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Madhya Pradesh High Court · body

2006 DIGILAW 275 (MP)

Punit Pandey v. State of M. P.

2006-02-17

A.K.SAXENA

body2006
ORDER 1. The petitioners have filed this application under section 407 of Code of Criminal Procedure, 1973 (hereinafter referred to as the 'Code') for transfer of criminal case No. 1712005, State of Madhya Pradesh v. Punit Pandey and others pending in the Court of Chief Judicial Magistrate, Raisen to the Court of any other district. 2. According to this application, the petitioner No.2 Smt. Kalpana Pathak is wife of Sandeep Pathak. Complainant Sandeep Pathak is an employee of District Court, Raisen. On 7.11.2005 some kind of incident had taken place in the Court premises of Raisen and an application was submitted by Sandeep Pathak to District Judge, Raisen in a pre-planned manner and the same was forwarded to police for registration of the case. After investigation, the charge-sheet was filed in the Court of Chief Judicial Magistrate, Raisen and thereafter, Sandeep Pathak managed his transfer to the Court of CJM. The charges were framed on 22.2.2005 and the case was fixed on 10.5.2005 for evidence, but the date was changed to 2.4.2005 by the Presiding Officer as the complainant of the case is posted in the same Court. 3. It is further alleged that the complainant has warned and threatened the petitioners that he would ensure their conviction and they will face the dire consequences if they will come to Raisen. The petitioners have reasonable and valid apprehension that they may not get fair trial and justice at Raisen because complainant of the case is posted in Raisen Court. The complainant of the case is also trying to influence the trial and the petitioners are feeling extremely unsafe due to repeated warning and threats given by the complainant. Therefore, it was prayed that the case may be transferred to any other district. 4. The learned counsel for the petitioners placed his reliance on the principles laid down in Rajinder Singh alias Manu and another etc. etc. v. State of West Bengal [ 2004 CrLJ 4023 ] and Deepak Shukla v. Smt. Savita Shukla [ 2002 (5) MPHT 534 ]. 5. On a perusal of record of Criminal Case No. 451/2005 (old No. 17/ 05) pending in the Court of Judicial Magistrate First Class, Raisen, I found that the charge-sheet was filed in the Court of Chief Judicial Magistrate and the charges were framed on 22.2.2005. 5. On a perusal of record of Criminal Case No. 451/2005 (old No. 17/ 05) pending in the Court of Judicial Magistrate First Class, Raisen, I found that the charge-sheet was filed in the Court of Chief Judicial Magistrate and the charges were framed on 22.2.2005. When the record was requisitioned by this Court, the CJM transferred this case to the Court of Judicial Magistrate First Class, Raisen on 8.9.2005 because the complainant is posted in his Court. Though it is not clear from the record as to when the complainant joined the Court of CJM, as an employee of Court even then, if the complainant of the case was posted in the Court of Chief Judicial Magistrate, the case should have been transferred then and there to other Court, but it was not done by the learned Chief Judicial Magistrate. Apart from that, on a perusal of order-sheet dated 22.2.2005 of this case I found that after framing of the charges under section 240 of the Code, the Court fixed the date for the examination of witnesses of prosecution but while doing so, the learned Chief Judicial Magistrate passed another order that if the accused persons of the case want to produce defence evidence, they shall file a list of witnesses so that continuity in the trial may be maintained. 6. The procedure for trial of warrant-cases has been provided in Chapter XIX of the Code. Section 240 of the Code provides as follows: "240. Framing of charge -- (1) If, upon such consideration, examination, if any, and hearing, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try and which, in his opinion, could be adequately punished by him, he shall frame in writing a charge against the accused. (2) The charge shall then be read and explained to the accused, and he shall be asked whether he pleads guilty of the offence charged or claims to be tried." It has been provided under section 242 of the Code that -- "(1) If the accused refuses to plead or does not plead, or claims to be tried or the Magistrate does not convict the accused under section 241, the Magistrate shall fix a date for the examination of witnesses. (2) The Magistrate may, on the application of the prosecution, issue a summons to any of its witnesses directing him to attend or to produce any document or other thing. (3) On the date so fixed, the Magistrate shall proceed to take all such evidence as may be produced in support of the prosecution: Provided that the Magistrate may permit the cross-examination of any witness to be deferred until any other witness or witnesses have been examined or recall any witness for further cross-examination." 7. It is nowhere provided under section 242 of the Code that before examination of prosecution witnesses, the accused shall be called upon to enter upon his defence. 8. Sections 243 and 313 of the Code deal with the stage of defence. According to the provisions of these sections, the accused can be called upon to enter upon his defence and to produce his evidence only after the examination of prosecution witnesses and after examination of accused as provided under section 313 (1) (b) of the Code. But, here in this case, the learned Chief Judicial Magistrate passed an order and asked the accued to enter upon his defence and to give list of defence witnesses before examination of prosecution witnesses and examination of accused, which is not in accordance with the above mentioned provisions of the Code. No doubt, due eagerness for dispensation of justice to the parties as early as possible, is very much commendable but, undue eagerness or hasty action to dispose of the case and that too against the established procedure, is not proper because it creates reasonable apprehension in the mind of the parties that they may not be able to have a fair and impartial trial or they may not get justice. The learned Chief Judicial Magistrate passed the order of production of list of defence witnesses in haste and it shows that the apprehension created in the mind of the petitioners is well founded. 9. The learned counsel for the petitioners has argued that initially, the petitioners were given the date 10.5.2005 but it was changed to 2.4.2005 and the District and Sessions judge forwarded the complaint of Sandeep Pathak to Police Station Kotwali, Raisen and these actions create apprehension in the mind of the petitioners that they may not get fair trial. These two grounds are not sufficient to transfer the case. These two grounds are not sufficient to transfer the case. It is the duty of District and Sessions Judge to forward the complaint (if felt necessary) to police if any incident took place in the Court premises. Apart from that, if an early date was fixed or the date is changed by the trial Court in presence of the parties, it does not mean that the Judge is biased. 10. As earlier stated in this order that there was some undue eagerness on the part of the trial Court by asking the petitioners to enter upon the defence at the initial stage of the case and it is also a matter of surpise that the Chief Judicial Magistrate failed to transfer the case as early as possible to other Court when the complainant of the case was posted in his Court, therefore, these two grounds are sufficient to transfer the case. These grounds are also sufficient to infer that the petitioners have sufficient reason to apprehend that they may not be able to get fair and impartial trial in the Courts of Raisen. 11. For the aforesaid reasons, the petition filed under section 407 of the Code is allowed and it is directed that the Criminal Case No. 451/05 (State of Madhya Pradesh v. Punit Pandey and others) pending in the Court of Judicial Magistrate First Class, Raisen is withdrawn from his Court and transferred to the Court of Chief Judicial Magistrate, Bhopal for disposal according to law. The petitioners are directed to appear in the Court of Chief Judicial Magistrate, Bhopal on 9th March, 2006. A copy of this order be sent to the trial Court as well as to the Court of Chief Judicial Magistrate, Bhopal.