advocatemmmohan

My photo

ADVOCATEMMMOHAN -  Practicing both IN CIVIL, CRIMINAL AND FAMILY LAWS,Etc.,

WELCOME TO LEGAL WORLD

WELCOME TO MY LEGAL WORLD - FOR KNOWLEDGE IN LAW & FOR LEGAL OPINIONS - SHARE THIS

Sunday, February 7, 2016

justification for allowing application for transfer from the court where the trial was pending to the court of another learned Additional Sessions Judge.= he could overhear certain conversation between the informant and his son that the trial would be surely taken up for hearing from the next date onwards and all the accused persons would definitely be convicted. As further alleged, the Presiding Officer said something regarding the trial which the accused correlated with the conversation he had overheard between the informant and his son. Under such circumstances, he filed Criminal Miscellaneous Application No. 545 of 2015 under Section 408 CrPC before the Principal Sessions Judge, Kheda for transfer of the sessions case to any other court in the same Sessions Division.=So far as apprehension is concerned, it has to be one which would establish that justice will not be done. In this context, we may profitably refer to a passage from a three-Judge Bench decision in Gurcharan Dass Chadha v. State of Rajasthan[1], wherein it has been held:- “… The law with regard to transfer of cases is well-settled. A case is transferred if there is a reasonable apprehension on the part of a party to a case that justice will not be done. A petitioner is not required to demonstrate that justice will inevitably fail. He is entitled to a transfer if he shows circumstances from which it can be inferred that he entertains an apprehension and that it is reasonable in the circumstances alleged. It is one of the principles of the administration of justice that justice should not only be done but it should be seen to be done. However, a mere allegation that there is apprehension that justice will not be done in a given case does not suffice. The Court has further to see whether the apprehension is reasonable or not. To judge of the reasonableness of the apprehension the state of the mind of the person who entertains the apprehension is no doubt relevant but that is not all. The apprehension must not only be entertained but must appear to the Court to be a reasonable apprehension.”= “… It has also to be remembered that the lower judicial officers mostly work under a charged atmosphere and are constantly under a psychological pressure with all the contestants and their lawyers almost breathing down their necks—more correctly up to their nostrils. They do not have the benefit of a detached atmosphere of the higher courts to think coolly and decide patiently. Every error, however gross it may look, should not, therefore, be attributed to improper motive.”-Thus analysed, we are unable to sustain the order of transfer passed by the High Court. Consequently, the appeals are allowed in part. The finding recorded as regards the jurisdiction of the learned Sessions Judge is sustained, and as far as the direction to the Principal Sessions Judge to transfer the case from the 3rd Additional Sessions Judge to some other court being vulnerable and wholly unsustainable is set aside.

Reportable



                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                   CRIMINAL APPEAL NOS. 1592-1593 of 2015
                (@ S.L.P. (Criminal) Nos. 9374-9375 of 2015)


Usmangani Adambhai Vahora               …Appellant

                                   Versus

State of Gujarat & Anr.                      …Respondents



                               J U D G M E N T


Dipak Misra, J.



      The seminal issue that has emerged for consideration in these  appeals
is whether the High Court in exercise of jurisdiction under Article  227  of
the  Constitution  of  India  is  justified  in  quashing  the  order  dated
14.08.2015 passed by the  Principal  Sessions  Judge,  Kheda  at  Nadiad  in
Criminal  Miscellaneous  Application  No.  545  of  2015  arising  from  the
Sessions Case No. 291 of 2003 instituted for the offences  punishable  under
Sections 147, 148, 149, 364A, 120B, 447,   342  and  506(2)  of  the  Indian
Penal Code (IPC) and further directing the learned Principal Sessions  Judge
to transfer the Sessions Case to any other court of the  learned  Additional
Sessions Judge in the same Sessions Division  from  the  court  of  the  3rd
Additional Sessions Judge, Kheda.

2.    Be it stated at the beginning, the High Court has posed two  questions
– one of which pertains to  exercise  of  power  under  sub-section  (1)  of
Section 408 of the Code of Criminal Procedure, 1973 (CrPC) by  the  Sessions
Judge to transfer a case from one Additional Sessions  Judge  to  any  other
Additional Sessions Judge in his Sessions  Division  after  commencement  of
the trial, and the other, whether  the  case  deserves  to  be  transferred.
Answering the first issue, the High  Court  has  opined  that  the  transfer
petition preferred under Section  408  CrPC  before  the  learned  Principal
Sessions Judge is maintainable. The view expressed  by  the  High  Court  on
this score appears to  be  correct  and  hence,  we  affirm  the  same.  The
principal issue warranting delineation is  the  justification  for  allowing
application for transfer from the court where the trial was pending  to  the
court of another learned Additional Sessions Judge.



