Surendra Prasad Mishra v. Kanhai Ram — 1998 DIGILAW 20 (MP)

ORDER Dipak Misra, J. 1. Invoking the jurisdiction of this Court under Section 407 of the Code of Criminal Procedure (herein referred to as 'the Code') the Petitioner has assailed the correctness of the order passed by the learned Sessions Judge, Sidhi refusing to transfer Sessions Trial No. 52 of 1995 from the Court of the First Additional Sessions Judge, Sidhi to any other Court at Sidhi. 2. The essential facts giving rise to the present petition are enumerated hereunder: The non-applicants Nos. 1 to 8 were facing trial for offences punishable under Section 302/149,147 and 148 of I.P.C. in Sessions Trial No. 52/95 before the learned First Additional Sessions Judge, Sidhi. An application was filed by the mother of the Petitioner for transfer of the aforesaid Sessions Trial from the Court of First Additional Sessions Judge, Sidhi to any other Court of Sessions at Sidhi. In the said petition filed under Section 408 of the Code on 18.10.96 Smt. Shanti Devi, the mother of the present Petitioner, had alleged that the First Additional Sessions Judge, Sidhi was not disirous of disposing of the trial in an expeditious manner and the attitude of the said trial Judge in dealing with the matter was quite lackadaisical. It was also alleged therein that the accused persons were quite influential people and with they had threatened the prosecution witnesses with dire consequences. It was further alleged that the accused persons had colluded with the Bench clerk of the said Court and tried to effect service of summons to the witnesses through the accused persons and when the witnesses protested, they were terrorised. It was also stated in the petition of transfer that the allegations against the accused persons were brought to the notice of the Court by the Station House Officer, Madwas but no action was taken. The mother of the Petitioner also alleged that the learned trial Judge, at the time of recording her deposition misbehaved with her and the testimony was not recorded in the manner it was stated. Apart from the aforesaid allegations it was also emphasized that the accused/persons had threatened some prosecution witnesses to extinguish their life spark if they deposed against them and though this fact was brought to the notice of the learned trial Judge, no action was taken. 3. Apart from the aforesaid allegations it was also emphasized that the accused/persons had threatened some prosecution witnesses to extinguish their life spark if they deposed against them and though this fact was brought to the notice of the learned trial Judge, no action was taken. 3. The aforesaid application was considered by the learned Sessions Judge who after perusing the objection filed by the accused persons and the report of the learned First Additional Sessions Judge, Sidhi and upon perusal of the entire order sheet dated 10.1.97 came to hold that, the application did not merit consideration. To arrive at his ultimate conclusion he has referred to various circumstances. He has observed that on 16.10.96 Shanti Devi was cross-examined and thereafter as there was a condolence meeting at the Bar Association and the lawyers were not working the other witnesses, namely, Sonelal and Harihar Prasad could not be examined on that date. On 17.10.96 the prosecution witnesses namely Chetmani, Saraswati, Premwati and Lakhpati were present. As the counsel for the accused Shri D.B. Singh was absent and adjournment was sought tor on his behalf by counsel Shri D.A. Khan, learned trial dudge did not record the evidence on that date and while doing so he directed that witnesses expenses shall be borne by the concerned accused. On 18.10.96 witness Dr. Dagendra Singh was examined in chief and cross-examined and discharged. Due to lack of time the examination of the other witness Narmada Prasad could not be done. On 23.10.96 no witness on behalf of the prosecution was present. On 27.11.96 Harihar Prasad Mishra, Sonelal and Chetmani were examined in chief and cross-examined and discharged. As it appears from the order of the learned Sessions Judge on 28.11.96 Premwati, Saraswati and Lakhpati were examined in chief and were cross examined on behalf of the accused Chhote, the non-applicant No. 7 herein. As the conducting counsel for other accused persons was not available the cross-examination was deferred. On 29.11.96 Indrajit and Sunder were examined in chief and also cross-examined. Discussing all these orders in detail the learned Sessions Judge came to hold that most of the witnesses had been examined and the evidence of only four witnesses namely, Narmada Prasad, Lakhpati, Rajnish Kumar and Bhagwan were to be completed. As the said Court did not find fault with the learned trial Judge, he rejected the prayer for transfer. 