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2009 DIGILAW 956 (HP)

Surjit Singh Randhawa v. State of H. P.

2009-11-03

KULDIP SINGH

body2009
JUDGMENT Kuldip Singh, J. 1. This is a petition for transfer of Sessions Case No. 6/2008 and Sessions Trial No. 3/2008 arising out of FIR No. 92 dated 13.5.2006 registered at Police Station, Haroli, District Una, under Sections 307, 120-B, 34 IPC and Sections 25, 27 of Arms Act. On 1.10.2009, the comments of Sessions Judge, Una were called and he has submitted his comments 2. It has been submitted in the petition that petitioner is a doctorate and at present serving as Principal in Shri Guru Gobind Singh Khalsa College, Mahilpur (Hoshiarpur) since 2002. He is senator of Punjab University and President of Principal's Federation Punjab as well as President of Sports Committee, Punjab University, Chandigarh. The petitioner has been falsely implicated in FIR No. 92 dated 13.5.2006 registered at Police Station, Haroli. The petitioner is facing trial in the Court of Sessions Judge, Una on the basis of FIR No. 92 dated 13.5.2006. The statement of PW 1 Raman Bali was recorded on 19.11.2008 and he was declared hostile. The statement of PW 2 Malkiet Singh was recorded on 20.11.2008 and he was also declared hostile. Similarly, statements of PW 3 Avtar Singh son of Swaran Singh and PW 4 Rajinder Kumar were recorded and they were declared hostile. PW 5 Jagvinder Singh was examined, PW 6 Avtar Singh son of Mohinder Singh was examined on 21.11.2008 and was declared hostile. PW 7 Rajesh Luthara supported the case of the petitioner. 3. The trial was fixed on 21/22.8.2009, but by that date new Sessions Judge Sh. Shamsher Singh had taken over due to transfer. The statement of PW 8 Hira Lal was recorded. It has been alleged that on 21.8.2009 the Sessions Judge was not behaving like a Judicial Officer. The witness in his statement gave car No. PB-7K-906 Opal Astra, which was not belonging to the petitioner and was subject-matter of incident mentioned in the FIR. The Sessions Judge intervened and tried to pressurize the witness to give number of the car, which was not plated on the car. The Sessions Judge with respect to other witness, who is running the shop of arms and ammunition and was examined with regard to deposit of revolver commented that such like deposit can be done ante-dated. The Sessions Judge intervened and tried to pressurize the witness to give number of the car, which was not plated on the car. The Sessions Judge with respect to other witness, who is running the shop of arms and ammunition and was examined with regard to deposit of revolver commented that such like deposit can be done ante-dated. It has been alleged that Sessions Judge was not only filling up the lacuna but was also trying to create the evidence against the petitioner. The learned defence Counsel raised the objection but Sessions Judge had lost his temper and stalled the proceedings. He directed the Public Prosecutor, witness and the petitioner to go outside and see the number of the car of the petitioner with a view to implicate the petitioner in the case. The Sessions Judge had threatened the petitioner and his Counsel that they would be taught a lesson for their opposition. The witness exonerated the petitioner by deposing that they were not the same persons who participated in the commission of the offence. The witness was taken away by the Public Prosecutor at the instance of Sessions Judge in a room. The defence Counsel requested for re-starting of the trial, the Sessions Judge informed that he would not going to take up the case before 4.00 p.m. He also observed that he would see how the petitioner and other would save themselves. The Sessions Judge observed that they would be convicted and their mind will be set right. The witness was called at 4.00 p.m. by the Sessions Judge and the witness remained firm on his stand and did not resile from his earlier statement. 4. On 22.8.2009, the Sessions Judge misbehaved in a very rude manner and directed the Secretary and Reader to finish all the statements on that date. It has been alleged that he observed that let the defence Counsel dictate what he like and ultimately he would pronounce the judgment. It has been alleged that either the Sessions Judge was influenced by some rivals or he was annoyed due to interception by the learned defence Counsel. 5. The defence Counsel Shri P.C. Sharma, Advocate, who is defending the accused alongwith Shri S.S. Bhagowalia had informed that when Sessions Judge was serving as Senior Sub-Judge, Una, he had decided civil suit against him as well as his brother. 5. The defence Counsel Shri P.C. Sharma, Advocate, who is defending the accused alongwith Shri S.S. Bhagowalia had informed that when Sessions Judge was serving as Senior Sub-Judge, Una, he had decided civil suit against him as well as his brother. The litigation went up to the High Court and in RSA No. 269 of 1996 decided on 30.9.1997, the High Court commented heavily regarding the knowledge of the then Senior Sub-Judge, Una. The case was filed by Shri P.C. Sharma, one of the defence Counsel, therefore, this is also one of the cause of annoyance of Sessions Judge. The case was fixed for 5.10.2009 and the petitioner had sent E.