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2003 DIGILAW 324 (HP)

BUDHI SINGH v. NIRAJ KUMAR

2003-11-10

M.R.VERMA

body2003
JUDGMENT M.R. Verma, J.—The petitioner has filed the present application under Section 407 of the Code of Criminal Procedure (hereafter referred to as the Code) for transfer of Criminal Revision No. 13/10 of 2003 from the Court of learned Sessions Judge, Bilaspur presided over by Mr. Shamsher Singh to any other court. 2. Brief facts relevant for the purpose of disposal of the present application are that on a complaint submitted by S.H.O., Police Station, Sadar, Bilaspur, under Sections 506 and 507 I.P.C. against respondent No. 1, the learned Judicial Magistrate 1st Class, Bilaspur, on being satisfied that there are sufficient grounds to proceed against respondent No. 1, directed issue of summons to him vide order dated 26.11.2002. Aggrieved by the summoning order, respondent No. 1 preferred a revision petition in the Court of the learned Sessions Judge, Bilaspur, which is sought to be transferred to some other Court. 3. Case of the petitioner for transfer of the revision petition is that the proceedings in the case were initiated through respondent No. 3, who, initially lodged the report with the police but the petitioner is affected and interested party in the success of the complaint filed against respondent No. 1, inasmuch as respondent No. 1 had issued threats to the life of the petitioner on telephone. His apprehension is that the learned Sessions Judge, Bilaspur will not decide the case impartially, with the result that the petitioner will not get a fair and impartial trial of the case. The reasons giving rise for such an apprehension, as stated in the application, are that the petitioner in the year 1995 was posted as District & Sessions Judge, Shimla and worked as such till 1997. During this period, Mr. Shamsher Singh was posted as Additional District and Sessions Judge, Shimla and had strained relations with the petitioner. He*filed a complaint against the petitioner in the High Court regarding misuse of a common pool vehicle which was finally not found true and the petitioner believes that Mr. Shamsher Singh must be having grudge and animus against the petitioner. 4. Notice of the application was confined only to respondents 1 and 2, as the complaint is admittedly being prosecuted by the State (respondent No. 2) through its Assistant Public Prosecutor. Shamsher Singh must be having grudge and animus against the petitioner. 4. Notice of the application was confined only to respondents 1 and 2, as the complaint is admittedly being prosecuted by the State (respondent No. 2) through its Assistant Public Prosecutor. Respondents 1 and 2 did not file any reply to the application, but the maintainability and contents of the application were not conceded to be either of them. 5. Since there were allegations of bias /animus against Mr. Shamsher Singh, therefore, his comments were called. In his comments, he has denied the alleged strained relations with the petitioner. It is, however, admitted by him that the petitioner was the controlling officer of the common pool vehicles meant for use by the Additional District and Sessions Judge and other Judicial Officers at Shimla. It was noticed that the petitioner had been misusing the pooled vehicle for his private work and it was not provided to the Judicial Officers for use on one pretext or the other, whereas in the log book the vehicle was shown as being used by the Judicial Officers. Entry about this misuse was posted by him in the log book showing misuse of the vehicle by the petitioner to the extent of 130 kms. which the petitioner admitted subsequently and that the compelling circumstances led him to report the matter to the High Court. He has, however, denied that he entertains any grudge or animus against the petitioner. 6. I have heard the learned Counsel for the parties and have also gone through the records. 7. One of the questions involved in the matter is whether the petitioner has the locus standi to file the present application because he is neither the informant nor the complainant in the case which is being prosecuted by the State. He is named as a witness in the complaint and the alleged threats are stated to have been extended to him by respondent No. 1. Against this background, it was contended by the learned Counsel for the petitioner that the petitioner, being the victim of the threats and the person interested in securing justice for the offence committed against him, has the locus standi to maintain the present application. 8. Against this background, it was contended by the learned Counsel for the petitioner that the petitioner, being the victim of the threats and the person interested in securing justice for the offence committed against him, has the locus standi to maintain the present application. 8. There cannot be any dispute that in a case instituted by the State either on the basis of a police challan or on the basis of a complaint by a Station House Officer, the State through its agencies or the complainant or the person who set the law in motion by bringing the commission of the offence to the notice of the investigating agency and the accused in any case, are competent to maintain application for transfer in case they apprehend that a fair and impartial trial will not be done in the case by the Judicial Officer seized of the matter. The petitioner, admittedly, does not hold any of the aforesaid capacities, but the alleged threat was extended to him. Thus, being the victim of the alleged offence, he is undoubtedly an interested party in the cause. Therefore, he is an aggrieved and interested party for the purpose of maintaining the present application. 9. On merits, it was contended by the learned Counsel for the petitioner that Mr. Shamsher Singh who is seized of the revision petition, had admittedly complained against the petitioner regarding the alleged misuse of the common pool vehicle, therefore, it follows that he entertains malice and ill will against the petitioner, and thus the apprehension of the petitioner that the revision petition will not be fairly and impartially disposed of by the Court below, is well founded. Therefore, keeping in view the maxim that "justice should not only be done but it must appear to have been done", the revision petition deserves to be transferred to any other Court of competent jurisdiction. 10. The learned Deputy Advocate General submitted that respondent-State has nothing to say in the matter except that it has no apprehension about the impartiality and fairness of the concerned Judge. 11. 10. The learned Deputy Advocate General submitted that respondent-State has nothing to say in the matter except that it has no apprehension about the impartiality and fairness of the concerned Judge. 11. The learned Counsel for the respondent No. 1 has submitted that the petitioner having taken benefit of his position he was holding, dragged respondent No. 1 into unwarranted litigations, with a view to harass and humiliate him and he has no apprehension about miscarriage of justice in case the revision petition is heard and disposed of by the Sessions Judge seized of the matter or by any other Court in Himachal Pradesh. 