4. Discussing all these orders in detail the learned Sessions Judge came to hold that most of the witnesses had been examined and the evidence of only four witnesses namely, Narmada Prasad, Lakhpati, Rajnish Kumar and Bhagwan were to be completed. As the said Court did not find fault with the learned trial Judge, he rejected the prayer for transfer. 4. It has also been putforth in the petition that on 8.5.97 another petition was filed by the informant Smt. Shanti Devi before the Sessions Court evincing improper procedure adopted by the trial Judge, highlighting indolent delineation of the matter and emphasizing his indifference to the threats given by the accused persons. The learned Sessions Judge considered the said application and by order dt. 8.9.97 rejected the prayer for transfer. Challenging the aforesaid order the Petitioner, the son of Shanti Devi, has preferred this application under Section 408 of the Code. 5. This Court while admitting the application on 19.9.97 called for a report from the learned trial Judge. In pursuance of the said order the learned trial Judge has already submitted a report which shall be referred to at the appropriate stage. 6. Mr. S.L. Kochar, learned Counsel for the Petitioner, challenging the aforesaid impugned order has contended that on a perusal of the order passed by the learned trial judge on various occasions, it is clear as noon day that procedure adopted by him are not in consonance with the accepted norms and established principles and involvement of the clerk of the said Court in service of summons to the witnesses through the accused persons is quite a serious deviation making whole atmosphere not conducive for a fair trial. It is further urged by him that the Petitioners are not required to make out a case with mathematical precision that inevitably justice would fail but they are required to show there prevailing circumstances which give rise to an inference that the Petitioners are justified to entertain an apprehension that there would not be a just and fair trial. In support of his contentions Mr. Kochar has placed reliance on the decisions rendered in the cases Gurcharan Dass v. State of Rajasthan AIR 1966 SC 1418 , D.N. Agrawal v. State of M.P. (1986 M.P.L.J. 210) and the decision rendered by this Court in M. Cr.C. No. 6005/96 on 30.7.1997. 7. Mr. In support of his contentions Mr. Kochar has placed reliance on the decisions rendered in the cases Gurcharan Dass v. State of Rajasthan AIR 1966 SC 1418 , D.N. Agrawal v. State of M.P. (1986 M.P.L.J. 210) and the decision rendered by this Court in M. Cr.C. No. 6005/96 on 30.7.1997. 7. Mr. L.S. Banhel, learned Senior counsel for the non-applicants No. 1 to 4 and 8 resisting the submissions of the learned Counsel for the Petitioner has convased that on a perusal of the orders passed by the learned Sessions Judge it is quite perceptible that adroit attempts are being made by the Petitioners seeking transfer of the case for some oblique motive. It is also proponed by him that the facts which emerge from the petition, the orders passed by the learned trial Judge and the orders passed by learned Sessions Judge do not indicate in any manner whatsoever that a situation is prevalent justifying apprehension in the minds of the Petitioners. It is strenuously urged that the apprehension must be reasonable founded on prudence but unfortunately the gravamen of the allegations does not so establish. Further submission of the learned Counsel is that before the learned Sessions Judge the mother of the Petitioner, the informant had preferred the application under Section 408 of Cr. P.C. but for the reasons best known to the present Petitioner, he has filled this application though such an application is not envisaged in law. 8. Mr. Y.P. Sharma, learned Counsel for non-applicants No. 3, 5, 6 and 7 has taken the same stand that has been taken by Mr. Baghel. 9. Mr. A.P. Shukla, learned G.A. for State has supported the order passed by the learned Sessions Judge for the reasons indicated therein. 10. Before I proceed to deal with the factual fulcrum in the case at hand, it is essential to deal with the circumstances under which invocation of jurisdiction of this Court under Section 407 of the Code are warranted. A.P. Shukla, learned G.A. for State has supported the order passed by the learned Sessions Judge for the reasons indicated therein. 