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2012 DIGILAW 15 (DEL)

Vinod Sharma v. State

2012-01-02

V.K.SHALI

body2012
JUDGMENT : V.K. Shali, J. 1. This is a petition under Section 482 Cr.P.C. filed by the petitioners/accused against the impugned order dated 12.08.2011 passed by Ms. Pratibha Rani, the learned District and Sessions Judge-1 (as her Ladyship then was) transferring the case titled State v. Vinod Sharma from Court of Sh. Virender Bhatt to the Court of Sh. S.S. Rathi, the learned Additional Sessions Judge. 2. Briefly stated the facts of the case are that on 24.01.2010 a FIR No. 30/2010. under Section 302/307/34/147/146/323/325 IPC and Section 25/27 of the Arms Act was registered by P.S. Dabri, Delhi. On 27.01.2010, the investigation of the case was transferred from the local police station Dabri, to Crime Branch Chanakya Puri, New Delhi. The present petitioners were arrested on 28.01.2010. On 08.02.2010, Pandit R.K. Naseem who was in relation of the present petitioners had unfortunately succumbed to the injuries suffered by him in the incident. In May 2010, a charge sheet was filed before the learned ACMM, Dwarka Courts, Delhi. There were in all 10 accused persons who were charge sheeted. Out of them, four accused persons were arrested while the remaining six were absconding. 3. On 15.02.2011, the charges were framed against Vinod Sharma and Aman Gaur under Section 302/307/34 IPC and Section 147/148/149 read with Section 325 IPC. Charges were also framed under Section 25/27 of the Arms Act against Aman Gaur and Rahul. The charges were framed under Section 147/148/149/325 IPC against Neeraj. 4. In April 2011, a revision petition bearing No. 172/2011 was filed by the State, thereby challenging the order of charge and the Court granted ad interim ex-parte stay regarding the operation of the order against the two accused persons, namely, Neeraj and Rahul Reddy. However, the proceedings of the case were not stayed and the said revision is still pending. 5. In May 2011, the trial of the case was adjourned to the month of June, 2011 and then to July, 2011. One of the witnesses Virender Sharma, brother-in-law of the victim Pandit R.K. Naseem is alleged to have misbehaved with Ms. Ravinder Kaur, the Additional Sessions Judge, Delhi. On account of this, the case was transferred to the learned District and Sessions Judge for fresh allocation to some other Judge. 6. In July 2011, the matter was assigned to Sh. Virender Bhatt, the learned Additional Sessions Judge. Ravinder Kaur, the Additional Sessions Judge, Delhi. On account of this, the case was transferred to the learned District and Sessions Judge for fresh allocation to some other Judge. 6. In July 2011, the matter was assigned to Sh. Virender Bhatt, the learned Additional Sessions Judge. On 01.08.2011, an anticipatory bail application of Naresh Karotia, Amrit Lal and Laxman were allowed by Mr. Virender Bhatt. the learned Additional Sessions Judge. On 04.08.2011, Vivek Gaur challenged the order of grant of bail in the High Court against these accused persons on the ground that they were allegedly absconding, and therefore, they were not entitled to grant of bail. 7. Two days later, on 06.08.2011, a transfer petition was filed before the learned District and Sessions Judge by the wife of the victim Pandit R.K. Naseem alleging that she is apprehending that she will not get justice from the Court of Sh. Virender Bhatt, and accordingly, made a prayer for transfer of the matter to some other Court. 8. The learned District Judge stayed the proceedings and issued notice to the petitioner/accused persons and called for the reply of the petitioners/accused persons. The learned counsel for the petitioners opposed the transfer of the case from the Court of Sh. Virender Bhatt to Sh. S.S. Rathi. The learned District Judge after hearing the learned counsel for the parties passed an order dated 12.08.2011 transferring the matter from the Court of Sh. Virender Bhatt to the court of Sh. S.S. Rathi, the learned ASJ, Delhi. 9. The .present petitioners/accused persons, feeling aggrieved by the said order of transfer, have assailed the impugned order of transfer on the ground that the same is not sustainable in the eyes of law. 10. It was the contention of the learned counsel for the petitioners that before the matter could be transferred from one Court to another Court, the apprehension expressed by the applicant/respondent seeking transfer of matter must be real and genuine. In the instant case, the applicant/respondent had not filed the transfer application only on conjectures and surmises but it is also contended that as the anticipatory bail had been given to some of the accused who were allegedly absconding, therefore, she filed the application for transfer of the case. 11. The learned senior counsel Mr. In the instant case, the applicant/respondent had not filed the transfer application only on conjectures and surmises but it is also contended that as the anticipatory bail had been given to some of the accused who were allegedly absconding, therefore, she filed the application for transfer of the case. 11. The learned senior counsel Mr. Siddharth Luthra, tried to justify the order of transfer by observing that one of the fundamental principle of transfer is that there may not be actual bias or actual prejudice which must be shown by a party before a case is transferred. A reasonable apprehension of bias or prejudice is sufficient in law to result in transfer of the case. It was contended that in the instant case, Sh. Virender Bhatt, learned Additional Sessions Judge had granted bail to the absconders in a case of brutal murder of the husband of Nirmal Sharma, the applicant, and therefore, her apprehension that she may not get justice from the Court of Sh. Virender Bhatt, the learned Additional Sessions Judge, is not only just but also reasonable. The order is not only reasonable but also genuine, and accordingly, there was no infirmity in the order of transfer of the matter passed by the learned Additional Sessions Judge. 