12. In exercise of the powers conferred on it by Section 407 of the Code, a High Court can transfer a criminal case from one Court to another, when any of the following conditions are fulfilled: (i) that a fair or impartial inquiry or trial cannot be held; (ii) that some question of law of unusual difficulty is likely to arise; (iii) that an order under Section 407 of the Code is required to be passed by any provision of the Code; (iv) that it will tend to the general convenience of the parties or witnesses; or (v) it is expedient for the ends of justice. 13. It may be pointed out that as a rule, High Court will be reluctant to transfer a criminal case from one Court to another, unless there are exceptional reasons. The present application has been filed on the ground of apprehension of the petitioner that a fair and impartial inquiry or trial cannot be held in the court of Mr. Shamsher Singh. The basic consideration to come to a conclusion whether a fair and impartial inquiry or trial cannot be held before the Court seized of the matter is whether there is a reasonable apprehension in the mind of the party applying for transfer, but it is not every apprehension that should be taken into consideration. However, where the apprehension is of reasonable character, there, notwithstanding that there may be no real bias in the matter, the fact of incidents having taken place to raise such apprehension, ought to be a ground for allowing a transfer. 14. However, where the apprehension is of reasonable character, there, notwithstanding that there may be no real bias in the matter, the fact of incidents having taken place to raise such apprehension, ought to be a ground for allowing a transfer. 14. In the case in hand, it is admitted case that the learned Sessions Judge, who is seized of the matter, had brought to the notice of the High Court the misuse of the official pooled vehicle by the petitioner in his capacity as Sessions Judge, as he then was. Therefore, the question arises as to whether the act of Mr. Shamsher Singh, as Additional District and Sessions Judge, Shimla, in making a report about the misuse of the official vehicle by the petitioner and not providing it to the Judicial Officers for whose use it was meant, is an act on the basis of which an apprehension can reasonably be entertained that Mr. Shamsher Singh must be having grudge and animus against the petitioner? Apparently and admittedly/ report/complaint made by Mr. Shamsher Singh was in his official capacity. It is not spelt out in the petition by the petitioner that any action against Mr. Shamsher Singh by the High Court for making such a report against him was taken. In case being a Junior Judicial Officer he had made a false complaint against his senior officer in the discharge of his official duties, invariably action ought to have been taken by the High Court against Mr. Shamsher Singh, which is not the case of the petitioner. In the absence of such an action, it cannot be said that the report was mala fide, biased or because of any grudge or animus. The alleged incident dates back by about six years. It was not an individual action of Mr. Shamsher Singh against the petitioner. Had the complaint been made by the petitioner against Mr. Shamsher Singh, perhaps that could afford a reasonable ground to the petitioner to apprehend that he may harm him, but since he was not the complainant but the person complained against, that too concerning official matters, it appears improbable that a person holding the status of a Sessions Judge would entertain any grudge or animus against the person against whom he reported certain facts to the higher authorities years ago, 15. During its pendency before Mr. During its pendency before Mr. Shamsher Singh, the revision petition has come up thrice and he has passed three orders thereon. I have carefully gone through the orders and nothing therein reflects any bias or prejudice on the part of the Judge. The State was represented on two dates when the informant respondent No. 3 was also present. It is nobodys case that on these dates, Mr. Shamsher Singh had acted or conducted in a manner from which it may even be remotely inferred that he will not decide the revision petition fairly and impartially. The petitioner himself has not been present before him on any of the dates of hearing to assess the act and conduct of the Judge dealing with the matter. Therefore, this Court is of the prima-facie opinion that Mr. Shamsher Singh is not likely to be affected by any bias, prejudice or animus against the petitioner in deciding the revision petition. 16. The above conclusion of this Court, however, is based on its own reasoning. The fact, however, remains that Mr. Shamsher Singh made a complaint against the petitioner about misuse of vehicle and not providing the vehicle for being used by the Judicial Officer for which it was meant. The allegations apparently are of serious nature. There is nothing on the record to clearly point out as to what finally happened to the matter. Even in the comments of Mr. Shamsher Singh, it is not pointed out whether any action was taken against the petitioner. This past incident may reasonably create an apprehension in the mind of the petitioner that Mr. Shamsher Singh may not do justice to him in view of the aforesaid incident. As already said hereinabove, what matters in a case where transfer of a case is prayed for on the ground as inland is that where the apprehension is of a reasonable character, then notwithstanding that there may be no real bias in the matter, the fact of the incident having taken place raising such a reasonable apprehension is a ground for transfer, even if the High Court may not itself be of the opinion that an impartial trial cannot be held. This is so because of the cardinal principle of justice delibery system that justice should not only be done but it must appear to have been done. This is so because of the cardinal principle of justice delibery system that justice should not only be done but it must appear to have been done. Keeping in view this aspect of the legal position, I am of the view that the revision petition filed by respondent No. 1 in the Court of the learned Sessions Judge, Bilaspur, must be transferred for disposal to some other court of competent jurisdiction. 17. As a result, this petition is allowed and Criminal Revision Petition No. 13/10 of 2003 presently pending in the court of learned Sessions Judge, Bilaspur is transferred from his court to the court of learned Sessions Judge, Mandi. 18. The record of the criminal revision petition, which has been received in this Court be sent directly to the court of learned Sessions Judge, Mandi under intimation to the learned Sessions Judge, Bilaspur so as to reach the transferee court before 24.11.2003. In view of the stage of the proceedings before the trial Court, the learned Sessions Judge, Mandi is directed to dispose of the revision petition at an early date preferably within three months from the date of receipt of the records. 19. The parties through their learned Counsel are directed to appear before the learned Sessions Judge, Mandi on 24.11.2003.