10. Before I proceed to deal with the factual fulcrum in the case at hand, it is essential to deal with the circumstances under which invocation of jurisdiction of this Court under Section 407 of the Code are warranted. It is worthwhile to refer to Section 407(1) and (2) which are relevant for the present purpose: 407 (1) Whenever it is made to appear to the High Court - (a) that a far and impartial inquiry or trial cannot be had in any Criminal Court subordinate thereto, or (b) that some question of law of unusual difficulty is likely to arise, or (c) that an order under this section is required by any provision of this Code, or will tend to the general convenience of the parties or witnesses, or is expedient for the ends of justice, it may order - (i) that any offence be inquired into or tried by any Court not qualified under Sections 177 to 185 (both inclusive), but in other respects competent to inquire into or try such offence, (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. (iii) that any particular case be committed for trial to a Court of Session, or (iv) that any particular case or appeal be transferred to and tried before itself. (2) The High Court may act either on the report of the lower Court, or on the application of a party interested, or on its own initiative: Provided that no application shall lie to the High Court for transferring a case from one Criminal Court to another Criminal Court in the same sessions division, unless an application for such transfer has been made to the Sessions Judge and rejected by him. On a plain reading of the aforesaid provisions it is crystal clear that anyone of the three grounds as mentioned in Clauses (a) to (c) of Sub-section (1) must be alleged and substantiated. In the case at hand as the facts have been unfurled, the transfer is not sought for on the grounds enumerated under Clause (b). On a plain reading of the aforesaid provisions it is crystal clear that anyone of the three grounds as mentioned in Clauses (a) to (c) of Sub-section (1) must be alleged and substantiated. In the case at hand as the facts have been unfurled, the transfer is not sought for on the grounds enumerated under Clause (b). The entire case is founded on Clause (a) and to some extent under Clause (c), as in course of hearing of this application, the concept of 'ends of Justice' has been pressed into service highlighting that a fair and inpartial trial is not possible if the case is tried by the learned trial Judge who is in seisin of the matter. 11. Fair and impartial trial is the very foundation of any justice oriented system. The litigants should feel assured and their faith in adjudicating system cannot be allowed to be corroded by such circumstances which engender suspicion and generate distrust. It is a well embedded principle in law that justice should not be done but should appear to have been done. Absence of any impediment in a fair trial and creation of conducive atmosphere for the same are the bedrock which sustain the majesty of law. At this juncture I may refer to the decision rendered in the case of Manak Lal, Advocate v. Dr. Premchand Singhvi and others, AIR 1957 SC 425 wherein the Apex Court approved the observation of Lord Hewart, CJ is Rex v. Sussex Justices. Ex parte McCarthy, (1924) 1 K.B. 256 (B). I may profitable quote the observation of the said eminent Judge: But while that is so, a long line of cases shows that it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done. In the case of Gurucharan Dass (supra) the Apex Court indicated that from circumstances it can be inferred that a party is justified in entertaining an apprehession. I may profitably quote their Lordships: 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 requited to demonstrate that justice will inevitably fail. I may profitably quote their Lordships: 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 requited to demonstrate that justice will inevitably fail. He is entitled to a transfer if he shown circumstances from which it can be inferred that he entertains an apprehension and that it is reasonable in the circumstances alleged. It is one 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 given case does not suffice. The Court has further to see whether the apprehension is reasonable or not. From the aforesaid it is clear as day that there must be circumstances from which it can be logically inferred that the apprehension in the mind of a litigant that there is possibility of not being a fair and impartial trial is reasonable. Needless to emphasize that he paramount consideration is that the litigant must have confidence in the impartiality and objectivity of the Courts. The apprehension entertained by a party must be that of a reasonable person and the circumstances must clearly poin out to the same. Neither the prosecution nor the defence or the party aggreived will be entitled to an order of transfer because some allegations are made against the presiding Judge without a proper foundation. It is well settled in law that an erroneous view expressed by the Court does not justify an order for transfer. Refusal for prayer for adjournment and to pass an order in course of proceeding which might not withstand close scrutiny 'ipso facto' does not make out a ground for transfer. In this centext, I may refer to the decision rendered in the case of Hariram v. State, AIR 1956 MB 17: The basis of transfer of a case is that the accused