12. Section 408 Cr.P.C. confers powers on the Sessions Judge to transfer the matter from one Criminal Court to another Criminal Court in his Sessions Division and Section 407 Cr.RC. deals with the power of the High Court to transfer the matter from one Sessions Judge to another Sessions Judge. In the instant case, at the very outset, during the course of arguments it was conceded by both the learned counsel for the parties that instead of seeking contest in the matter of transfer of the present case both the parties are interested in expeditious disposal of the trial, and therefore, they have actually agreed that they have no objection in case the impugned order of transfer, dated 12.08.2011, transferring the matter from the Court of Sh. Virender Bhatt is set aside and the same is marked to the Special Court of Sh. H.S. Sharma, the learned Additional Sessions Judge, Patiala House Courts, New Delhi. 13. I have considered the submissions of the learned senior counsel for the parties and have gone through the record including the documents submitted by the petitioners. 14. Virender Bhatt is set aside and the same is marked to the Special Court of Sh. H.S. Sharma, the learned Additional Sessions Judge, Patiala House Courts, New Delhi. 13. I have considered the submissions of the learned senior counsel for the parties and have gone through the record including the documents submitted by the petitioners. 14. There is no dispute that it is of paramount importance that the parties appearing before the Courts should have full and unflinching confidence in the impartiality of the Courts. The reason for this is that the very edifice of dispensation of justice is built on public confidence. It is because of this confidence that the Courts are able to command the respect and compliance correspondingly. It is the duty of the Court also not to do anything intentionally or unintentionally which may have the potential of impairing this confidence. Further, this principle of the court being fair and impartial is not only qua the accused but also qua the victim. In the instant case also the learned Additional Sessions Judge, Sh. Virender Bhatt had granted the anticipatory bail to three accused persons who were stated to be absconding. This order of grant of bail was passed on 01.08.2011 and was apparently assailed by the respondent by filing a criminal misc. case under Section 482 Cr.P.C. Having done so, the respondent recognized that this was a judicial order to be assailed on the judicial side. Merely because one order was passed in favour of one of the parties does not mean that judge becomes biased qua the other party, and therefore, can seek the transfer of matter from one Court to another Court. If this kind of practice is permitted to be done then practically every effective order which is passed by the Court in any case will necessarily give rise to an occasion to file an application for transfer of the matter from the said Court to another Court which will not only hamper the progress of the case but also the faith in the system as a consequence of which no case will either get decided or even if it is decided against one of the parties, he will be able to file the transfer application and get the case transferred with the result that no judicial work can be effectively transacted. 15. 15. Before a case can be transferred from one Court to another Court, the law is well settled by now that there must be not only an apprehension but also that apprehension must be reasonable and just, although actual bias need not be shown. In the instant case, if this principle is applied then I do not feel that it could be said that the wife of the victim had a reasonable apprehension because she herself in her application for transfer of the matter states that the Judge may or may not decide the matter in their favour. The very fact that the word ‘may’ has been useti by the respondent/applicant clearly shows that even she was not sure as to which way the Judge will decide the matter, and therefore, this was not a ground for transfer in my view. Accordingly, I feel that the order dated 12.08.2011 passed by the learned District and Sessions Judge-1, Tis Hazari Courts, Delhi (as her Ladyship then was) ought not to have been passed. I, accordingly, set aside the said impugned order, however, keeping in view the fact that both the parties, have agreed that the matter may be allocated to Sh. H.S. Sharma, the learned Additional Sessions Judge, Patiala House Courts, Delhi, I feel that there should be no impediment in case the learned District and Sessions Judge-I, Tis Hazari Courts, Delhi allocate the case to Sh. H.S. Sharma, the learned ASJ. However, in case the learned District and Sessions Judge feels that on account of certain exigencies of work or otherwise it is not possible to assign the matter to Sh. H.S. Sharma, the learned ASJ, it shall be open to her to allocate it to such other Additional Sessions Judge as she may consider fit having regard to the facts of the case. Ordered accordingly. 16. Parties are directed to appear before the District and Sessions Judge on 09.1.2012 at 2.00 p.m. for allocation of the matter in terms of the order. 17. With these observations, the petition is disposed of. However, expression of any opinion hereinbefore may not be treated as an expression on the merits of the case.