-mails and registered letters to Hon'ble Chief Justice of India and Hon'ble Chief Justice of Himachal Pradesh and the Inspecting Judge of District Una against the conduct of Shri Shamsher Singh, Sessions Judge, Una. 6. It has also been alleged that apprehension of the petitioner is substantiated from the order dated 22.8.2009 passed by the Sessions Judge when he has observed that the charge may also have to be amended. On these facts, the petition has been filed to withdraw the Sessions Case No. 6/2008, Sessions Trial No. 3/2008 from the Court of Sessions Judge, Una and transfer the same to some other Sessions Division. 7. The Sessions Judge in his comments has submitted that his predecessor had recorded the statements of prosecution witnesses w.e.f. 19.11.2008 to 21.11.2008. On 21.11.2008 the case was adjourned, his predecessor in office did not record any evidence after 21.11.2008. It has been submitted by Sessions Judge in his comments that he took up the case on 6.7.2009 and fixed the same on 21.8.2009 and 22.8.2009 for recording prosecution evidence. On 21.8.2009 statement of PW 8 Hira Lal was recorded by him. The statements of PW 1 to 7 were recorded by his predecessor in office. He has denied that on 21.8.2009 he did not behave like a Judicial Officer. He has stated that in the examination-in-chief PW 8 had given the registration number of the car PB-07-A-906 and not PB-7K-906 Opal Astra, when PW 8 gave incorrect registration number of the vehicle, the Public Prosecutor insisted that the vehicle be produced as there is a dispute of identification of vehicle and the registration number thereof. He has stated that in the examination-in-chief PW 8 had given the registration number of the car PB-07-A-906 and not PB-7K-906 Opal Astra, when PW 8 gave incorrect registration number of the vehicle, the Public Prosecutor insisted that the vehicle be produced as there is a dispute of identification of vehicle and the registration number thereof. The learned Counsel for the accused had stated that accused No. 1 had brought the car to Court complex, Public Prosecutor and the witness could examine the car in the Court complex, therefore, evidence of PW 8 was adjourned and further statement of PW 8 was ordered to be recorded in the afternoon. The Sessions Judge has denied that he had pressurized PW8 to state the registration number of the vehicle plate fixed by accused No. 1 on his car. He has denied that he had mentioned the registration number of the car of accused No. 1 which was not stated by the witness. The Sessions Judge has clearly stated that initially PW 8 had given different registration number of the vehicle, but after he had seen the vehicle in question at the instance of Public Prosecutor he had stated correct registration number thereof. The Sessions Judge has denied that it is absolutely wrong that by directing the witness to see and examine vehicle in question at the instance of Public Prosecutor, he was filling up the lacuna or trying to create evidence against the petitioner. It has been denied that Sh. S.S. Bhagowalia, Counsel for the petitioner had objected adjournment with a view to enable the witness to see the car. On the contrary, he had stated that petitioner had brought the car and could be examined by the witness and the Public Prosecutor. The Sessions Judge has denied that he lost the temper and had stalled the proceedings. He has denied that he directed the witness and the Public Prosecutor to go outside and see the registration number of the car with a view to implicate the petitioner. It was denied that he threatened the petitioner and his Counsel that they will be taught a lesson for their alleged opposition. 8. The Sessions Judge has denied for want of knowledge that PW 8 had been taken by Public Prosecutor to his room or not. It was denied that he threatened the petitioner and his Counsel that they will be taught a lesson for their alleged opposition. 8. The Sessions Judge has denied for want of knowledge that PW 8 had been taken by Public Prosecutor to his room or not. He has denied that he had informed the petitioner, other accused and their Counsel that he would not start the case before 4.00 p.m. The evidence of PW 8 was to be resumed in post lunch session and was so recorded. He has denied that he had stated that petitioner would not be able to save himself and they would be convicted and set right. 9. It has been denied by Sessions Judge that any witness who was running a shop of arms and ammunition had been examined by him with regard to deposit of revolver and at that time he had commented that such like deposit can be ante-dated as alleged. 