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Gujarat High Court · body

2010 DIGILAW 612 (GUJ)

Pradipkumar Kantilal Raval v. State Of Gujarat

2010-12-28

M.R.SHAH

body2010
JUDGMENT M.R. SHAH, J. 1. PRESENT petition under Articles 226 and 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure has been preferred by the petitioner - original applicant - original revisionist to quash and set aside the impugned order passed by the learned Principal Sessions Judge, Mehsana dated 08.12.2010 in Criminal Revision Application Nos.793/2010 and 797/2010, by which the applicant had requested the learned Sessions Judge to transfer Criminal Revision Application Nos.137/2010 and 152/ 2010 from the Court of learned 2nd Additional Sessions, Mehsana. 2. THAT the petitioner herein - original applicant had submitted/filed Criminal Miscellaneous Application No.908/2010 in the Court of 2nd JMFC, Mehsana for getting a search warrant under Sections 97 and 90 of the Code of Criminal Procedure as his daughter Ronak was alleged to have been seduced by respondent No.2 herein and alleged to be kept in illegal confinement. It appears that petitioner's daughter Ronak was produced before the learned 2nd JMFC, Mehsana on execution of the search warrant on 26.10.2010 and it was directed that the said Ronak be sent to Bhagini Samaj at Patan for her safety and security. It appears that respondent No.2. herein submitted an application before the learned JMFC to set aside the order by which the girl Ronak was directed to be sent to Bhagini Samaj at Patan as he wanted to prefer the Revision Application before the Revisional Court and the learned JMFC stayed the said order of sending the girl Ronak to Bhagini Samaj at Patan for the interim period of limitation i.e. 90 days f6r the purpose of filing the Criminal Revision Application. Feeling aggrieved by the said order of stay, petitioner preferred Criminal Revision Application No. 137/2010 and one another Criminal Revision Application No. 152/2010 arising out of the said order was also preferred and both the aforesaid Criminal Revision Applications were placed for hearing before the learned 2nd Additional Sessions Judge, Mehsana. Feeling aggrieved by the said order of stay, petitioner preferred Criminal Revision Application No. 137/2010 and one another Criminal Revision Application No. 152/2010 arising out of the said order was also preferred and both the aforesaid Criminal Revision Applications were placed for hearing before the learned 2nd Additional Sessions Judge, Mehsana. It appears that the learned Additional Sessions Judge before whom the aforesaid two Criminal Revision Applications were placed for hearing, proper language was not used by him and looking to his conduct and not using proper language, petitioner felt that he will not get substantial justice and therefore, the petitioner through his Advocate submitted an application on administrative side before the learned Principal District and Sessions Judge, Mehsana to transfer the aforesaid two Criminal Revision Application Nos. 137/2010 and 152/2010 to any other Court and the said application came to be dismissed/ rejected by the learned Principal District and Sessions Judge, Mehsana by impugned order dated 08.12.2010 on the ground that the said application is not maintainable as the same is not moved by the alleged affected person; the same is without verification and the alleged conduct of the concerned Judge is not supported by the affidavit. Being aggrieved and dissatisfied with the aforesaid order passed by the learned Principal Sessions Judge, Mehsana in rejecting the application submitted by the petitioner to transfer the aforesaid two Criminal Revision Applications to any other Court from the Court of learned 2nd Additional Sessions Judge, Mehsana, which was submitted on administrative side, has preferred the present Special Criminal Application under Articles 226 and 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure. Shri J.T. Trivedi, learned Advocate appearing on behalf of the petitioner has submitted that the learned Sessions Judge has materially erred in rejecting the application submitted by the petitioner on the technical ground. It is submitted that as such when the application was submitted to transfer the aforesaid Criminal Revision Applications on administrative side, neither there was any verification required nor the same was required to be supported by an affidavit. It is submitted that as such when the application was submitted to transfer the aforesaid Criminal Revision Applications on administrative side, neither there was any verification required nor the same was required to be supported by an affidavit. [3.1] Shri J.T. Trivedi, learned Advocate appearing on behalf of the petitioner has submitted that looking to the conduct of the learned Judge before whom the aforesaid Criminal Revision Applications were placed for hearing and as the proper language was not used by the learned Judge and whenever the matter was taken up for hearing, learned