Research › Search › Judgment

Chhattisgarh High Court · body

2006 DIGILAW 395 (CHH)

MOHD. JAVED v. STATE OF C. G.

2006-08-07

S.K.SINHA

body2006
ORDER Sunil Kumar Sinha, J. ;- 1. This petition is filed by the.accused persons for transfer of Sessions Trial No.311/2005 pending in the Court of First Addl. Sessions Judge (Fast Track Court), Kanker. The trial relates to murder of one Ravi Shrivastava, who was said to be an Ex-President of local Municipal Committee and resident of Kanker, Distt. North Bastar (C.G). 2. Brief facts are that on 22.4.2005 at about 20 hours, the complainant Matin Khan and deceased Ravi Shrivastava were traveling on a Motor Cycle in town Kanker. When they reached on a place known as Gad Pichwari turn, two unknown persons came from their back side on another Motor Cycle and fired two gun shots on Ravi Shrivastava. Ravi Shrivastava was taken to the Hospital where he succumbed to gun shot injuries. The police registered a case u/s 302/34 IPC read with sections 25 & 27 of the Arms Act. During the course of investigation, it was found that the matter relates to contract killing. It is stated that the applicant Javed entered into a criminal conspiracy with the co-accused Raju Gosai and Wasim Khan for getting Ravi Shrivastava murdered. The motive for commission of the crime is said to be an incident in which Ravi Shrivastava and Matin Khan had abused one Gulam Bhai on certain previous occasion. Gulam Bhai is the father of the applicant Mohd. Javed. It is stated that on account of insult of his father, applicant Mohd. Javed entered into criminal conspiracy with the other two applicants and they were contracted for killing Ravi Shrivastava at Rs.5 lakhs. Further case of the prosecution is that firstly, these two applicants Raju Gosai and Wasim Khan contacted one Manoj Sahu and when Manoj Sahu refused to do this work, they approached the other co-accused persons namely Panuna @ Paramjeet of Raipur and Mangal Singh of Bhilai and the contract was settled at Rs. 2,50,000/- between them. On this contract, Mangal Singh, Pamma Sardar, Raju Khanjar and Rajesh Arora came to Kanaker from Raipur and ultimately after finalizing their plan on 22.4.2005 accused Mangal Singh with the help of another person, who was driving the Motor Cycle murdered the deceased. 3. The allegations in the transfer petition are that the deceased namely Ravi Shrivastava was an influential person of Kanker city. 3. The allegations in the transfer petition are that the deceased namely Ravi Shrivastava was an influential person of Kanker city. Presently, the wife of the deceased namely Smt. Arti Shrivastava is the president of Municipal Committee, Kanker and the family of the deceased is in the political arena of the town, therefore, this case has generated a great excitement and tension in the small town like Kanaker, which is having a population of about 30,000. Further allegations are that there has been a wide publicity in the media about this case. Many local newspaper clippings have been annexed with the petition and on this, a ground has been taken that the accused/applicants, are undergoing a media trial and they would not get impartial and fair trial in the court at Kanker. A very specific allegation is made vide para 13 of the petition that whenever the accused persons are taken to the court, crowd assembles near the premises of the Court and they start shouting and raising slogans. According to the allegations, the crowd mostly is comprised of the followers of the deceased Ravi Shrivastava and his wife Arti Shrivastava and they raise slogans like "give death sentence to the murderers", "punish them". It is further alleged that a large police force is deployed in the court premises to tackle the situation like above. Some photographs, have also been filed alongwith the petition. It is also alleged that the lives of accused persons are in danger of being attacked by the mob and whenever the accused persons are brought to the court for hearing, the crowd uses filthy language against them and threatens them with dire consequences and the atmosphere of the Court becomes tense. It is stated that for security reasons, the accused persons were once transferred from Kanker Jail to central Jail, Jagdalpur. It is also alleged vide Para 17 that the lawyers at Kanker, who deal with the criminal matters, have refused to defend the accused persons and they have managed a lawyer from Raipur to defend their case. During the course of arguments one more fact was added by Senior counsel Shri P. Diwakar that in between 19.6.2006 and 20.6.2006, a close relation of accused Mohd. Javed has also been murdered at Kanker which, according to learned counsel, is in connection with same event. During the course of arguments one more fact was added by Senior counsel Shri P. Diwakar that in between 19.6.2006 and 20.6.2006, a close relation of accused Mohd. Javed has also been murdered at Kanker which, according to learned counsel, is in connection with same event. They have prayed that on account of surcharged atmosphere and tension prevailing at Kanker and the same being not conducive of a fair and impartial trial, their case be transferred from Kanker to some other competent court, preferably Raipur, for its trial. 