10. It has been denied by Sessions Judge that on 22.8.2009, he misbehaved and acted in a very rude manner. It has been denied that he had asked the reader and other officials of the Court to finish the statement on that date. The Sessions Judge has denied that he had asked the defence Counsel to dictate whatever he liked and that ultimately the judgment would be pronounced by him. It has been denied that he had been influenced by some rivals of the petitioner. It has also been denied that he felt annoyed when he was allegedly intercepted by the learned defence Counsel. The Sessions judge has denied that he was behaving like a prosecutor and asking questions. 11. The Sessions Judge has not denied that as Senior Sub-Judge he had decided Civil Suit on 14.3.1989. He has however submitted that he was not aware of judgment dated 30.9.1997 passed by the High Court. The Sessions Judge has denied that petitioner would not get fair trial from him. On 22.8.2009 the Public Prosecutor had also stated that charge may also have to be amended. The apprehension of the petitioner that he would not get justice from his Court is without any foundation. The Sessions Judge has denied the allegations made by the petitioner in the transfer application. 12. I have heard Mr. K.S. Dadwal, learned Counsel for the petitioner and Mr. A.K. Bansal, learned Addl. Advocate General appearing for the State-respondent. The apprehension of the petitioner that he would not get justice from his Court is without any foundation. The Sessions Judge has denied the allegations made by the petitioner in the transfer application. 12. I have heard Mr. K.S. Dadwal, learned Counsel for the petitioner and Mr. A.K. Bansal, learned Addl. Advocate General appearing for the State-respondent. The Sessions Judge has also sent case file No. 3/2008. The perusal of order sheets of case file No. 3/2008 would show that Sh. S.S. Bhagowalia, Advocate had represented the accused in sessions case No. 6/2008, Sessions Trial No. 3/2008, The charge was framed on 14.8.2008 when the accused were represented by Sh. S.S. Bhagowalia, Advocate. On 19.11.2008, 20.11.2008 and 21.11.2008 Sh. S.S. Bhagowalia, Advocate represented the accused in the trial Court. On 21.8.2009 and 22.8.2009 again Sh. S.S. Bhagowalia represented the accused in the trial Court. There is no denial of the fact that on some dates Sh. P.C. Sharma, Advocate had also appeared on behalf of the accused, but predominantly on effective dates like framing of charge and recording of evidence Sh. S.S. Bhagowalia represented the accused as per order sheets. 13. The petition has been supported by an affidavit of Surjit Singh Randhawa, petitioner. In the affidavit it has been stated that accompanying petition has been drafted by the Counsel at the instance of deponent and the contents thereto which the deponent has gone through carefully contained in paras 1 to 13 are true and correct to the best of the knowledge and belief of deponent. It has not been stated which parts of paras 1 to 13 are true to the knowledge of deponent and which parts are true to the belief of deponent. Thus reliance cannot be placed on such affidavit. 14. The allegations of the petitioner have been denied by Sh. Shamsher Singh, Sessions Judge, Una on material particulars. The allegations levelled against the Sessions Judge by the petitioner are serious but simultaneously those are just allegations which have not been corroborated by any other substantive material on record. The allegations made by the petitioner cannot be easily accepted on the basis of bald assertions made in the petition. The petitioner is an interested person. There is sanctity attached to the judicial proceedings. 15. The allegations made by the petitioner cannot be easily accepted on the basis of bald assertions made in the petition. The petitioner is an interested person. There is sanctity attached to the judicial proceedings. 15. In normal course, a judicial officer is not expected to behave in the manner as the Sessions Judge has allegedly acted, while conducting the trial, as alleged by the petitioner. It is not in public interest to accept the bald allegations of the petitioner against the Presiding Officer of the rank of Sessions Judge regarding the trial conducted in open Court unless those allegations are supported by other evidence or at-least lend assurance by way of some other material. The Advocates are the officers of the Court and they are expected to take neutral stand. It is the case of the petitioner that Sessions Judge has misbehaved during trial in presence of defence Counsel but defence Counsel has not filed any affidavit in support of the allegations. It is not the case of the petitioner that objection raised by the defence Counsel was not recorded in the proceedings. I have gone through the relevant order sheets, there is nothing in the order sheets to support the contention of the learned Counsel for the petitioner regarding the objections of defence Counsel. 