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2000 DIGILAW 811 (AP)

R. Veera Raghava Rao v. State Of A. P.

2000-10-27

T.CH.SURYA RAO

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T. SURYA RAO, J. ( 1 ) THE petitioner seeks transfer of Criminal appeal No. 31 of 2000 pending on the file of the Metropolitan Sessions Judge, vijayawada, to any other Metropolitan sessions Court, Vijayawada. ( 2 ) THE petitioner was accused of the offence punishable under Section 138 of the negotiable Instruments Act. He was tried for the said charge in C. C. No. 652 of 1997, which ended in his conviction, before the III metropolitan Magistrate, Vijayawada. Having been aggrieved by the conviction and sentence, he sought to file Criminal appeal No. 31 of 2000 before the metropolitan Sessions Court, Vijayawada, along with the concomitant Crl. M. P. No. 193 of 2000 seeking suspension of the sentence, pending disposal of the appeal. Suspension was granted initially till 10-3-2000. On 10-3-2000 the Advocates at Vijayawada Bar were boycotting the Courts. The Counsel appearing for the petitioner seems to have given up his Memo of Appearance requesting the Court to grant adjournment and suspend the sentence pending disposal of the appeal. On the next adjournment date, when the petitioner sought adjournment again, it was said that the learned metropolitan Sessions Judge adjourned the case while threatening the petitioner that if he failed to argue the case on that day, he will be sent to jail for six months and he would not be granted further adjournment. On the next adjournment date, the petitioner requested a junior Counsel to file his Memo of Appearance oh his behalf. It appears that the learned Sessions Judge informed him that he would not accept the Memo of appearance filed by a junior Counsel and directed the petitioner to argue the case. Ultimately, the case was adjourned at the request of the said junior Counsel and suspension of sentence was also extended. It is the case of the petitioner that while adjourning the old appeals of years 1996, 1997 and 1998, the learned Metropolitan sessions Judge has taken a different view in his appeal alone, although Criminal Appeal no. 31 of 2000 is a latest one. Under the circumstances, the petitioner apprehends that he will not get justice before that court. ( 3 ) ON the application, remarks of the officer have been called for. 31 of 2000 is a latest one. Under the circumstances, the petitioner apprehends that he will not get justice before that court. ( 3 ) ON the application, remarks of the officer have been called for. The petitioner also filed the affidavit of the junior Counsel, who filed his Memo of Appearance on behalf of the petitioner and sought adjournment so as to buttress the averments made in the petition. The learned Metropolitan Sessions judge in his remarks, inter alia, explained that the Counsel. Who filed the appeal in crl. A. No. 31 of 2000 and another appeal in crl. A. No. 33 of 2000, has withdrawn his memo of Appearance on 07-3-2000. This happened only in respect of these two appeals and, therefore, he had to direct the parties to get ready in the main appeal. ( 4 ) IT is obvious that the Advocates at vijayawada Bar were abstaining from courts protesting against the C. P. C. Amendment Bill. Merely because the Court refused to grant adjournments and merely because the Court directed the party himself to argue the appeal, and threatened that if the party fails to argue the appeal, the suspension of execution of the sentence would not be extended, it cannot reasonably be concluded that the Court has a prejudicial outlook towards the party. Granting adjournments in the matters pending before the Court depends upon various circumstances. On account of the prolonged boycotts of the Courts by the Advocates, the courts remained without transacting any work. The practice of Counsel withdrawing from the case for the purpose of obtaining adjournment has been deprecated by the apex Courts in R. Balakrishna Pillai vs. State of Kerala. The Apex Court further held that if the Court seeks to enforce the presence of the party when the Counsel is withdrawing by that the party apprehending that he will not get any justice before the Court, is not justifiable. Before ordering the transfer of the case, it should appear to the Court that the apprehension in the mind of the party that he may not get justice before that Court is reasonable, genuine and justifiable. The apex Court in para 10 at the end observed as follows:-"in the present day scenario, if these types of applications are entertained, the entire judicial atmosphere would be polluted with such frivolous petitions for various reasons". The apex Court in para 10 at the end observed as follows:-"in the present day scenario, if these types of applications are entertained, the entire judicial atmosphere would be polluted with such frivolous petitions for various reasons". While making the said observation, the apex Court sought to rely upon its earlier dictum in Maneka Sanjay Gandhi vs. Rani jethmalani, which may be extracted hereunder thus: assurance of a fair trail is the first imperative of the dispension 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 imperiling, from the point of view of public justice and its attendant environment, is necessitous 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. We have to test the petitioner s grounds on this touchstone bearing in mind the rule that normally the complainant has the right to choose any Court having jurisdiction and the accused cannot dictate where the case against him should be tried- Even so, the process of justice should not harass the parties and from the angle the Court may weigh the circumstances". From the circumstances enumerated in the affidavit filed in support of the petition by the petitioner and the affidavit filed by the junior Counsel, I am afraid that it cannot be concluded with the necessary reasonable certitude that fair and impartial hearing of the appeal cannot be had. Insisting the parties to go ahead with the hearing of the appeal, perhaps threatening with penal consequences in the event of any defaulty cannot be a reasonable ground to apprehend that he would not get justice before that court. ( 5 ) LACK of proper perspective, some undue emphasis on minor points, some impulsive reaction to an event surcharged with emotion, might happen on account of the tilt in necessary thinking of either the counsel or the Judge. That is where, coolness and composure are required to be retained by either side to see through the smoke-screen of these momentary passions. That is where, coolness and composure are required to be retained by either side to see through the smoke-screen of these momentary passions. It is no doubt true that the negligence of law would acquire the rare qualities of scepticism, a capacity to discern and see things with cold logic and realism, bereft of all emotions. Such things cannot, in my considered view, flout the very judicial atmosphere and would lead to travesty of justice invariably. It is inherent in the system of administration of justice that momentary passions will not ultimately weigh either with the Counsel or with the Judge and the system ensures that either one of them, sooner or later, would come to senses and start thinking with all necessary composure. Such things cannot be seriously taken so as to justify the apprehension, which is not otherwise real and genuine that the party may not get justice before that Court. In the absence of any serious allegation, which imperils administration of justice, these minor things cannot, at all, be the considerations for the Court in transfer petitions of this sort. No general convenience of the parties or witnesses is involved in this case, nor it is expedient for the ends of justice to effect transfer. ( 6 ) UNDER the circumstances, the transfer petition merits no consideration and deserves to be dismissed. In the result, the appeal dismissed.