Shamsher Rai v. State Of U. P. — 1982 DIGILAW 839 (ALL)

JUDGMENT Gopi Nath, J. 1. THIS is a second application for transfer filed by the complainant for the transfer of Sessions Trial No. 522 of 1980 (State v. Rang Bahadur and others) pending in the court of Sri S. D. N. Singh, Sessions Judge, Allahabad, to some other court of competent jurisdiction in the district. 2. THE first transfer application was made on two grounds: One, that one Sri T. N. Singh, SI Police Lines, Allahabad, was friendly with the Sessions Judge, and the former being a relation of one of the accused viz. Ravi Deo Narain Pandey, was interested in securing his acquittal in the case and was accordingly likely to influence the Judge. THE second, that the Sessions Judge had not recorded the statement of accused Ravi Deo Narain Pandey impartially. Both these ground were found not to be made out, and the application was rejected by an order dated 28-4-1982 with the observation that no case for transfer had been made out at that stage. Thereafter the trial proceeded, witnesses were examined and arguments were heard and the case has now been posted for delivery of judgment which has to be done expeditiously as the learned Judge is retiring towards the end of this month. It may be observed that the applicant had engaged Sri V. C. Tewari, counsel of eminence on the criminal side in the District Court to conduct the case on his behalf. Sri Tewari conducted it and has finally argued the case on behalf of the complainant, besides the Government counsel who conducted the prosecution. A this stage when the entire proceedings are over this transfer application has beent moved in the following circumstances. 3. SRI Vishwa Nath Pratap Singh, Ex-Chief Minister of the State, resigned from his office towards the end of June, 1982, and the instant transfer application was filed on 2-7-1982 on the allegation that accused Ravi Deo Narain Pandey was close to the ex-Chief Minister and he accordingly was interested in helping the accused in the sessions trial. Closeness of the accused with the Ex-Chief Minister was stated in para 6 of the transfer application. The allegation was sworn in the supporting affidavit on the basis of record. The record, the learned counsel for the applicant pointed out was a CID Report dated 18-1-1981 (Annexure no. 1 to th transfer application). Closeness of the accused with the Ex-Chief Minister was stated in para 6 of the transfer application. The allegation was sworn in the supporting affidavit on the basis of record. The record, the learned counsel for the applicant pointed out was a CID Report dated 18-1-1981 (Annexure no. 1 to th transfer application). Para 28 of the report was referred to establish the closeness of the Ex-Chief Minister with accused Ravi Deo Narain Pandey. Para 28 of the report (so far as material) reads : "SRI Ravi Deo Narain ke SRI Rewatli Raman Singh Bhoot Poorwa Vidyut Mantri Uttar Pradesh Shasan se rajnaitik sambandhon ke bare men jaanch kee gayee to SRI Fateh Bahadur Singh Mahamantri Block Congress Committee se gyat hua ki Ravi Deo Narain ne gat lok Sabha ke Chunav men Congress (I) ka Prachar kiya aur we SRI Vishwa Nath Pratap Singh Vartman Mukhya Mantri Mahodaya Uttar Pradesh ke chunav prachar men salagana rahe the........." 4. PARAGRAPH 28 refers to an information furnished by Sri Fateh Bahadur Singh to the investigating agency that accused Ravi Deo Narain was associated in the election compaign of Sri Vishwa Nath Pratap Singh. The report does not give any finding as to the actual participation or the part played, if any, by Ravi Deo Narain Pandey in the election compaign. It only refers to the information conveyed by Sri Fateh Bahadur Singh. The status of Ravi Deo Narain Pandey in the election or the role played by him or the degree of initimacy between Sri Vishwa Nath Pratap Singh and the accused have neither been disclosed nor suggested. No inference of closeness can in the circumstances be drawn on the basis of the information furnished by Sri Fateh Bahadur Singh. To be associated with an election is not necessarily to be close to a candidate. Intimacy is not a mere matter of association. It is the degree of attachment which is material. No inference of closeness can in the circumstances be drawn on the basis of the information furnished by Sri Fateh Bahadur Singh. To be associated with an election is not necessarily to be close to a candidate. Intimacy is not a mere matter of association. It is the degree of attachment which is material. Though no personal knowledge of closeness of Sri Vishwa Nath Pratap Singh with Ravi Deo Narain Pandey has been asserted by the applicant, he has drawn the following inferences from the information referred to in paragraph 28 of the CID report, that Ravi Deo Narain Pandey was close to the Chief Minister that because of the closeness Sri Vishwa Nath Pratap Singh was interested in helping him in the proceedings-an assumption without any foundation; that because Sri Vishwanath Pratap Singh was interested in helping the accused Ravi Deo Narain Pandey the authorities conducted the proceedings in a manner helpful to him that because of the interest of the Ex-Chief Minister the Sessions Judge in order to oblige him for a support given