4. After filing of this transfer petition on 28.11.2005, an affidavit dt.20.6.2006 of the counsel for the applicants namely Shri Mohd. Hashim Khan, a practicing lawyer and resident of Raipur, was also brought on record through I.A.No. 1763/2006 on 21.6.2006. In the said affidavit, Shri Khan states about the scenario from 15.6.2006 to 21.6.2006. He stated that the aforesaid sessions trial was fixed for evidence from 15.6.2006 to 24.6.2006. On first two days, i.e., 15.6.2006 and 16.6.2006, the presiding judge was on leave, therefore, it came up for hearing on 19.6.2006. On this date, Shri Khan moved an application for adjournment of the case on the ground that some writ petition was filed before the High Court. He stated that before decision on this application, he went out from the court room, then he could hear that some persons were using filthy language and they were also saying "Mar Dalo Aur Koi Bachane Na Paye". He also heard the noise like "Bachao Bachao". He stated that the atmosphere of the court premises became unrest as if some riot is going on in the premises. He further stated that thereafter when the accused persons were called by the Court for hearing of the case from the lock-up of the court, the accused Pararnjeet @ Pamma and Rajesh Arora made complaint to the Court that some persons, who appear to be the family members of the deceased, had come to the lock-up and they have abused the accused persons. They also made complaint that the persons present in the Court premises, badly assaulted their family members who had come from Raipur to watch the proceedings of the court and this all was done in the presence of the local police. They said that they feel danger to their life. They also made complaint that the persons present in the Court premises, badly assaulted their family members who had come from Raipur to watch the proceedings of the court and this all was done in the presence of the local police. They said that they feel danger to their life. The counsel has further stated that in this situation he said to the court that he will not be able to conduct the trial and he expressed his desire to withdraw his power. On such expression, the court said to the accused persons that the witnesses are present and they should manage for some other lawyer, otherwise, a lawyer at the expense of the State would be engaged and the trial will be conducted. This was opposed by the accused persons, on which, the court granted time upto to 20.6.2006 for engaging a lawyer, failing which the trial shall be conducted in the above manner. 5. On these allegations, this court called a report/comments from the concerned sessions court. The additional sessions judge has made para-wise comments and has stated in para 4 that it is not correct to say that the atmosphere of the court is so tense that conduction of fair trial is not possible. He has further stated that he has never heard any such slogan as are alleged in para 13 of the petition. However, he stated vide Para 8 that for some days, the accused persons were kept in Jagdalpur jail. But, from 22.2.2006 they are kept in Kanker Jail itself except one accused namely Mangal who comes from Raipur Central Jail because he is involved in other cases pertaining to that area. He has also mentioned that one application was made by Assistant Jailor that the accused persons namely Mohd. Javed, Wasim Khan and Raju Gosai are trying to disturb the peaceful atmosphere in Kanker Jail and for this he had prayed that on account of security and also on account of availability of number of barracks in local jail, they should be shifted to central jail, Jagdalpur. On this only the accused persons were shifted to the said jail. Javed, Wasim Khan and Raju Gosai are trying to disturb the peaceful atmosphere in Kanker Jail and for this he had prayed that on account of security and also on account of availability of number of barracks in local jail, they should be shifted to central jail, Jagdalpur. On this only the accused persons were shifted to the said jail. About allegations pertaining to 19.6.2006 onwards, the additional sessions judge has stated vide para 17 of his report that on the said date, the witnesses Matin Khan and Shiv Bhan were present and Shri Hashim Khan expressed that there is danger to his life and also the life of accused persons and he will not be able to participate in the trial and on this the court expressed that in absence of a lawyer appearing, a defence counsel at the expense of the State would be managed. Vide para 18 he has stated that on 19.6.2006 on application being made by accused Rajeev Khanjar and Rajesh Arora that their family members have been assaulted by the supporters of deceased Ravi Shrivastava, a memo was sent to the concerned Station House Officer for necessary action and a copy thereof alongwith original application was