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Madhya Pradesh High Court · body

2009 DIGILAW 1390 (MP)

ANSAR v. STATE OF M. P.

2009-12-18

N.K.MODY

body2009
Judgment N.K.Mody, J. ( 1. ) This order shall also govern the disposal of M.Cr.C.No.3475/08, as in both the petitions point involved is one and the same. In the petition it is prayed that the criminal case No.1 534/08 registered at Crime No. 120/08 at PS Pithampur pending before CJM, Dhar be transferred to some other district. While in M.Cr.C.3475/08 the same prayer is made for transfer of Criminal Case. In M.Cr.C.No.3795/08 there are 10 accused, while in M.Cr.C.No.3475/08 there are three accused. Apart from this in M.Cr.C.No.3475/08 counsel for the petitioners is also the petitioner. ( 2. ) In M.Cr.C.No.3795/08 it is alleged that the petitioners are being prosecuted for an offence punishable U/s122, 124(A), 153(A) IPC, U/s3 and 13 of illegal Activities Act and U/s 25 and 27 of Arms Act and the criminal case is pending at Dhar. It is alleged in the petition that petitioners were represented through Shri Noor Mohammed, advocate from Ujjain, who appeared before the learned CJM on 11/04/08 wherein he was ill treated, beaten and threatened by some of the members of respondent No.2 and 3 who gathered in the Court compound. It is alleged that petitioners have also filed an application challenging the territorial jurisdiction of learned CJM which has yet to be decide. It was alleged that petitioners will not get fair justice at Dhar because Bar Association of Dhar has resolved that no members of Bar Association, Dhar shall appear on behalf of the petitioners. It was prayed that in the interest of justice it is necessary that criminal case pending before CJM. Dhar be transferred. ( 3. ) Prior to this one more petition was filed which is numbered as M.Cr.C.3475/08 wherein it was alleged that petitioners of M.Cr.C.No.3475/08 engaged petitioner No.4 as counsel. It was alleged that petitioner No. 4 went to the Court by Taxi on 11/04/08 and moved two applications. In the application it was alleged that police protection be provided to the petitioner No.4. In the petition it is alleged that petitioner No. 4 who is an advocate was standing in the compound of the court on 11/04/08, at that time the Journalist of Electronic Media came there started to talk about the case with the petitioner No.4. In the application it was alleged that police protection be provided to the petitioner No.4. In the petition it is alleged that petitioner No. 4 who is an advocate was standing in the compound of the court on 11/04/08, at that time the Journalist of Electronic Media came there started to talk about the case with the petitioner No.4. It was alleged that petitioner No. 4 took a press conference one day before i.e. 07/04/08 and in that press conference narrated the complete facts about the case. It is submitted that the journalist who were present in the Court compound asked the note of the press conference which was taken by the petitioner No.4 on 07/04/08. It was alleged that when the petitioner No.4 was standing near to the door of the Court at that time petitioner No 4 was threatened by 15-20 lawyers of Bar Association, Dhar, who told the petitioner No. 4 not to appear on behalf of the accused persons of the case. It was alleged that petitioner No.4 was threatened for dire consequences. It is alleged that 15-20 persons of Hinduism Organization appeared out side the Court and warned that no advocate shall appear on behalf of the accused person in the Court. It was alleged that petitioner No. 4 was beaten by kicks and fists. It was alleged that the members of Bar Association created an atmosphere in which it was practically not possible, to the petitioner No.4 to defend the petitioners. It is alleged that at about 5:00PM the accused persons were brought before the Court under police custody. It was alleged that members of Hindu Organization crated nuisance and under the police protection petitioner No.4 was brought out of the Court. It was alleged that while returning to Indore under Police protection, the vehicle in which the petitioner No.4 was travelling was stopped at PS. Betma and Police Officers asked the petitioner No. 4 to remove black coat, which the petitioner No.4 was wearing. It was alleged that petitioner No.4 told that the law and order situation is not under control and if the petitioner No.4 remains in black coat, than he will be in trouble. Betma and Police Officers asked the petitioner No. 4 to remove black coat, which the petitioner No.4 was wearing. It was alleged that petitioner No.4 told that the law and order situation is not under control and if the petitioner No.4 remains in black coat, than he will be in trouble. It is submitted that an application was taken by the police officers forecibly wherein petitioner No.4 was asked to write down that petitioner No.4 does riot want to take any action for the incident