to him in an administrative matter by late Hon'ble Mr. Justice C. S. P. Singh, the brother of the Chief Mininster, took a partisan view in favour of the accused Ravi Deo Narain in the proceedings of the trial. All this seems fanciful imagination. Neither the closeness! of accused Ravi Deo Narain Pandey with Sri V. P. Singh nor any interest of the latter in the case has been established from the material on record. Suggestions made in this regard bear no scrutiny and deserve to be rejected. The further suggestion that because of the interest Sri Vishwanath Pratap Singh the authorities and the Sessions Judge were trying to help the accused Ravi Deo Narain Pandey is also not made out from the record and has to be rejected further on the ground that the premise on which it is made does not subsists. I shall however, deal with the circumstances pointed out by the learned counsel in regard to the unfairness of the trial as suggested by him. But before I do it it seems necessary to point out that the allegations made against Sri Vishwanath Pratap Singh lack the measure of responsibility and the care and caution which is required to be observed in a judicial proceeding. But before I do it it seems necessary to point out that the allegations made against Sri Vishwanath Pratap Singh lack the measure of responsibility and the care and caution which is required to be observed in a judicial proceeding. Sri Vishwanath Pratap Singh has not been made a party to the petition while the entire gamut of attack is grounded on an interest alleged to have been evinced by him in favour of accused Ravi Deo Narain Pandey. It is unfair to make accusations against a party and deny him the opportunity to meet them. It was put to the learned counsel for the applicant to clarify whether according to the applicant Sri Vishwanath Pratap Singh himself was trying to bring his influence to bear on the proceedings or whether the authorities were trying to do something to please him. Learned counsel fairly stated that there was no material available to the applicant to indicate any direct involvement of Sri Vishwanath Pratap Singh in the matter but the circumstances suggested an inference that the authorities were trying to protect the accused Ravi Deo Narain Pandey. When there was no material available against Sri Vishwanath Pratap Singh there was no justification to involve him in the controversy in the manner it was done. Interference with judicial proceedings is a serious matter and a person making allegation in this regard has to act with due care and caution. I have already found the aspersions made against Sri Vishwanath Pratap Singh as without substance and as one deserving to be rejected. Learned counsel for the applicant in this connection submitted that proof of facts was not necessary in a petition for transfer, only the impression of the applicant and his apprehensions were relevant and they had to be examined in the light of the circumstances. The apprehension has to be judged on the basis of facts found or established, and not on the basis of assumptions or imagination of a party. It may further be observed that the involvement of Hon'ble (late) Mr. Justice C. S. P. Singh in this controversy was wholly out of place. 5. THE applicant does not know what was the attitude of late Hon'ble Mr. Justice C. S. P. Singh in an administrative matter and how he acted in it and what would he have said about it. Justice C. S. P. Singh in this controversy was wholly out of place. 5. THE applicant does not know what was the attitude of late Hon'ble Mr. Justice C. S. P. Singh in an administrative matter and how he acted in it and what would he have said about it. To drag him in this controversy was wholly uncalled for. 6. I shall now deal with the circumstances pointed out and the submissions made by the learned counsel in regard to the transfer sought. It was submitted that out of the four witnesses mentioned in the CID report in respect of the defence of alibi raised by accused Ravi Deo Narain Pandey, only two had been examined, and the other two had not been examined. Those who had not been examined, it was suggested, could strongly support the prosecution and falsify the plea of alibi. It is relevant to point out that the learned Judge had passed an order summoning all the four witnesses mentioned in the CID report. The production was on the part of the prosecution, and if two, out of the four, could not appear, the fault did not lie with the Judge. The prosecution agency may not have been able to procure their attendance for certain reasons, and it may have explained its inability to produce them. The applicant had engaged a private counsel in the case, and if he considered their presence necessary, he could have taken steps to obtain their presence. No suggestion is made that inspite of steps taken by the complainant, the Judge acted in a manner hostile to the prosecution. Since the learned Judge had summoned all the four witnesses, he had shown his fairness in the matter, and if some of the witnesses summoned were not produced, that may have a bearing on the merits of the case, and not the fairness of the trial. 