Judge was always in haste and before even the matter starts, he was telling the learned Advocate that he is wasting the time and therefore, it was apprehended by the petitioner that he will not be given sufficient opportunity to submit his case and therefore, this was a fit case to transfer the Criminal Revision Applications from the Court of 2nd Additional Sessions Judge, Mehsana. [3.2] Shri J.T. Trivedi, learned Advocate appearing on behalf of the petitioner has submitted that sufficient time is to be granted to the litigant and/ or its Advocate to submit the case on merits and the Court/Judge should not be in hurry to dispose of the matter. It is submitted that litigant and/or Advocate should not feel that the Court is in hurry in disposal of the matter without giving sufficient opportunity to the parties to submit the case on merits. It is further submitted that even the language of the Judge also should be sober and a Judge should not be in haste in disposal of the case only. Relying upon the decision of the Division Bench of the Assam High Court in the case of N. C. Bose v. Probodh Dutta Gupta reported in AIR 1955 Assam 116, Shri J.T. Trivedi, learned Advocate appearing on behalf of the petitioner has submitted that as observed by the Division Bench, it is not enough to do justice, it must be seen to be done giving an impression by some remarks that the issue has been pre-judged, to justify a demand for transfer of the case. [3.3] Shri J.T. Trivedi, learned Advocate appearing on behalf of the petitioner has submitted that as observed by the Hon'ble Supreme Court in the case of Himanshu Singh Sabharwal v. State of M.P. and Ors. [3.3] Shri J.T. Trivedi, learned Advocate appearing on behalf of the petitioner has submitted that as observed by the Hon'ble Supreme Court in the case of Himanshu Singh Sabharwal v. State of M.P. and Ors. reported in AIR 2008 SC 1943 , if a criminal Court is to be an effective instrument in dispensing justice, the Presiding Judge must cease to be a spectator and a mere recording machine by becoming a participant in the trial evincing intelligence, active interest and elicit all relevant materials necessary for reaching the correct conclusion, to find out the truth, and administer justice with fairness and impartiality both to the parties and to the community it serves. Making above submissions and relying upon above decisions and the observations made in the aforesaid decisions, it is requested to pass appropriate order. 3. HAVING heard the learned Advocates appearing on behalf of respective parties, more particularly, Shri Trivedi, learned Advocate appearing on behalf of the petitioner, at the outset it is to be noted that as such there are no allegations of bias made against the concerned Judge. The learned Advocate appearing on behalf of the petitioner is dissatisfied with the conduct of the presiding Judge and the language used by him. It is the case on behalf of the petitioner that whenever matter is taken up for hearing, learned Judge starts with the matter by saying that the learned Advocate is wasting time of Court and directs to conclude the hearing in haste. It appears that except the above, there are no allegations against the concerned presiding Judge and therefore, as such there is no reason to transfer the Revision Applications from his Court. It is true that whenever a litigant comes to the Court, he should be given fair opportunity and sufficient time to submit the case on merits and litigant and/or his Advocate should not feel that the Court is in hurry and/or haste in disposing of the matter. Only in an appropriate case, if the concerned Judge is of the opinion that the learned Advocate appearing on behalf of the litigant is unnecessarily wasting time either by repetition and/or making submissions contrary to the record and/ or unnecessary wasting the time only to delay the proceedings, in that case, it is always open for the presiding Judge to stop the learned Advocate. However, it is always desirable to grant sufficient time to the litigant and/or his Advocate to submit the case on merits and a litigant should not feel that the presiding Judge has not given sufficient time to submit his case on merits. It is not enough to do justice but it must be seen to be done. At the initial stage itself, the litigant should not feel and/or the conduct of the presiding Judge should not be such that the litigant starts feeling that the Court is in haste in disposal of the matter. Even the language of the presiding Judge should be sober and should not be such which annoys the litigant and/or the Advocate. In the present case, as stated herein above, there are no further allegations of bias against the learned Judge and therefore, this Court is of the opinion that the present Special Criminal Application can be disposed of by making above observations so that a message may go to the concerned Judge. 4. WITH the above observations, present Special Criminal Application is disposed of. Application is disposed of.