should have a reasonable apprehension that they would not have a fair trial. But no fanciful idea can be substituted for reasonable apprehension. Again his Lordship further laid down as follows: A mistake of law made bona fide is so ground for the transfer of a case. See- 'Ashirbai Muchi v. Muju Muchini,' 8 Cal WN 838 (C). But no fanciful idea can be substituted for reasonable apprehension. Again his Lordship further laid down as follows: A mistake of law made bona fide is so ground for the transfer of a case. See- 'Ashirbai Muchi v. Muju Muchini,' 8 Cal WN 838 (C). From the aforesaid discussion it is apparent that the apprehension has to be reasonable and the party seeking transfer is not required to demonstrate that justice will inevitably fail and it should be borne in mind that the justice should not only be done but should manifestly be seen to be done. That apart, while keeping in mind that a fair trial is the basic requirement for dispensation of justice, simultaneously hypersensitivity and mini-grievances should not given undue weightage to form the bedrock in passing an order of transfer. Mini grievances should not be allowed to function as catalyst to substantiate the plea of bias. In this regard, I may refer to the decision rendered in the case of Mrs. Maneka Sanjay Gandhi and Anr. v. Miss Rani Jethmalani, AIR 1979 SC 468 wherein the Apex Court expressed thus: 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, from the point of view of public justice and its attendant environment, is necessitous if the Court is to exercise its power of transfer. 12. The factual matrix of the present case is to be tested on the touchstone of aforesaid enunciation of law. Question of apprehension in the mind of a litigant is to depend upon the facts of each case. As has been stated earlier the learned Sessions Judge while considering the application for transfer in his first order dated 10-01-97 had clearly indicated that most of the witnesses had already been examined and the allegations to the effect that the learned Additional Sessions Judge was adjourning the matter from time to time being influenced by the accused persons and their counsel were unfounded. In the second order passed on 8-12-97 it is perceptible that the learned Sessions Judge had discussed at length with regard to the proceedings before the Additional Sessions Judge. In the second order passed on 8-12-97 it is perceptible that the learned Sessions Judge had discussed at length with regard to the proceedings before the Additional Sessions Judge. As it appears from Paragraph 5 of the impugned order that all the witnesses on behalf of the prosecution have been examined and the accused statements have already been recorded on 22-4-97 and the matter was posted to 26-4-97. Defence witness Sugriv Prasad was examined and the matter was adjourned to 28-4-97 for examination of other defence witnesses. On 28.4.97 the defence witnesses were examined and the matter was posted to 29-4-97 for argument. The matter was argued on 29-4-97 and the case was posted for judgment to 1-5-97. At this juncture on 30-4-97 the accused, persons namely, Ramdhani, Shiv Kumar and Chhote voluntarily appeared before the Court and filed affidavits stating that they have been falsely implicated by the investigating agency though they had no role to play in the alleged occurrence. It was stated in the said affidavit that they have been arraigned as accused by the prosecution at the instance of the well wishers of the some of the accused persons, namely. Kanhaiyaran and Rajendra Prasad so that they cannot be cited as eye-witnesses to the occurrence. As their affidavits were brought on record, the matter was adjourned to 1-5-97 for consideration. On 1 -5-97 the said affidavits were brought to the notice of the counsel for the accused and on behalf of the defence an adjournment was sought for to address the Court in that regard and accordingly the matter stood adjourned to 2-5-95. On 2-5-97 further adjournment was sought for by the defence to give counter affidavits to the said affidavits by refuting the allegations made therein. The learned trial Judge on 2-5-97 has recorded in the order sheet that on his querry to the counsel for both the parties with regard to the evidenctiary value of the said affidavits the public prosecutor Shri Pandey faily conceded that the said affidavits had no legal significance. However, as the learned Counsel for the defence submitted that the allegations had been made against the some of the accused persons, he wanted to adduce further evidence to rebut the same and accordingly the matter was posted to 14-5-97 for examination of defence witnesses. However, as the learned Counsel for the defence submitted that the allegations had been made against the some of the accused persons, he wanted to adduce further evidence to rebut the same and accordingly