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2007 DIGILAW 1350 (PAT)

Md. Shahabuddin v. State Of Bihar

2007-08-14

SHYAM KISHORE SHARMA

body2007
Judgment 1. Through this writ petition, the petitioner seeks a direction of this Court for quashing the S.O. 80 dated 7th June, 2006 contained in Notification No. A/Act-01/2006 Part-1452/J published in Bihar Gazette (Extraordinary) dated 7.6.2006, issued by the Secretary to the Government, whereby in exercise of the powers conferred by Section 11 of the Code of Criminal Procedure, 1973 and in consultation with the High Court of Judicature at Patna, the Government of Bihar has ordered to establish a Court of Judicial Magistrate of 1st Class inside the District Jail, Siwan for holding its sitting for trial of cases pending against the petitioner. 2. Further prayer is for issuance of a writ in the nature of Certiorari for quashing the S.O. 82 dated 7.6.2006 as contained -in Notification No. A/Act-01/2006 Part-1453/J published in Bihar Gazettee (Extraordinary) dated 7.6.2006, issued by the Secretary to the Government, whereby in exercise of power conferred by Sections 13(1) and 14(1) of the Bengal, Agra and Assam Civil Courts Act, 1887 and sub-section (6) ot Section 9 of the Code of Criminal Procedure and in the light of Notification No. 184A, dated 20th May, 2006 issued by the High Court of Judicature at Patna, the Government of Bihar has directed that the Court of Additional District and Sessions Judge of Siwan Sessions Division shall now hold its sitting inside District Jail, Siwan for trying the case relating to the petitioner and further for a direction to the High Court to produce Notification No. 184A dated 20th May, 2006. 3. The petitioner has contested the parliamentary election and he is representing the Siwan Lok Sabha Constituency since 1996. He was remanded to judicial custody on 13.8.2003 in connection with Siwan P.S. Case No. 8 of 2007 though the petitioner was not wanted in any other case but he continued to remain behind the bar till 18.2.2006 when he was granted bail by this Court on 10.2.2005, At the instance of the then District Magistrate of Siwan a number of cases were lodged against him. He was branded as anti-social element by the then District Magistrate and was detained in Beur Jail, Patna under the provisions of the Bihar Control of Crimes Act which was subsequently set aside. Allegation is that due to revengeful attitude, the then District Magistrate, Siwan implicated the petitioner in a number of cases. He was branded as anti-social element by the then District Magistrate and was detained in Beur Jail, Patna under the provisions of the Bihar Control of Crimes Act which was subsequently set aside. Allegation is that due to revengeful attitude, the then District Magistrate, Siwan implicated the petitioner in a number of cases. On 7.6.2006, the trial of the petitioner was shifted to District Jail, Siwan vide notification no. 1453J and 1.452J. 4. The petitioner has challenged and assailed the orders and the notification as contained in Annexures 1 and 2 on the ground that the respondents had no authority to change the venue because that will obstruct the right of a persons to have free access to the Court. Fundamental right of equality and fair trial as granted under Articles 14 and 21 of the Constitution of India has been violated. The petitioner has been denied the access of the aforesaid right provided under the Constitution of India. The treatment meted to the petitioner who is languishing in jail by the respondents is unfair, arbitrary and in exercise of mala fide action of the State authorities. The constitution of Special Courts itself is nullity because the petitioner has not consented for establishment of Special Courts inside the Jail. No person is being allowed to watch the proceeding of the Court and the petitioner is facing a lot of difficulties and has no faith in the State authorities. 5. A counter affidavit has been filed on behalf of the respondents 5, 6 and 7 and a separate counter affidavit has been filed on behalf of respondent no. 3, the Registrar General, Patna High Court. 6. In the counter affidavit of the Patna High Court it has been mentioned that on consideration of letter received from the Law Secretary, Government of Bihar regarding the designation of Court of Sessions and Court of the Judicial Magistrate, 1st Class for expeditious trial of cases pending against the petitioner and for notification of Siwan Jail as a place of sitting for Sessions Court and Megisterial Court inside the jail for trial, the High Court resolved to designate one Court of Additional District and Sessions Judge as a Special Court for trying the cases triable by the Court of Sessions and one Court of Judicial Magistrate 1st Class. The High Court resolved that the Siwan Jail premises will be notified as a place of sitting of Sessions Court and Magisterial Court under the provisions of Sections 9(6) and 11(1) of the Code of Criminal Procedure vide decision dated 11th May, 2006 and 18th May, 2006. Accordingly the Court issued direction regarding appointment of two Special Courts. 7. On behalf of other respondents it has been submitted that the then District Magistrate has acted in discharge of his administrative duty and raided the house of the petitioner on complaint of some persons and found therein theft of electricity, illegal ammunitions manufactured in Pakistan, skin of killed deer alongwith the photographs of the petitioner and foreign currency. The petitioner is facing 26 cases for which trial is going on and those cases have not been instituted with revengeful mind. The petitioner is in judicial custody and he is being extended necessary security and privileges according to the Jail Manual and he is being provided all necessary medical and other facilities which should be given to him. The relatives of the petitioner had never applied for meeting with the petitioner inside the jail premises. Two witnesses have turned out to record their statement before the Special Court and prior to the institution of the Special Court no witness ever dared to record his statement as they were terrorized by the petitioner and his companions so they become hostile. Now witnesses are deposing freely with open mind. The Additional District and Sessions Judge has already decided three Sessions Trial Cases which are Sessions Trial No. 67 of 2004, Sessions Trial No. 59 of 2001 and Sessions Trial No. 67 of 2004. In Sessions