7. LEARNED counsel then submitted that after the CID Inquiry, the investigating officer who had conducted the investigation had been suspended, and this led to an inference that the authorities were siding with the accused. The departmental proceedings taken against an officer in respect of an investigation made into a crime have no relevance in regard to the trial conducted by the Judge. It was suggested that because of the interestedness of Sri Vishwa Nath Pratap Singh, the investigating officer may have been suspended. The departmental proceedings taken against an officer in respect of an investigation made into a crime have no relevance in regard to the trial conducted by the Judge. It was suggested that because of the interestedness of Sri Vishwa Nath Pratap Singh, the investigating officer may have been suspended. This is far too fetched an assumption. I have already dealt in detail with the alleged interest of Sri Vishwa Nath Pratap Singh in the case and have found that the applicant has failed to establish his interest in the proceedings. In that view of the matter, the suspension of the investigating officer is a purely departmental matter, and has no bearing in the proceedings of the case. 8. LEARNED counsel further submitted that the murder of Sri Madan Mohan Rai, the deceased in the sessions trial, took place after the fall of the Janta government and coming into power of the Congress (I), and this had occurred on account of an omission or lapse on the part of the administration to provide the deceased with adequate security measures as had been done in the Janta regime, and this led to an inference that the administration was partial in regard to its treatment to persons who fell in political groups other than Congress (I), and further led to an inference in the mind of the applicant that the administration was inclined to help accused Ravi Deo Narain Pandey who belonged to Congress (I) group. This is far too fetched an imagination. The omission or lapse on the part of the administration if at all in regard to security measures in respect of the deceased in the case does not lead to any inference that the administration has sided with any party in the murder trial or it has been conducting itself in a manner to help accused Ravi Deo Narain Pandey in the sessions trial. Since the transfer is sought from the court of Sri S. D. N. Singh, what has to be seen in regard to the trial is the conduct of the Judge in it. From the lapse or omission on the part of the administration no partisan attitude, either of the Judge or the prosecuting agency in the case, can be inferred. Since the transfer is sought from the court of Sri S. D. N. Singh, what has to be seen in regard to the trial is the conduct of the Judge in it. From the lapse or omission on the part of the administration no partisan attitude, either of the Judge or the prosecuting agency in the case, can be inferred. It was then submitted that the bullet fired in incident bad not been produced in court in accordance with law inasmuch as the seal of the cover containing the bullet had not been opened in the open court, and a question has now arisen in the case whether the bullet fired was from a rifle or a revolver. It was suggested that the Judge has manipulated the production of the bullet in a manner to suit the defence, and if he makes an observation in regard to its production, he will be a witness in the case, which would disentitle him to try the same. The production of the bullet in the proceedings of the case was a matter relating to the conduct of the trial. The proceedings were being watched by a private counsel, Sri V. C. Tiwari, engaged by the complainant. I do not have the entire record of the case before me, and no opinion can be expressed in regard to the regularity or otherwise in regard to the production of the bullet. The counsel for the parties were watching the proceedings, and it was open to them to raise such objections as were available to them. What is the actual state of affaris in this regard is not known to this Court, and hence any observation in this regard is not called for. The question of the production of the bullet and the procedure adopted thereto relate to the merits of the case, and no opinion need be expressed in this regard. The suggestion that the Judge will constitute himself a witness in the case will arise when he expresses an opinion or makes an observation which has the effect of constituting him a witness. Until then, he is not a witness in the case. From the material on record before me no inference can be drawn that the Sessions Judge was a party to any manipulation as suggested by learned counsel for the applicant. 9. Until then, he is not a witness in the case. From the material on record before me no inference can be drawn that the Sessions Judge was a party to any manipulation as suggested by learned counsel for the applicant. 