the matter was posted to 14-5-97 for examination of defence witnesses. While the matter stood thus, the present Petitioner filed the application for transfer before the Court of Session. The learned Sessions Judge has also observed that it was also being stated that the accused persons, Rajendra Prasad and Kalan, had threatened the complainant by stating that they had already given one lakh of rupees to obtain an orer of acquittal and they would take revenge after the acquittal. These statements were heard by Vishnu Bahadur and Rajeshwar. The learned Sessions Judge has recorded a finding that the witnesses who had heard the accused persons stating so had not sworn any affidavit and they have also not been examined in Court. He has also recorded a finding that out of 27 chargesheet witnesses 24 had been examined and the case was posted for judgment and, therefore, question of any witness being moulded or gained over or influenced did not arise. With regard to grant of adjournment for a counter affidavit by the defence to rebut the allegations against them, the learned Sessions Judge has not expressed any opinion on merits of the same. He has also observed that the allegations were unfounded and the Sessions Trial did not warrant transfer. 13. At this juncture, I may refer to the report submitted by the learned Additional Sessions Judge. On a perusal of the said report I find that when the allegations were made against his Bench Clerk by a letter sent by the registered post he immediately, in writing brought it to the notice of the learned Sessions Judge and the learned Sessions Judge had already transferred the said Clerk. He has also indicated that he had no knowledge" with regard to the activities of the Clerk. He has Clearly stated that at no point of time the complainant Shanti Devi was misbehaved by him or any defamatory words were used against her. He has also clearified that the deposition of Shanti Devi was recorded as stated by her and the suggestions given by the defence were recorded as required in law. He has Clearly stated that at no point of time the complainant Shanti Devi was misbehaved by him or any defamatory words were used against her. He has also clearified that the deposition of Shanti Devi was recorded as stated by her and the suggestions given by the defence were recorded as required in law. He has pointed out that the counsel for both the sides including the counsel engaged by the informant to assist the prosecution were present, and hence allegations are absolutely unfounded. He has expressed that he had no knowledge with regard to the threats given by the accused persons to the witnesses. He has further indicated that taking into consideration the gravity of the offence some adjournments were granted as the defence prayed for some time to cross-examine the material witnesses. He has also indicated that apprehension in the mind of the complainant or his son are not based on materials on record. With regard to the petition dated 27-11-96 filed by the Petitioner for adjournment of the proceeding as the transfer application was pending before the learned Sessions Judge it is explained that such fact was not mentioned in the ordersheet dated 27-11-97 and the proceedings continued. Learned Additional Sessions Judge had stated that it was a bona fide mistake that the same could not be reflected in the ordersheet, though the petition was kept on the file. It has also been clarified by him that the said petition was not moved otherwise the same would have duly considered. 14. On close scrutiny of the two orders passed by the learned Sessions Judge on two occasions and the report submitted by the learned Additional Sessions Judge, I find that the grievance relating to some adjournments being granted by the trial Judge, the threats given by the accused persons to some of the witnesses and the claims putforth by the accused persons in regard to obtain order of acquittal on extraneous consideration are the main forte seeking transfer. The other miner grievances as have been putforth are that the informant was ill-treated by the presiding officer and her deposition was properly recorded and the petition filed by the present Petitioner Surendra Mishra on 27-11 -96 was not reflected in the order. Let me proceed to consider cumulative effect of these allegations. The other miner grievances as have been putforth are that the informant was ill-treated by the presiding officer and her deposition was properly recorded and the petition filed by the present Petitioner Surendra Mishra on 27-11 -96 was not reflected in the order. Let me proceed to consider cumulative effect of these allegations. As far as threats by the accused persons to the informant and the witnesses are concerned the same cannot be a factor for transfer of the case from one Court to another. If the informant or any of the witnesses