Trial No. 320 of 2001, the prosecution has started its argument and in Sessions Trial No. 99 of 1997, the prosecution was to start its argument. In Sessions Trial No. 18 of 2007 which relates to Hussainganj P.S. Case No. 44 of 2005 for the recovery of 9 MM pistol and several other ammunitions three prosecution witnesses have been examined and they have supported the prosecution case. Sessions Trial Nos. 419 and 420 of 2006 have been amalgamated and charges have been framed. In Sessions Trial No. 441 of 2006 the victim is the Deputy Superintendent of Police who has alleged that the petitioner has tried to kill him by firing. Sessions Trial Nos. 419 and 420 of 2006 have been amalgamated and charges have been framed. In Sessions Trial No. 441 of 2006 the victim is the Deputy Superintendent of Police who has alleged that the petitioner has tried to kill him by firing. In Sessions Trial No. 287 of 2007 and 213 of 2006 the then Superintendent of Police has gone to raid the house of the petitioner. When the informant reached near the village of the petitioner then his private army started firing with AK 47 rifles due to which one police constable was killed, several other constables were injured and three vehicles of the police were burnt. In that case also, charges have been framed. Before the Court of the Judicial Magistrate three cases have been decided and 15 cases are pending before the Magistrate Court and most of the prosecution witnesses have been examined and are at advanced stage. The said courts are running smoothly. 8. Regarding non-participation of the persons it has been submitted that twenty advocates on behalf of the petitioner attends the Special Court. The petitioner himself is successfully participating in the trial and one retired Judicial Officer who is the relative of the petitioner comes to the Court daily to watch the proceeding and witnesses are attending the Court as such the proceeding of the Courts which are transparent. A list is annexed with the counter affidavit as Annexure-B to show that a number of persons are attending the proceeding of the Court on behalf of the petitioner. 9. There is no denial to the statement contained in Annexure-B by the petitioner. It is a list of the persons who have attended for watching the proceeding dated 26.7.2006. It appears that a number of persons are attending the Court and the apprehension of the petitioner does not appear to be correct that the persons are not being allowed to watch the proceeding. 10. Section 9 sub-clause 6 of Code of Criminal Procedure is being reproduced below: "The State Government shall establish a Court of Session for every session division. 10. Section 9 sub-clause 6 of Code of Criminal Procedure is being reproduced below: "The State Government shall establish a Court of Session for every session division. The Court of Sessions shall ordinarily hold its sitting at such place or places as the High Court may, by notification, specify; but if, in any particular case, the Court of Session is of opinion that it will tend to the general convenience of the parties and witnesses to hold its sittings at any other place in the sessions division, it may, with the consent of the prosecution and the accused, sit at that place for the disposal of the case or the examination of any witness or witnesses therein. 11. Section 11 of the Code of Criminal Procedure prescribes the establishment of the Court of a Judicial Magistrate by the Government in consultation with the High Court. 12. Obtaining of consent of both the parties may hamper the interest of justice. Convenience of one party was detrimental to other parties and Judge will become helpless in such a situation. The accused or other side may deny the consent. In such circumstances consultation with the High Court becomes essential. If High Court issues notification after considering all the facts and circumstances of the case including the convenience of a particular, then it has to be followed. 13. In the present case the Government has not established the Special Court on its own rather the consent of the High Court has been duly obtained. The petitioner is accused in a number of cases and it appears that the trial is going on smoothly in the Court. A number of persons are appearing including one retired Judicial Officer to watch the proceeding. No representation of the petitioner was filed that he is being denied entry. Similarly the list appended with the counter affidavit contains names of a large number of persons who are attending the Court. Normally the Court must be held in usual Court room, though there is no special provision to that extent that the Court must be held in usual Court room but is being followed so Section 327 of the Cr.P.C. mentions that the Court should be deemed to be open court to which public may have access i.e. for as the same can be conveniently contain them. Even if the trial is held inside the jail or any where and if a person wants or like to attend the trial, he can definitely attend. There is nothing on the record that any person has been restrained from attending the Court. 14. It is not the case of the petitioner that anybody has been restrained for participating in the trial rather it appears from the circumstances that nobody is being restrained to attend the trial. Hence the contention of the petitioner does not appear to be correct that the trial is not being conducted in terms of Section 327 of the Cr.P.C. 15. Reliance has been placed by the petitioner on some judgments. One case is reported in 1986 Cr.L.J. 632 (Ranjit Singh, Petitioner vs. Hon ble The Chief Justice and Others, Respondents). In that case it has been specifically held that the trial is to be held at a place which the High Court fixes. In another case reported in 1988 SCC (3)609 (Kehar Singh and Ors., Appellants vs. State (Delhi Administration), Respondent), it has been held that the Court has jurisdiction to specify the place where the court may held its sitting. In that case the jail was notified as a place of sitting of the Court. Validity of that notification was upheld. 16. In the present case, adequate measures have been taken by the respondents and prior to taking any steps they have made consultation with the High Court and in terms of that notifications have been issued. Therefore there is no illegality or impropriety in the notification and the petitioners fundamental rights are not violated. This writ application is accordingly, dismissed.