16. The learned Counsel for the petitioner has relied on Sri Jayendra Saraswathy Swamigal, Tamil Nadu v. State of Tamil Nadu and Ors. 2005 (4) RCR (Criminal) 725. In the case before the Hon'ble Supreme Court, serious allegations in the transfer application were levelled against the State Machinery in Tamil Nadu and specially the Special Investigation Team, Chief Minister of State of Tamil Nadu. The Advocates appearing for the petitioner and other co-accused in that case were put under great threat on account of lodging of false and fabricated criminal cases against them. Prem Kumar who was heading the Special Investigating Team is not a fair and upright officer. On those facts, the Supreme Court allowed the petition and transferred the case pending before Principal Sessions Court, Chenglepet to the Court of Principal District and Sessions Judge, Pondicherry. The facts in the present case are entirely different. The petitioner has levelled allegations against the Sessions Judge regarding the recording of evidence which have been denied by the Sessions Judge. Therefore, Sri Jayendra Saraswathy Swamigal, Tamil Nadu (supra) is not applicable in the present case. 17. The facts in the present case are entirely different. The petitioner has levelled allegations against the Sessions Judge regarding the recording of evidence which have been denied by the Sessions Judge. Therefore, Sri Jayendra Saraswathy Swamigal, Tamil Nadu (supra) is not applicable in the present case. 17. The learned Counsel has also relied Satish Jaggi v. State of Chhattisgarh and Ors. 2007 (2) RCR (Criminal) 116. In that case, the transfer of the case had been sought primarily on the ground that the Sessions Judge before whom the trial was pending is the elder brother of sitting M.L.A., who was very close to the father of respondent No. 3 one of the main accused. The father of respondent No. 3 was the previous Chief Minister of the State, he and the brother of Sessions Judge belong to the same political party. The said MLA was very close to the father of respondent No. 3, who was earlier Chief Minister of the State. On those grounds, the appellant contended that he had bonafide and genuine apprehension that he will not get justice if the trial is conducted and concluded by the present Sessions Judge, where the trial was pending. On peculiar facts of that case, the case was transferred to some other Sessions Court at Raipur. The present case is entirely on different footing. There is no allegation that Sessions Judge is connected with some one interested in the case. There is bald allegation that Sessions Judge is behaving in a particular manner at the instance of rivals of the petitioner. There is no foundation for such allegations, therefore, Satish Jaggi (supra) is also not applicable in the facts of the present case. 18. It has been contended on behalf of the petitioner that Sessions Judge in the order dated 22.8.2009 has observed that charge may also have to be amended. This indicates that Sessions Judge is proceeding in the case with some preconceived mind. The Sessions Judge in his comments has stated that on 22.8.2009 Public Prosecutor had stated that charge may also have to be amended. The Sessions Judge has stated that he had nowhere stated that charge is required to be amended. This indicates that Sessions Judge is proceeding in the case with some preconceived mind. The Sessions Judge in his comments has stated that on 22.8.2009 Public Prosecutor had stated that charge may also have to be amended. The Sessions Judge has stated that he had nowhere stated that charge is required to be amended. The observation of the Sessions Judge in the order dated 22.8.2009 that charge may also have to be amended, cannot be construed to be such an observation, which gives right to the petitioner to seek transfer of his case to some other Court. The observation is innocuous. The other grievance of the petitioner is that the Sessions Judge allegedly behaved in a particular manner on the ground that in a case initiated by Sh. P.C. Sharma one of the defence Counsel, the High Court had passed strictures against the then Senior Sub-Judge, the present Sessions Judge. It has emerged during the course of hearing that Sh. P.C. Sharma, Advocate is practicing at Una. It is not the case of the petitioner that in every case of Sh. P.C. Sharma, Advocate, the Sessions Judge is not conducting the Court proceedings properly. The High Court decided the case on 30.9.1997 and the allegations have been made now after about twelve years of the decision. The allegations have not been supported by worth believing material on record. The petitioner has failed to make out a case for transfer of the case from the Court of Sessions Judge, Una to some other Court. 19. No other point was urged. 20. Resultantly the petition fails and is accordingly dismissed. The case file sent by the Sessions Judge, Una be returned to him immediately so as to reach in the Court below before the date fixed by him on 1.12.2009 in the trial.