were affected by such threats, it was open to them to move for cancellation of bail taking recourse to proper procedure in law. As far as ill-treatment to complainant and not recording of her deposition as has been stated by her I find they are not based on proper foundation. That apart, if the evidence was not properly recorded, as have been alleged the said fact should have been highlighted by the counsel who was engaged by the informant herself. As far as the allegations against the Bench Clerk is concerned the learned Trial Judge cannot be held responsible for his activity and in any case, as it appears, the learned Additional Sessions Judge had immediately intimated the learned Sessions Judge in writing and the learned Sessions Judge had already transferred his from the said post. In regard to the petition dated 27-11-96 non-mentinoning of the presentation of the petition for adjournment/ stay filed by Mr. S.K. Mishra, I am-of-the considered view that cannot be a ground for transfer of the case. It could have been pressed by Surendra Mishra through his counsel that such a petition was filed and that should be dealt with. In absence of that, no fault can be found with the Additional Sessions Judge. As far as allegations with regard to loud claim made by the accused persons to obtain an order of acquittal is without any basis or foundation and the same being quite mercurial in nature, it cannot form the basis for transfer. That apart, the witnesses who had heard the accused persons to have said so have not sworn affidavits or examined themselves in the Court. As it appears that the prayer seeking transfer is not basis on reasonable apprehension. The allegations are specious and are not acceptable in taw. 15. That apart, the witnesses who had heard the accused persons to have said so have not sworn affidavits or examined themselves in the Court. As it appears that the prayer seeking transfer is not basis on reasonable apprehension. The allegations are specious and are not acceptable in taw. 15. Quite apart from the above, it is worthwhile to mention that initially two petitions for transfer were filled by Shanti Devi, the mother of the Petitioner, under Section 408 of the Code seeking transfer. The first order was not challenged by anyone and the second order has been accepted by Shanti Devi. The present Petitioner had not approached the learned Sessions Judge as enjoined in the proviso of Section 407 (2) of the Code which envisages that anyone who seeks a transfer from one Court to another in the same Sessions Division has to first apply to the Court of Session. The present Petitioner had not filed any transfer application himself though his mother had filed. 16. At this juncture, I am inclined to observe that a transfer application has be dealt with care and caution. The allegations are to be scrutinsed in a studied manner with utmost objectivity, keenness to dispense justice keeping in view the majesty of law. While apprehension of a litigant and the principle that justice not only be done but should appear to be done are to be given due regard, simultaneously, it should also be borne in mind that the High Court has a duty towards the subordinate judiciary. In this context, I may refer to the decision rendered in the case of Samsher Singh v. State of Punjab, AIR 1974 SC 2192 wherein the Apex Court expressed its concern in the following manner: The members or the subordinate judiciary are not only under the control of the High Court but are also under the care and custody of the High Court. The High Court failed to discharge the duty of preserving its control. The request by the High Court to have the enquiry through the Director of Vigilance was an act of self abnegation. The contention of the State that the High Court wanted the Government to be satisfied makes matters worse. The Governor will act on the recommendation of the High Court. That is the broad basis of Article 235. The High Court should have conducted the enquiry preferably through District Judges. The contention of the State that the High Court wanted the Government to be satisfied makes matters worse. The Governor will act on the recommendation of the High Court. That is the broad basis of Article 235. The High Court should have conducted the enquiry preferably through District Judges. The members of the Subordinate judiciary look up to the High Court not only for discipline but also for dignity. 17. In view of the foregoing discussion, I am of the considered view that the application does not merit consideration and deserves to be rejected and I do so accordingly. However, keeping in view entire range of facts I am inclined to direct that the learned First Additional Sessions Judge, Sidhi would do well to dispose of the trial as expeditioulsy as possible, preferably, by end of March, 1998. 18. Consequently the application is dismissed.