3.    The  facts  which  are  essential  to  be  stated  are  that  the  2nd
respondent faced trial for the offences mentioned hereinbefore  in  Sessions
Case No. 291 of 2003.   After examination of 18 prosecution  witnesses,  the
informant preferred an application under Section  319  CrPC  for  arraigning
one Natubhai Maganbhai Edanwala as an accused  in  the  sessions  case.  The
said application was rejected by the learned trial judge  vide  order  dated
18.05.2006. Aggrieved by the aforesaid rejection,  the  informant  preferred
Special Criminal Application No. 1444 of 2006 before the  High  Court  which
vide order dated 02.12.2011 rejected the same.  The said order was  assailed
before this Court in Special Leave Petition (Criminal)  No.  17262  of  2012
which was dismissed on 11.01.2013 with the  observation  that  it  would  be
open to the informant to file an appropriate application under  Section  319
CrPC, if at the end of the examination of all the witnesses,  some  material
is found to connect the person sought to be arraigned as an accused  in  the
alleged crime.  As the factual matrix would  exposit,  the  informant  filed
another application under Section 319 CrPC  after  the  examination  of  the
prosecution witnesses Nos. 19 to 23 and the application  was  allowed.   The
newly arraigned accused preferred Special Criminal Application No.  1731  of
2013 before the High Court challenging the said order, and  the  High  Court
had stayed the same.

4.    As the factual score would undrape on  31.07.2015  when  the  sessions
trial was fixed before the learned 3rd Additional Sessions Judge,  Kheda  at
Nadiad, as alleged, the second respondent was standing in the  parking  area
meant for the four wheelers and at  that  time  he  could  overhear  certain
conversation between the informant and his  son  that  the  trial  would  be
surely taken up for hearing from the next date onwards and all  the  accused
persons would definitely be convicted. As  further  alleged,  the  Presiding
Officer said something regarding the  trial  which  the  accused  correlated
with the conversation he had overheard between the informant  and  his  son.
Under such circumstances, he filed Criminal  Miscellaneous  Application  No.
545 of 2015 under Section 408 CrPC  before  the  Principal  Sessions  Judge,
Kheda for transfer of the sessions case to  any  other  court  in  the  same
Sessions Division.  The learned Principal Sessions  Judges  called  for  the
remarks  of  the  concerned  Presiding  Officer  and,  after   taking   into
consideration the remarks and adverting to the  position  of  law,  rejected
the application. The learned Principal Sessions Judge  while  rejecting  the
application  had  observed  that  once  the  trial  commenced,  he  had   no
jurisdiction to transfer the case in exercise of  the  power  under  Section
408 CrPC. As has been stated earlier, the High Court had unsettled the  said
view and we have no hesitation to say correctly so.

5.    The High Court, as has been indicated earlier,  has  referred  to  the
conversation between the parties and the impression of  the  accused.  After
narrating the same, the High Court has observed that the  accused-petitioner
definitely is in dilemma and whether to term his apprehension as  reasonable
or not, the result  of  the  reaction  of  a  hypersensitive  mind   is  the
question.   Thereafter, the High Court has proceeded  to  observe  that  the
learned trial Judge  had  not  examined  any  witness;  that  all  witnesses
examined so far were  examined  by  his  predecessor  in  office;  that  the
Presiding Officer himself had also not indicated his disinclination to  hear
the matter, and that apart, he had offered quite a stiff resistance  to  the
plea of transfer as the same is revealed from his remarks forwarded  to  the
Principal Sessions Judge.  After so stating, the learned  single  Judge  has
held thus:-

“…I am sure that the present Additional Sessions Judge would have  acted  in
a true sense of a  Judicial  Officer.   But  nevertheless,  to  ensure  that
justice is not only done, but also seems to be  done  and  in  the  peculiar
facts of the case,  I feel that it will  be  appropriate  if  the  Principal
Sessions Judge transfers the case to any other Additional Sessions Judge  in
the same Sessions Division.  I make it abundantly clear  that  the  transfer
shall not be construed as casting any aspersions on the  learned  Additional
Sessions Judge.”