which took place at Dhar. It was alleged that on 25/04/08 petitioner No. 4 made a complaint to all the Higher Authorities at Bhopal, Indore, Ujjain and Dhar about the incident.lt was alleged that since the case was adjourned for 09/05/08, therefore, the petitioner No.4 requested to all the authorities to provide police protection, but no protection was provided to the petitioner No.4. It was alleged that Dhar is a place which is highly sensational and communal rights takes place every now and then. It was alleged that the persons who has ill treated the petitioner No.4 are non-else but the members of organizations which is in power in the State. With all these allegations it was prayed that the criminal case pending at Dhar be transferred. ( 4. ) In support of the petition the petitioners has enclosed the cutting of News Paper Dainik Bhaskar wherein a news was published under the heading In the News Paper Choutha Sansar dated 12/ 04/08 wherein the news was published under the heading " In the News Paper Dainik Bhaskar dated 12/04/08 the news was published under the heading In the News Paper Dainik Agnipath dated 12/04/08 the news was published under the heading The news was also published in the news paper Free press dated 12/04/08 which was published under the heading SIMI activists sent to judicial custody. It was also the heading that Defense lawyer thrashed in Court premises. ( 5. ) Mr. Anwar Khan, learned counsel for petitioners argued at length and submits that in the facts and circumstances of the case it is practically not possible for the petitioner No.4 to appear before the learned CJM, Dhar. It is submitted that since the petitioners are kept Indore, therefore, on administrative grounds also the case be transferred front Dhar to Indore. Anwar Khan, learned counsel for petitioners argued at length and submits that in the facts and circumstances of the case it is practically not possible for the petitioner No.4 to appear before the learned CJM, Dhar. It is submitted that since the petitioners are kept Indore, therefore, on administrative grounds also the case be transferred front Dhar to Indore. Learned counsel placed reliance on a decision in the matter of Fajlor Rahman @ Mohamod Fajloo@ Raju Vs. State of Punjab,. Reported in 2006 AIR SCW3224 wherein Honble Apex court held that in interest of justice and for convenience of parties case filed in Punjab transferred to Assam. Reliance is also placed on a decision in the matter of Bhawna Vs. State ofM.P.,Reported in 1998 (1) MPLJ297 wherein this Court has held that there are circumstances from which it can be inferred that party entertains reasonable apprehension that he would not get a fair and impartial trial and transfer of case is expedient for ends of justice. On the strenth of aforesaid decisions learned counsel prayed that the petition filed by the petitioners be allowed and the case be transferred. ( 6. ) C.R. Karnik, learned Deputy Government Advocate argued at length and submitted that no case is made out for transfer of criminal case pending at Dhar. It is submitted that the petitioner Safdar Nagori is involved in many criminal cases which are pending against him all over the country. In connection with these cases, the accused is required to be sent on all the places where the criminal cases are pending and prayed that the petition filed by the petitioners be dismissed. ( 7. ) From perusal of the record, it appears that there are 13 accused in number who are petitioners in both the petitions. To prove the case against the petitioners, there are 18 listed witnesses. Most of the witnesses are from Pithampur and Indore and some of the witnesses are from Khargoan and two witnesses Head Constable Hari Kumar Bakshi and Additional Suprintendent of Police Virendra Singh are from Dhar. ( 8. To prove the case against the petitioners, there are 18 listed witnesses. Most of the witnesses are from Pithampur and Indore and some of the witnesses are from Khargoan and two witnesses Head Constable Hari Kumar Bakshi and Additional Suprintendent of Police Virendra Singh are from Dhar. ( 8. ) A report has been submitted by DIG Indore on 11.05.2009 wherein it was alleged that upon information received from informer a case was registered as Case No.120/08 against the petitioners on 26.03.2008 for an offence punishable under Sections 122, 124-A, 153-A of IPC and under Section 3(X) and(XIII)of illegal Activities Act, 1967 and under Section 25 and 27 of Arms Act. It was alleged that the petitioners were arrested on 27.03.2008 and seven pistol and 32 cartridges were seized from the possession of the petitioners. In the said report, it is submitted that the accused persons were presented before the Judicial Magistrate Dhar on 11.05.2008 and Shri Noor Mohammed petitioner No.4 in M.Cr.C.No.3475/05 is an advocate for the rest of the petitioners who came from Ujjain and appeared for the petitioners. In the said report, it is