sent to the Superintendent of Police, Kanker, for enquiry. Vide para 21 it is stated that on 20.6.2006, in absence of defence counsel, a lawyer from the panel namely Shri H.Y. Deo was engaged to file his memo of appearance and the evidence began in the case. 6. When the examination-in-chief of Mat in Khan was completed, Fahim Khan, Advocate, appeared in the court and filed his memo of appearance making an oral prayer that the cross examination of the witnesses be permitted to be done by Shri Hashim Khan. This oral prayer was allowed and the examination-in-chief of Mat in Khan (P.W.1), Shiv Bhan Singh (P.W2), Madan Mohan (P. W3) and Tulsi Ram (P.W4) were done and on this request, they were directed to remain present for cross-examination on the subsequent day. On 21.6.2006, junior advocate Shri Fahim Khan appeared and filed an application stating that there was a sad demise in the family of Shri Hashim Khan, therefore, the proceedings be adjourned which was rejected. Another application to stay the cross examination only, was made by the accused persons which was allowed and the examination-in-chief-of one more witness namely Naresh Bichia (P.W.5) was completed. Another application to stay the cross examination only, was made by the accused persons which was allowed and the examination-in-chief-of one more witness namely Naresh Bichia (P.W.5) was completed. Meanwhile, it was informed to the court that the further proceedings have been' stayed by this Court in transfer petition (M.Cr.C.No.3379/2005) and the proceedings are stayed till date. 7. I have heard learned counsel for the parties at length and have also perused the records of the transfer petition. 8. Learned senior counsel for the petitioners placed reliance on a decision of Nagpur High Court reported in Annubeg Mukimbeg Musalman and another Vs. Emperor. In this said case, the said High Court, making a reference of Serjeant Vs. Dale and The King Vs. Sussex Justices Ex Parte Me Carthy, stated well established principles as follows : (i) One important object, at all events, is to clear away everything which might engender suspicion and distrust of the tribunal, and so to promote the feeling of confidence in the administration of justice which is so essential to social order and security. (ii) The law, in laying down this strict rule, has regard not so much perhaps to the motives which might be supposed to bias the judge as to the susceptibilities of the litigant parties. (iii) It is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seem to be done. (iv) Nothing is to be done which creates even a suspicion that there has been an improper interference with the course of justice. 9. In MS. Prakasa Rao Vs. (iii) It is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seem to be done. (iv) Nothing is to be done which creates even a suspicion that there has been an improper interference with the course of justice. 9. In MS. Prakasa Rao Vs. State of Andhra Pradesh4, the High Court of Andhra Pradesh while dealing with an application for transfer of case by accused, Circle Inspector of Police, charged with murder of a Doctor, while conducting enquiry about kidnapping of minor girl belonging to same family, observed that when thousands of people had been gathering at court premises and atmosphere became hostile and antagonistic to accused and there were threatening letters to advocates of accused to withdraw from the case and also threatening letters were received by the accused to the effect that the Sessions Judge of district was their man and result would be in their favour, and relatives of the accused also received threatening letters and newspaper contained scathing criticism of police personnel, then in such a situation, it was held that the circumstances created apprehension in the mind of accused regarding the trial with trappings of equanimity and cool atmosphere and transfer of case must be ordered to Sessions Court of another district. 10. In the case on hand, the paper clipping dated 11th of June, 2005 placed at page 19 would show that there is a mention about gathering of a large number of people in the court premises and when accused Mohd. Javed, Wasirn Khan, Raju Gosai and Pamma sardar were produced before the Court, they started raising slogans like "Aropiyon Ko Fansi Do". Likewise, another paper clipping dated 161h of Sept. 2005, which is of Hari Bhumi, mentions that when accused Mangal Singh was produced before the court, the mob which has gathered in the court premises started slogans like "Mangal Singh Ko Mara" and they had also chased him upto some distance. The photograph of the mob is also shown in the reporting. Like wise in another newspaper namely Bastar Bhaskar dated 14th of May 2005, it is mentioned that when the accused persons were brought before the court on 13th May 2005, people gathered in hundreds of number and they were raising slogans like "Arapiyon Ko Fansi Do". The photograph of the mob is also shown in the reporting. Like wise in another newspaper namely Bastar Bhaskar dated 14th of May 2005, it