6.    On a careful scrutiny of the order passed by the  High  Court,  it  is
not clear whether the High Court has been convinced  that  the  accused  has
any real  apprehension  or  bias  against  the  trial  judge.  However,  the
observations  of  the  learned  single  Judge,  as  it  seems  to   us,   is
fundamentally based  on  apprehension  and  to  justify  the  same,  he  has
referred to the remarks offered by the learned Additional Sessions Judge  to
the Sessions Judge when explanation was called for. First,  we  shall  refer
to the issue of apprehension.  The apprehension is based  on  some  kind  of
conversation between the informant and  another  that  the  accused  persons
shall be convicted. There is also an assertion that the  trial  judge  is  a
convicting Judge and that is why, the High Court has observed that he is  in
dilemma.
7.    So far as apprehension is concerned, it has  to  be  one  which  would
establish that justice will not be done. In this context, we may  profitably
refer to a passage  from  a                 three-Judge  Bench  decision  in
Gurcharan Dass Chadha v. State of Rajasthan[1], wherein it has been held:-
“… The law with regard to transfer of  cases  is  well-settled.  A  case  is
transferred if there is a reasonable apprehension on the part of a party  to
a case that justice will not be  done.  A  petitioner  is  not  required  to
demonstrate that justice will inevitably fail. He is entitled to a  transfer
if he shows circumstances from which it can be inferred that  he  entertains
an apprehension and that it is reasonable in the circumstances  alleged.  It
is one of the principles of  the  administration  of  justice  that  justice
should not only be done but it should be seen to be done.  However,  a  mere
allegation that there is apprehension that justice will not  be  done  in  a
given case does not suffice. The  Court  has  further  to  see  whether  the
apprehension is reasonable or not. To judge of  the  reasonableness  of  the
apprehension the state  of  the  mind  of  the  person  who  entertains  the
apprehension is no doubt relevant but that  is  not  all.  The  apprehension
must not only  be  entertained  but  must  appear  to  the  Court  to  be  a
reasonable apprehension.”

8.    This Court in Abdul Nazar Madani v. State of T.N.[2] has ruled that:-
“…The apprehension of not getting a fair and impartial inquiry or  trial  is
required to be reasonable and not  imaginary,  based  upon  conjectures  and
surmises. If it appears that the dispensation of  criminal  justice  is  not
possible impartially and objectively and without any bias, before any  court
or even at any place,  the  appropriate  court  may  transfer  the  case  to
another court where it feels that  holding  of  fair  and  proper  trial  is
conducive. No  universal  or  hard-and-fast  rules  can  be  prescribed  for
deciding a transfer petition which has always to be decided on the basis  of
the facts of each case. Convenience of the parties including  the  witnesses
to be produced at the trial is also a relevant  consideration  for  deciding
the transfer petition. The convenience of the parties does  not  necessarily
mean the convenience of the petitioners alone who approached  the  court  on
misconceived notions  of  apprehension.  Convenience  for  the  purposes  of
transfer means the  convenience  of  the  prosecution,  other  accused,  the
witnesses and the larger interest of the society.”

9.    In Captain Amarinder Singh  v.  Parkash  Singh  Badal  and  others[3],
while dealing with an application  for  transfer  petition  preferred  under
Section 406 CrPC, a                  three-Judge Bench has opined  that  for
transfer of a criminal case, there must be a reasonable apprehension on  the
part of the party to a case that justice will not be done. It has also  been
observed therein that mere an allegation that there is an apprehension  that
justice will not be done in a given case alone  does  not  suffice.   It  is
also required on the part of the  Court  to  see  whether  the  apprehension
alleged is reasonable  or  not,  for  the  apprehension  must  not  only  be
entertained but must appear to the Court to be  a  reasonable  apprehension.
In the said context, the Court has held thus:-
“19. Assurance of a fair trial is the first imperative of  the  dispensation
of justice. The purpose of the  criminal  trial  is  to  dispense  fair  and
impartial justice uninfluenced by  extraneous  considerations.  When  it  is
shown that the public confidence  in  the  fairness  of  a  trial  would  be
seriously undermined, the aggrieved party can seek the transfer  of  a  case
within the State under  Section  407  and  anywhere  in  the  country  under
Section 406 CrPC.

20. However, the apprehension of not getting a fair  and  impartial  inquiry
or trial is required to be reasonable  and  not  imaginary.  Free  and  fair
trial is sine qua non of Article 21 of the  Constitution.  If  the  criminal
trial is not free and fair and if it is biased, judicial  fairness  and  the
criminal justice system would be at stake, shaking  the  confidence  of  the
public in the system. The apprehension must appear to  the  court  to  be  a
reasonable one.”

10.   In Lalu Prasad alias Lalu Prasad Yadav v. State of  Jharkhand[4],  the
Court, repelling the submission that because some of the  distantly  related
members were in the midst of the Chief Minister, opined that from  the  said
fact it cannot be presumed that the Presiding Judge would  conclude  against
the  appellant.   From  the  said  decision,  we  think  it  appropriate  to
reproduce the following passage:-
“Independence of judiciary is the basic  feature  of  the  Constitution.  It
demands that a Judge who presides over the trial, the Public Prosecutor  who
presents the case on behalf of the State and  the  lawyer  vis-à-vis  amicus
curiae who represents the accused must  work  together  in  harmony  in  the
public interest of justice uninfluenced by the personality  of  the  accused
or those managing the affairs of the State.  They  must  ensure  that  their
working  does  not  lead  to  creation  of  conflict  between  justice   and
jurisprudence. A person whether  he  is  a  judicial  officer  or  a  Public
Prosecutor or a lawyer  defending  the  accused  should  always  uphold  the
dignity of their high office with a full sense  of  responsibility  and  see
that its value  in  no  circumstance  gets  devalued.  The  public  interest
demands that the trial  should  be  conducted  in  a  fair  manner  and  the
administration of justice would be fair and independent.”