alleged that a press note was distributed by Noor Mohammed, advocate in favour of SIMI in Court premises. It is submitted that because of the press-note some dispute arose. It was also alleged that on 17.07.2008 Noor Mohammed advocate appeared in the Court without any prior intimation and while going back to Ujjain at that time some unknown persons obstructed and abused him. It is submitted that upon which criminal case was registered at Crime No.587/2008 for an offence punishable under Sections 341, 323,294, 506 and 34 of IPC. Further, it is submitted that after investigation challan was filed on 14.11.2008 against Akhilesh s/o Rameshwar Choudhary, Raju S/o Govind Yadav which is pending before JMFC Dhar. It is alleged that Mr. Noor Mohammed has been advised that prior intimation should be given by him so that necessary police protection can be provided to him. ( 9. ) The press note which has been submitted by DIG Indore, alleged to have been issued by Shri Noor Mohammed is on recoed. In the press note it is alleged that the information given by Electronic and Print Media about SIMI workers wherein Muslim comnunity has been targeted. ( 9. ) The press note which has been submitted by DIG Indore, alleged to have been issued by Shri Noor Mohammed is on recoed. In the press note it is alleged that the information given by Electronic and Print Media about SIMI workers wherein Muslim comnunity has been targeted. It was alleged that all this action is an ex- parte and Muslim community has not been given any opportunity to explain. In the press note it was alleged that there is prohibition on SIMI workers which was imposed in the year 2001, according to which only those persons can be arrested who are doing work or getting help by SIMI Organization. It was alleged that only those persons are being arrested and cases are prepared by police by showing that pistol and literature has been recovered from them. In the press note it was alleged that hard core organizations are also pressurising Bar Association to show that no advocate should defend the accused persons. In the press note, it was prayed that the State Government is expected to work impartially and should not work to create dispute between the two communities. ( 10. ) In the evidence. CD has been submitted which shows that in the Court premises itself Noor Mohammed advocate was also present and was ill-treated and was also beaten. This Court has given number of opportunities to the State to inform the administrative difficulties in pursuing the case at Indore instead of Dhar. Dhar is a small place and is also at a distance of 60-70 Kms from Indore. No satisfactory answer has been given by the State except that the case shall be tried at Dhar. It would not be out of place to mention here that an objection has been raised by the accused persons before the Court at Dhar relating to territorial Jurisdiction. ( 11. ) An undertaking has also been given on behalf of the petitioners that in case the case is transferred to Indore, then petitioners will not raise the dispute regarding the territorial jurisdiction. From perusal of order-sheet-dated 05/06/09 it is evident that from that date it is only Nafser who is the accused was present and the case was adjourned for 19/06/09. On 19/06/09 again accused Nafser was present and the accused. Sehzad was produced from District Jail, Dhar. Other accused persons who were in jail at Datiya. From perusal of order-sheet-dated 05/06/09 it is evident that from that date it is only Nafser who is the accused was present and the case was adjourned for 19/06/09. On 19/06/09 again accused Nafser was present and the accused. Sehzad was produced from District Jail, Dhar. Other accused persons who were in jail at Datiya. Hosangabad, Bhopal, Rewa and Indore were not present After hearing the arguments learned trial Court committed the case to the Court of Sessions, at Dhar. ( 12. ) After taking into consideration all the facts and circumstances of the case, this Court is of the view that for administrative convienence and also in the interest of fair and impartial justice it will be in the interest of both the parties to transfer the case from District Court Dhar to District Court, Indore. It will not be out of place to mention that it will be also convenient for the prosecution to keep the accused persons present at Indore instead of Dhar. It is made clear that the petitioners shall not be allowed to raise any objection regarding territorial jurisdiction. ( 13. ) Record be sent back forthwith to transmit the same to the District and Sessions Judge, Indore. Keeping in view the gravity of the offence, learned District Judge, Indore is requested to decide the case itself instead of transferring to some other Sessions Court. ( 14. ) With the aforesaid observations, both the petition stands disposed of. A copy of the order be placed in the record of M.Cr.CNo.3475/08. C.C. as per rotes. Petition disposed of.