is mentioned that when the accused persons were brought before the court on 13th May 2005, people gathered in hundreds of number and they were raising slogans like "Arapiyon Ko Fansi Do". The photographs, said to be the photographs of court premises, have also been produced vide Annexure A-2, (page 26 & 27 of paper book) which also show about gathering of the mob in the court. These events are the events of primitive stage of the case when the accused persons were arrested and they were being brought before the court for remand etc. 11. It appears that there was a tense atmosphere which shows that the present is a sensitive manner of town Kanker and as and when the people get a chance to see the accused persons, they take that chance and they gather in and around the court premises and they raise slogans like that. These are the events which have taken place prior to filing of the transferpetiti6n. If the affidavit of the defence counsel and the comments of the sessions judge are seen, then, the scenario from 15.6.2006 to 21.6.2006 comes before this court. This was the block fixed by the Sessions Court for recording evidence and according to the defence counsel, the' atmosphere of the court was altogether tense and the persons who have gathered in the court premises, they have not only allegedly threatened the accused persons in the lock-up of the Court, but also they used filthy language against the defence counsel, who was an out station lawyer, appearing in the case. Though the Sessions Judge has not made any comment on personal events of Shri Hashim Khan, but the order sheets of these dates would show that the proceedings were not drawn in usual and ordinal)' manner which are usually drawn in a normal sessions case. About beating the relations or supporters of the accused persons, the newspaper report is brought on record as the additional documents vide I.A.No. 1751/2006 on 20.6.2006. In photographs, it can be seen that few persons are being beaten with legs by some persons and the police personnel are also present there. 12. About beating the relations or supporters of the accused persons, the newspaper report is brought on record as the additional documents vide I.A.No. 1751/2006 on 20.6.2006. In photographs, it can be seen that few persons are being beaten with legs by some persons and the police personnel are also present there. 12. After going through the material produced before this court, it appears to me that since the matter is a recent sensitive matter of the area and the allegations are that the contract killers were engaged to cause the murder of the deceased, the general public of the area out of curiosity, always appear in the court for having an opportunity to see the accused persons on whom the charges of murder and criminal conspiracy have been leveled. Prima facie, there appears to be no ulterior motive in such a gathering, but when the unplanned gathering takes a shape of mob, nothing can be expected in planned manner and after gathering in the court premises, the mob after seeing the accused persons gets excited raises slogans etc., showing their opposition against the alleged acts of the accused. 13. The question arises as to whether a trial should be allowed to continue at the same place or is it expedient for the ends of justice that it should be ordered to be transferred to some other place? On the basis of material on record and also on the basis of affidavit and counter: affidavit of the parties, I am satisfied that ' it is a case in which the accused persons may have reasonable apprehension that they may not get a fair trial and grounds for such apprehension are made out. Presently, there are no allegations made against the court and the allegations are only about the atmosphere created in the court by continuous mob action and looking to the principles of fundan1ental importance that justice should not only be done, but should manifestly and undoubtedly be seem to be done, I deem it proper to transfer this case from this particular place to another nearby place where such scenario like public agitation and protest in the court premises may be avoided and the trial may be conducted in the normal congenial and ideal' atmosphere which is befitting to the gravity of a sessions trial in which question of awarding capital punishment is involved. 14. 14. In the facts and circumstances, as a nearer sessions court available from Kanker, (north Bastar) is Jagdalpur, District Bastar, I deem it proper to transfer this case to the said court and I do it accordingly.' 15. In the result, the petition is allowed. It is directed that this Sessions Trial No.3 11/2005 pending in the Court of First Addl. Sessions Judge (Fast Track Court), Kanker, be transferred to the court of Sessions Judge, Jagdalpur, District Bastar for its disposal in accordance with law. 16. The Registry is directed to send copies of this order immediately to both the courts for further action. In view of the above the interim order of stay granted on 21.6.2006 stands vacated. Application Allowed.