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2007 DIGILAW 2229 (PNJ)

Anil Kumar Jain v. State Of Punjab

2007-12-20

SURYA KANT

body2007
Judgment Surya Kant, J. 1. In this petition under Section 407 Cr.P.C., the petitioners seek transfer of the trial proceedings in the Sessions Case No.111 dated 19.5.2006 arising out of F.I.R. No. 229 dated 31.7.2005 under Section 302, 201, 404, 364, 329, 354, 120-B, 34 IPC registered at Police Station Division No. 5, Ludhiana and pending in the court of Shri M.S. Virdi, learned Additional Sessions Judge, Ludhiana to any competent court outside the State of Punjab. 2. The facts may be noticed briefly. 3. The petitioners are husband and wife respectively and are facing trial in a case pertaining to the murder of Rima Jain wife of Sunil Jain i.e. the brother of petitioner No. 1. 4. It may be noticed here that the above-named brother of petitioner No. 1, namely, Sunil Jain was also unfortunately murdered and in this regard F.I.R. No. 80 dated 10.4.2000 under Section 302 IPC was registered at Police Station Focal Point Ludhiana. The petitioner No. 1 who is the elder brother of Sunil Jain (since deceased) was the sole accused in the above-stated case. The petitioner No. 1, however, was acquitted by the then Sessions Judge, Ludhiana, vide his judgment dated 9.9.2002. 5. Smt. Rima Jain wife of late Sunil Jain was the complainant in the above- stated F.I.R. 6. After acquittal of petitioner No. 1 in Sushil Jains murder case, Rima Jain was also found murdered and in relation thereto, initially the subject F.I.R. was registered alleging abduction of Smt. Rima Jain, however, later on the offences under Section 302 and 201 IPC etc. were also added. 7. The petitioners seek transfer of the trial proceedings outside the State of Punjab primarily on the apprehension that they are not likely to get fair and impartial trial at the hands of the Presiding Officer. In support of their apprehension, two interlocutory orders dated 3.10.2007 (Annexure P-6 and P-7) are being relied upon. Vide the first order, the learned trial Judge has turned down the application moved by petitioner No. 1 for directing that while bringing him from Nabha Jail to the trial Court he should not be handcuffed. In support of their apprehension, two interlocutory orders dated 3.10.2007 (Annexure P-6 and P-7) are being relied upon. Vide the first order, the learned trial Judge has turned down the application moved by petitioner No. 1 for directing that while bringing him from Nabha Jail to the trial Court he should not be handcuffed. The aforesaid relief has been declined by the learned Presiding Officer after observing that the petitioner No. 1 "is a hardened criminal." This observation appears to have been made by the learned Presiding Officer in the backdrop that previously petitioner No. 1 faced trial for the murder of his own brother and he was also involved in a case under the N.D.P.S. Act. The learned trial Judge, however, has categorically observed and is not disputed by learned counsel for the petitioners that petitioner No. 1 is being handcuffed on the way from Nabha Jail to the Court room only and "in the Court he is not being handcuffed." 8. Vide another order of the even date (Annexure P-7), an application moved by the petitioners for getting the DNA Test of the alleged bone of deceased Rima Jain from the Forensic Science Laboratory at Hyderabad (instead of Laboratory at Chandigarh) has been turned down. As it appears from the said order, the petitioners wanted the DNA-Test to be conducted at Hyderabad on the ground that the report submitted by the Chandigarh Laboratory is manipulated as "no proper equipment is available at the Forensic Laboratory at Chandigarh as compared to the Laboratory at Hyderabad." The learned trial Judge, however, has turned down the aforesaid application after observing that "the incapacity and non-availability of the proper equipment at the Forensic Laboratory at Chandigarh and doing the test by not a competent expert can be proved only from the cross-examination of the officer, who has done the said test but that Officer is yet to be called in cross-examination." 9. It, thus, appears that the petitioners application regarding conducting of the DNA Test at Hyderabad has not been finally rejected rather the issue has been kept open depending upon the explanation to be tendered by the Scientist during the course of his cross-examination. 10. From both the above-mentioned orders, it is too difficult to discern that the learned Presiding Officer is biased and/or prejudiced against the petitioners. 10. From both the above-mentioned orders, it is too difficult to discern that the learned Presiding Officer is biased and/or prejudiced against the petitioners. It is, however, a matter of common knowledge that many a time observations are made by Presiding Officer of a Court which are not necessarily an expression of his final views on the merits of the case. Besides, no litigant, be that may an accused, has a right to choose the Forum of his own choice. In the light of the scant material on record, I am of the considered view that no case to transfer the ongoing trial is made out. Dismissed.