11.   The aforesaid passage,  as  we  perceive,  clearly  lays  emphasis  on
sustenance of majesty of law by all  concerned.   Seeking  transfer  at  the
drop of a hat is inconceivable.   An order of transfer is not to  be  passed
as a matter of routine or merely because an interested party  has  expressed
some apprehension about proper conduct of the trial.  The power  has  to  be
exercised  cautiously  and  in  exceptional  situations,  where  it  becomes
necessary to do so to provide credibility to the trial.  There has to  be  a
real apprehension that there would be miscarriage of justice. [See  :  Nahar
Singh Yadav and another v. Union of India and others[5]].
12.   In the instant case, we are disposed to think that  apprehension  that
has been stated is absolutely mercurial and cannot remotely be stated to  be
reasonable.  The learned single Judge has taken an exception to the  remarks
given by the learned trial judge and also opined  about  non-examination  of
any witness by him.  As far as the first aspect is concerned,  no  exception
can  be  taken  to  it.  The  learned  Sessions  Judge,  while  hearing  the
application for transfer of the case, called  for  remarks  of  the  learned
trial judge, and in such a situation, he is required to  give  a  reply  and
that he has done.  He is not expected to  accept  the  allegations  made  as
regards his conduct and more so while nothing has been brought on record  to
substantiate the same. The High Court could not have deduced that he  should
have declined to conduct the trial.  This kind of  observation  is  absolute
impermissible in law, for there is no acceptable reason on the part  of  the
learned trial judge to show his disinclination. Solely  because  an  accused
has filed an application for transfer, he is not  required  to  express  his
disinclination. He is required under law to do his duty. He has  to  perform
his duty and not to succumb to the pressure put by  the  accused  by  making
callous allegations. He is not expected to show unnecessary  sensitivity  to
such allegations and recuse himself from the  case.   If  this  can  be  the
foundation to transfer a case, it will bring  anarchy  in  the  adjudicatory
process.  The  unscrupulous  litigants  will  indulge  themselves  in  court
haunting.  If they are allowed such room, they  do  not  have  to  face  the
trial before a court in which they do not feel comfortable.  The High  Court
has gravely erred in this regard.  So far as  the  non-examination   of  the
witnesses is concerned, as the factual score  would  uncurtain,  the  matter
had travelled to the High Court  in  revision  assailing  the  order  passed
under Section 319 CrPC.   Be  that  as  it  may,  the  High  Court  has  not
adverted to the issue who was seeking adjournment and what was the  role  of
the learned trial judge.  Grant of adjournment could have  been  dealt  with
by the High Court in a different manner.  It has to be borne in mind that  a
judge who discharges his duty is bound to commit errors. The  same  have  to
be rectified. The accused has never moved the  superior  court  seeking  its
intervention for speedy trial. The High Court has innovated a  new  kind  of
approach to transfer the case.  The High Court should have kept in view  the
principles stated in K.P. Tiwari v.  State  of  M.P.[6]  which  are  to  the
following effect:-

“… It has also to be remembered that  the  lower  judicial  officers  mostly
work under a charged atmosphere and are  constantly  under  a  psychological
pressure with all the contestants and their lawyers  almost  breathing  down
their necks—more correctly up to  their  nostrils.  They  do  not  have  the
benefit of a detached atmosphere of the higher courts to  think  coolly  and
decide patiently. Every error,  however  gross  it  may  look,  should  not,
therefore, be attributed to improper motive.”

13.   Thus analysed, we are unable to sustain the order of  transfer  passed
by the High Court.  Consequently, the appeals  are  allowed  in  part.   The
finding recorded as regards the jurisdiction of the learned  Sessions  Judge
is sustained, and as far as the direction to the  Principal  Sessions  Judge
to transfer the case from the 3rd Additional Sessions Judge  to  some  other
court being vulnerable and wholly unsustainable is set aside.   The  learned
trial judge shall proceed with the trial and dispose of the same within  six
months.

                                         .................................J.
[Dipak Misra]



                                         .................................J.
                                        [Prafulla C. Pant]
NEW DELHI
JANUARY 8, 2016


-----------------------
[1]    AIR 1966 SC 1418
[2]    (2000) 6 SCC 204
[3]    (2009) 6 SCC 260
[4]    (2013) 8 SCC 593
[5]    (2011) 1 SCC 307
[6]    1994 Supp. (1) SCC 540

-----------------------
14


No comments:

Post a Comment

Note: Only a member of this blog may post a comment.