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2004 DIGILAW 663 (MP)

Archana Gupta v. State of M. P.

2004-08-13

S.L.JAIN

body2004
JUDGMENT By this application under section 407 CrPC applicant Smt. Archana Gupta is seeking transfer of Sessions Trial No. 285/2003 State of M.P. v. Sunder Swaroop Asthana from the Court of District and Sessions Judge, Bhopal to any other Court in the district or any other district of State of Madhya Pradesh. Mahila Police station, Bhopal presented a charge sheet against non-applicant No.2 Sunder Swaroop Asthana for taking cognizance of offences punishable under sections 376, 342, 506, 507 and 419 of the IPC. The investigation was initiated on the basis of FIR lodged by the applicant. The offence being triable by the Court of Session, Judicial Magistrate First Class, Bhopal committed the case to the Court of Session, Bhopal. The Sessions Judge in November 2003 framed a charge against the non-applicant NO.2-accused for offences punishable under sections 376 and 506 of the IPC. After framing of the charges, the trial commenced and witnesses were examined. It is alleged by the applicant that on 13.4.2004 she along with her advocate was present before the trial Court. On that day the case was fixed for defence evidence. Defence witness Smt. Usha Tiwari did not appear on the said date before the trial Court. On the very day respondent No. 2-accused filed an application before the trial Court to direct that the applicant should not remain personally present in the Court on every date. Copy of this application was supplied to the counsel for the applicant. The applicant has also alleged that on 13.4.2004, the reader of the Court informed her and her counsel that the case has been adjourned and fixed for 24.4.2004. On 24.4.2004 the applicant along with her counsel and his junior Roopesh Sahu appeared before the trial Court. The applicant has alleged that on 24.4.2004, she was flabbergasted to know that the defence witness was already examined 22.4.2004. Trial Court heard the arguments on 23.4.2004 and the case was fixed for judgment on 26.4.2004. In these circumstances, the applicant wishes to move an application before the High Court for transfer of the case to any other Court. The applicant has also alleged that in these circumstances, she apprehends that she would not get fair trial and justice in the Court of Sessions Judge, Bhopal and therefore, the case may be transferred to any other Court within Bhopal District or any district of State of Madhya Pradesh. The applicant has also alleged that in these circumstances, she apprehends that she would not get fair trial and justice in the Court of Sessions Judge, Bhopal and therefore, the case may be transferred to any other Court within Bhopal District or any district of State of Madhya Pradesh. Non-applicant No.2 combated the allegations made in the petition. In reply to the petition, non-applicant No.2 has stated that order sheet dated 13.4.2004 was dictated by the learned Sessions Judge himself to the Stenographer of the Court and only after appending his signature, he handed over the file to the Court reader for posting the case in the daily diary and for the perusal of the parties. The accused by mistake mentioned the date 24.4.2004' under his signature instead of 22.4.2004 but immediately corrected it at the hint of his lawyer. His counsel also signed the order sheet. The order sheet was perused by applicant and her counsel also. It is put forth by the non-applicant-accused that on 22.4.2004 defence witness was not examined. In fact on that date Usha Tiwari, investigating officer was cross examined by the defence who was recalled under section 311 of the CrPC for production of copy of rojnamcha Sanha. The non-applicant No.2-accused has filed the copy of deposition of DW 4 Usha Tiwari. It is also averred by the non-applicant NO.2-accused that the present applicant has sustained no prejudice at all as she had no role in the hearing because the prosecution was conducted by the State Counsel. Comments of Sessions Judge, Bhopal have been obtained. In his comments, the learned Sessions Judge has stated that on 11.2.2004, the applicant moved an application under section 302 CrPC before his predecessor for permission to assist the Public Prosecutor. This application remained undecided. However, the complainant along with her advocate appeared on 26.2.2004, 5.3.2004 and 15.4.2004 and her presence was recorded in the order sheets by his predecessor. Learned Sessions Judge in his comments submitted that the case was placed before him on 22.3.2004 for the first time and on that date, the complainant and her advocate were not present. Statement of accused under section 313 CrPC was recorded on that date and the case was fixed for defence evidence. Complainant along with her advocate appeared before him in the case and their presence was recorded on 2.4.2004, 8.4.2004 and 13.4.2004. Statement of accused under section 313 CrPC was recorded on that date and the case was fixed for defence evidence. Complainant along with her advocate appeared before him in the case and their presence was recorded on 2.4.2004, 8.4.2004 and 13.4.2004. The applicant and her counsel never prosecuted their application under section 302 CrPC and the same remained pending. As the application under section 302 CrPC remain undecided it was not obligatory for him to ensure the presence of applicant on each date and not to proceed in her absence. Learned Sessions Judge in his comments specifically stated that on 13.4.2004, the case was adjourned for 22.4.2004 and this date was noted by the accused and his counsel. On 13.4.2004, the complainant was present along with her counsel Shri Alok Sharma but his junior