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1997 DIGILAW 999 (ALL)

Ravi Kapoor v. State Of U. P.

1997-09-01

S.K.PHAUJDAR

body1997
JUDGMENT S.K.Phaujdar (1.) THIS application under Section 407, Cr. P.C., has been filed for transfer of the proceedings of Sessions Trial No. 804 of 1993, State v. Lajpat Rai Kapoor and others, pending before the IInd Additional District and Sessions Judge, Agra, to any other court competent to try the matter. (2.) ON presentation of this application on 8.7.1997, the learned A. G. A. was allowed time to file a counter-affidavit a comment from the concerned court called for. There was, however, no direction for issuance of any notice on the second respondent, the informant of the case. The matter was directed to be put up on 26.8.1997 and further proceedings in Sessions Trial No. 804 of 1993 were stayed till 1.9.1997. The matter was heard on 27.8.1997 and has been directed to be put up on 1.9.1997 itself for orders. The informant appeared through a learned counsel at the time of the hearing. After the matter was kept reserved for judgment on 1.9.1997, an application was placed for extension of the stay order which is not at all necessary in view of the fact that final orders are being passed today itself. Initially, the trial was being held before the IIIrd Additional Sessions Judge, Agra, and he had recorded the evidence adduced on behalf of the prosecution and had examined the accused persons under Section 313, Cr. P.C. At that stage, several papers were filed on behalf of the defence and a prayer was made for issuance of summons on certain witnesses including Ram Ashrey Pandey from the Forensic Sciences Laboratory. This order was recorded on 4.2.1997 directing steps to be taken by 5.2.1997. (3.) STEPS were taken accordingly but on 4.2.1997 Itself a transfer application was moved before the High Court which was placed before Hon'ble R. N. Ray, J., in Criminal Application No. 35 of 1997. His Lordship was pleased to direct transfer of the proceedings of the concerned Sessions trial from the Court of IIIrd Additional Sessions Judge, Agra, to the Court of IInd Additional Sessions Judge, Agra. There was a further direction that the transferee court would hear the arguments and pronounce the judgment expeditiously. (4.) WHEN the matter went back to the court below and was placed before the IInd Additional Sessions Judge, Agra, the defence proposed to examine the witnesses for whom the prayer was already allowed by his predecessor. There was a further direction that the transferee court would hear the arguments and pronounce the judgment expeditiously. (4.) WHEN the matter went back to the court below and was placed before the IInd Additional Sessions Judge, Agra, the defence proposed to examine the witnesses for whom the prayer was already allowed by his predecessor. The Court, however, stuck to the letters of the order of Hon'ble Justice R. N. Ray, dated 4.2.1997 and declined an opportunity to the defence to examine witnesses. This action of the learned IInd Additional Sessions Judge, Agra, was challenged in Criminal Revision No. 172 of 1997 and the matter was disposed of by Hon'ble Justice D. C. Srivastava by his order dated 8.5.1997. His Lordship allowed the revision and set aside the impugned order dated 6.2.1997 whereby defence witnesses were debarred from being examined. His Lordship further directed that the accused persons were to take steps for summoning the three witnesses as per their earlier applications and directed examination of those witnesses and directed that defence papers might also be filed and only thereafter, the arguments were to be heard. (5.) THE matter came up before the Sessions Court on 27.5.1997. THE trial court reopened the matter of summoning Ram Ashrey Pandey, although the prayer was allowed earlier and the order was not set aside. He declined to issue summons on Shri Ram Ashrey Pandey. It has been gathered in course of the arguments of the learned counsel that the other defence witnesses were examined barring Ram Ashrey Pandey. (6.) IT is true that the High Court on an earlier transfer application had given certain directions for hearing arguments and conclusion of the trial. IT is quite possible that the real stage of the trial was not brought to the knowledge of the High Court. At that stage, in any case, the purpose of the application was to have the matter transferred and not to get cancelled the order for summoning the defence witnesses. The order dated 4.2.1997 should not, therefore, have been read in its letters only, it should have been read in its spirit that the court desired an early disposal. At that stage, in any case, the purpose of the application was to have the matter transferred and not to get cancelled the order for summoning the defence witnesses. The order dated 4.2.1997 should not, therefore, have been read in its letters only, it should have been read in its spirit that the court desired an early disposal. In fact, this was definitely clarified by the order of the High Court dated 8.5.1997 in Criminal Revision No. 172 of 1997 whereby the trial court was directed to permit the accused persons to take steps for summoning the three witnesses as per the earlier application. There was no scope for the trial court now to find fault with the prayer for summoning Ram Ashrey Pandey. The trial court should not have reopened the matter on the face of the definite directions of the High Court dated 8.5.1997. (7.) A transfer is not, therefore, the remedy in the case. The real grievance is that the defence is being prejudiced due to the order dated 27.5.1997. This may be redressed by reiterating the directions given by the High Court on 8.5.1997 and by telling the trial Judge that he had no authority to undo an order of the High Court. (8.) WHILE the prayer for transfer may not be necessary and is, therefore, disallowed, it is directed that the trial court must proceed in terms of the order dated 8.5.1997 of this High Court recorded in Criminal Revision No. 172 of 1997, which reached the court below through a copy prior to 27.5.1997 and through the original on 29.5.1997 as per copies of the orders for those dates. If steps for summoning Ram Ashrey Pandey have already been taken, he will be summoned immediately in terms of the prayers of the defence. If steps have not been taken, the same must be taken at the earliest by the defence whereupon summons are to follow. The court is to examine Ram Ashrey Pandey as a defence witness and only then he would conclude evidence and proceed further for arguments and judgment. This direction would not have been necessary, had the trial court followed the directions given in the aforesaid criminal revision. The High Court would normally expect from the subordinate courts that the orders of the High Court would be followed and not questioned by the courts below. This direction would not have been necessary, had the trial court followed the directions given in the aforesaid criminal revision. The High Court would normally expect from the subordinate courts that the orders of the High Court would be followed and not questioned by the courts below. With these observations, the application stands disposed of. Interim order stands vacated. Let a copy of this order be forwarded to the court below at once. It will be open for any party to produce a certified copy of this order to the court below and the court below is to act upon such certified copy.