9. THESE were the circumstances pointed out by learned counsel for the applicant, and it was submitted that their cumulative effect could lead to an apprehension in the mind of the applicant that the trial was not fair. It was submitted that justice should not only be done but must also appear to have been done, and the apprehension of the applicant should be judged from the degree of intelligence he possesses and from his attitude of mind. Reliance was placed on : (1) Suresh Kumar v. State, 1981 CrLJ 928 , (2) In re The Special Courts Bill, 1978 AIR 1979 SC 478 , (3) Ram Ratan v. State, 1976 CrLJ 1799 , (4) Shafiquddin v. State, 1968 CrLJ 1536 , (5) Smt. Pyara v. Shiv Shanker, AIR 1963 Allahabad 476, (6) Manohar v. State, MR (37) 1950 Allahabad 735 (CN 284), (7) Baqridee v. Emperor, AIR 1930 Allahabad 495, (8) Faqir Chand v. Karam Chand Hiteshi, AIR 1942 Lahore 122, (9) Ahmad Din v. King-Emperor, AIR 1925 Lahore 101, (10) In the matter of three Vakils of Jhansi AIR 1928 Allahabad 396, (11) Bhajan Lal v. Emperor, AIR 1947 Allahabad 13, (12) Mohan Lal v. Emperor, AIR 1947 Allahabad 149, (13) Sushil Kumar Choudhary v. The State, AIR 1960 Patna 160, (14) Bhoia Nath v. Mrs. V.Mrs. Vaheshwar Nauth Singh, AIR 1927 Allahabad 708 and (15) Muhammed Daroz Khan v. Emperor, AIR 1921 Allahabad 55. It is not necessary to deal with these cases separately as each case depends on its own facts. I shall discuss the general law relating to transfer in the light of the provisions of Section 407, Code of Criminal Procedure. This section, so far as material, provides as follows : "407. (1) Whenever it is made to appear to the High Court (a) that a fair and impartial inquiry or trial cannot be had in any criminal court subordinate therto, or (b)............... (c)............... it may order- (i)............... (ii) that any particular case or appeal, or class of cases or appeals, be transferred from a Criminal Court subordinate to its authority to any other such criminal court of equal or superior jurisdiction,......... In Mrs. (c)............... it may order- (i)............... (ii) that any particular case or appeal, or class of cases or appeals, be transferred from a Criminal Court subordinate to its authority to any other such criminal court of equal or superior jurisdiction,......... In Mrs. Maneka Sanjay Gandhi v. Miss Rani Jethmalani, AIR 1979 SC 468 it was held as follows : "Assurance of a fair trial is the first imperative of the dispensation of Justice and the central criterion for the court to consider when a motion for transfer is made is not the hypersensitivity or relative convenience of a party or easy availability of legal services or like mini-grievances. Something more substantial, more compelling, more imperilling, from the point of view of public justice and its attendant environment, is necessitious if the Court is to exercise its power of transfer. This is the cardinal principle although the circumstances may be myriad and vary from case to case. The grounds for the transfer have to be tested on this touchstone..............." Under section 407, Code of Criminal Procedure, it has to appear to the High Court and not to a party that a fair and impartial trial or enquiry cannot be held in a court subordinate to it. In Hazara Singh Gill v. The State of Pun jab, AIR 1965 SC 720 at p. 721 it was observed that in a case of transfer the question really is whether the petitioner can entertain a reasonable apprehension that he would not get justice. A fanciful apprehension can never furnish a ground for transfer (see Daljit Singh Harnam Singh v.K.P. Hati, Asstt. Collector of Custom, New Delhi, AIR 1969 Delhi 263. In Manak Lal, Advocate v. Dr. Preme Chand Sindhvi, AIR 1957 SC 425 it was pointed out that bias should be reasonably apprehended in order to affect a judicial proceeding. In Koko Gyl. Emperor, (1936) 37 CrLJ 436 it was held : "Before the High Court takes into consideration an apprehension in the mind of the accused that he will not get a fair trial, the court must be satisfied that the apprehension is not a fanciful one." A hyper-sensitiveness of a party cannot furnish a ground for transfer (see Rex through Manzoor Hasan v. Mohd. Ilyas, AIR 37 1950 Allahabad 312; Girsh Narain Awasthy v. The State through V. N. Misra, Munsif, Etawah, AIR (38) 1951 Allahabad 355 ; and Chiranji Lal v. The State, AIR 1955 Allahabad 701. It seems to me that mere subjective satisfication of a party is not conculsive in the matter but the objective assessment of the circumstances by the High Court is determinative of the fairness or otherwise of the proceedings. The sensitiveness of a party is an attitude of his mind, and if it has to appear to the High Court whether a party can entertain reasonably an apprehension, the attitude of mind of the party is, to my mind, not a clinching factor but the objective assessment of the circumstances from the point of view of a reasonable man should be the guiding factor in order to judge whether a reasonable apprehension can be entertained by the party praying for transfer. The apprehension has to be a reasonable one before it can call for a transfer. None of the circumstances pointed out by the learned counsel for the applicant, either individually or cumulatively, lead to an inference that the trial conducted by the Sessions Judge was unfair or partial. The case is at the stage of delivery of judgment. The applicant participated in the proceedings, and the case on his behalf has been argued by his counsel before the court below. In the circumstances, and for the reasons discussed, I do not find it a fit case for transfer. The application is dismissed. Application dismissed.