Judgement dated 18.01.2017 passed by Magistrate in Case No. 68/2011 acquitting Mr. Salman Khan for alleged offences under the Arms Act.
The counsels for the petitioner include DSK Legal Managing Partner, Anand Desai; Partners, Mr. Parag Khandhar and Ms. Chandrima Mitra along-with AOR, Mr. Hasti Mal Saraswat and Ms. Rekha Sankhla. The counsels for respondents include Mr. Anil Joshi GA cum AAG a/w Mr.Gaurav Singh, Mr. Manish Shishodia Sr. Advocate a/w Mr. Jaideep Singh Saluja, Mr. Kishore Kumar Vyas.
Case Title: Salman Khan v. State of Rajasthan
Citation: 2022 LiveLaw (Raj) 106
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