counsel Shri Roopesh Sahu did not appear. On 22.4.2004 the complainant and her counsel did not appear in the Court when the case was taken up and as such their presence was not recorded in the order sheet. The case was fixed for final arguments on 23.4.2004 and the arguments were heard on that date. On these dates also neither the complainant nor her counsel appeared. After hearing the arguments, the case was fixed for judgment on 26.4.2004. Learned Sessions Judge also commented that on 24.4.2004, the complainant along with 8 to 10 women appeared in the Court and tried to put hindrance in working of the Court with a view to mount pressure on the presiding judge. When the applicant made an application on 24.4.2004, the delivery of judgment was deferred. The learned Sessions Judge has stated in his comments that he does not harbour any prejudice against any of the parties nor there is pressure of any sort from any corner. However, learned Sessions Judge has submitted that he has no objection if the case is transferred to any other Court. I have heard learned counsel for the parties and perused the material on record. From the material on record, it appears that an application under section 302 CrPC was filed by the applicant before the predecessor of the present presiding judge praying for permission to assist the prosecution but as this application was not prosecuted, it remained undecided. I have heard learned counsel for the parties and perused the material on record. From the material on record, it appears that an application under section 302 CrPC was filed by the applicant before the predecessor of the present presiding judge praying for permission to assist the prosecution but as this application was not prosecuted, it remained undecided. Unless the application was allowed, it was not obligatory for the Sessions Judge to make any attempt to seek the presence of the petitioner or her counsel at the time of hearing of the case and to send for the counsel for the applicant. If the applicant wanted to remain present at the time of hearing, it was the duty of the applicant or her counsel to appear when the case was called. A perusal of the photo-copy of the order sheet dated 13.4.2004 reveals that at the time of dictating the order .applicant and her counsel were present. The order sheet reveals that the case was fixed for 22.4.2004. There is no overwriting in the date and therefore, it cannot be said that the date was subsequently changed. It is true that below the signature of the accused, the date of next hearing has been mentioned, wherein there is overwriting but the same has been explained by non-applicant No.2. The order sheet is also signed by the counsel for the applicant wherein the next date has been mentioned as 22.4.2004, therefore, it cannot be said that the next date fixed on 13.4.2004 was 24.4.2004. It was the duty of the applicant and her counsel to read the order sheet before leaving the Court and to put the signature in the margin. There is no material on record on the basis of which, it can be said that on 13.4.2004, the case was fixed for 24.4.2004. All official acts are deemed to be regularly performed. When the order sheet dated 13.4.2004 reveals that the case was fixed for 22.4.2004 in the absence of any material circumstance to rebut the presumption, it cannot be said that the case was fixed for 24.4.2004. Therefore, the allegation of the applicant that the case was fixed for 24.4.2004 does not appear to be true. An application for transfer of a case cannot be allowed on imaginary ground having no basis at all. Therefore, the allegation of the applicant that the case was fixed for 24.4.2004 does not appear to be true. An application for transfer of a case cannot be allowed on imaginary ground having no basis at all. It is true that it is of paramount importance that the parties arraigned before the Courts, should have confidence in the impartiality of the Courts but it is only where there is reasonable ground for apprehension that this Court will transfer the case. In order to allow the transfer of the case, it must appear to the High Court and not to the party that fair and impartial trial shall not take place. In the facts and circumstances of this case, it does not appear to this Court that fair and impartial trial shall not take place. The learned counsel for the applicant submitted that since the applicant moved a transfer application against judge, there is every likelihood of prejudice in the mind of the presiding judge. The contention cannot be accepted. Merely because a transfer application has been moved against the judge, he cannot be said to be unnecessarily prejudiced and if transfer application were to succeed on this ground alone all transfer applications will have to be allowed. It is not sufficient for the applicant merely to allege that he/she will not get an impartial trial before the Court in which the case is pending. He/she must place before the High Court facts which give rise to such apprehension. The applicant will not get a transfer by making an application containing unfounded allegations against the Judge and then representing that in view of his making such allegations he cannot expect to get justice from the same judge. What is reasonable apprehension is to be decided in each case with reference to the incident of that case and surrounding circumstance. The apprehension entertained by the applicant does not appear to be reasonable. In the circumstance of the case, it does not appear to this Court that fair and impartial trial will not take place in the Court of Sessions Judge, Bhopal. The application is, therefore, dismissed. The trial Court shall proceed with the case in accordance with law.