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2012 DIGILAW 1625 (PAT)

Ran Vijay Singh v. State of Bihar

2012-12-05

BIRENDRA PRASAD VERMA

body2012
ORDER Heard the learned counsel appearing on behalf of the petitioner, the learned Additional Public Prosecutor appearing on behalf of the State and the learned counsel appearing on behalf of the Opposite Party no. 2. 2. The petitioner has filed the present application under Section 407 of the Code of Criminal Procedure, 1973 originally with twin prayers seeking transfer of Sessions Trial No. 431 of 2008 corresponding to Session Trial No. 15 of 2012, arising out of Goh P.S. Case No. 8 of 2005 dated 03.02.2005, as also Session Trial No. 173 of 2010 corresponding to Session Trial No.16 of 2012, arising out of Goh P.S. Case No. 7 of 2005 dated 03.02.2005 from the judgeship of Aurangabad to any other court of competent jurisdiction under any other judgeship in the State of Bihar, as also for setting aside the order dated 01.09.2012 passed in Cr. Misc. No. 41 of 2012 by the learned District and Sessions Judge, Aurangabad, whereby the prayer made on behalf of the petitioner to transfer the aforesaid two sessions trials from the court of learned 1st Additional Sessions Judge, Aurangabad, has been rejected. 3. Learned counsel appearing on behalf of the petitioner as also learned counsel appearing on behalf of the opposite party no.2 were heard on different dates and on one ground or the others, after some arguments the matter was passed over on several dates. Finally, on objections raised by this Court about maintainability of the two prayers in one criminal miscellaneous application, learned counsel appearing on behalf of the petitioner submitted that the petitioner is giving up his prayer for transferring the aforesaid two Sessions Trials from the judgeship of Aurangabad to any other judgeship in the State of Bihar. It was pleaded that the petitioner may be permitted to confine his prayer only with respect to challenge to the order dated 01.09.2012 passed by the learned District and Sessions Judge, Aurangabad refusing to transfer the aforesaid two sessions trials from the court of the learned 1st Additional Sessions Judge, Aurangabad to any other court of competent jurisdiction. 4. The prayer made on behalf of the petitioner to that extent is not opposed either by the learned Additional Public Prosecutor appearing on behalf of the State or the learned counsel appearing on behalf of the opposite party no.2. 4. The prayer made on behalf of the petitioner to that extent is not opposed either by the learned Additional Public Prosecutor appearing on behalf of the State or the learned counsel appearing on behalf of the opposite party no.2. In the aforesaid circumstances, the petitioner was permitted to confine this petition only with respect to one prayer challenging the validity of the impugned order dated 01.09.2012. Consequently, now the present application is confined only with respect to the challenge to the order dated 01.09.2012 passed by the learned Sessions Judge, Aurangabad in aforesaid Cr. Misc. No. 41 of 2012 5. It is not in dispute that the petitioner is facing criminal prosecution with respect to Session Trial No.431 of 2008, corresponding to Session Trial No.15 of 2012, arising out of Goh P.S. Case No. 8 of 2005 dated 03.02.2005 registered under Section 302 and some other allied offences of the Indian Penal Code. It is also not in dispute that the opposite party no. 2 is facing criminal prosecution with respect to Session Trial No.173 of 2010, corresponding to Session Trial No. 16 of 2012, arising out of Goh P.S. Case No. 7 of 2005 dated 03.02.2005. Apparently, both the criminal cases were lodged on the same day, i.e. on 03.02.2005. 6. A Bench of this Court by order dated 11.03.2010, read with the order dated 25.03.2010 passed in Cr. W. J. C. No. 640 of 2008 along with Cr. Misc. No. 50737 of 2008 (Annexure-2) issued a direction that both the aforesaid criminal cases should be tried together by one and the same court. In the light of the aforesaid order and direction issued by a Bench of this Court, both the sessions trials were taken up together by the learned Sessions Judge, Aurangabad. Evidences were led by the parties concerned in both the sessions trials before the learned Sessions Judge, Aurangabad and the arguments were also concluded by both sides in both the cases. By the order dated 26.06.2012 passed separately in both the sessions trials, learned Sessions Judge, Aurangabad fixed the aforesaid cases for judgment for 30.06.2012. Evidences were led by the parties concerned in both the sessions trials before the learned Sessions Judge, Aurangabad and the arguments were also concluded by both sides in both the cases. By the order dated 26.06.2012 passed separately in both the sessions trials, learned Sessions Judge, Aurangabad fixed the aforesaid cases for judgment for 30.06.2012. It is also not in dispute that when the parties were expecting for judgment on the date fixed, then suddenly both the matters were listed on 28.06.2012 suo motu and the learned Sessions Judge, Aurangabad due to certain unavoidable circumstances transferred both the sessions trials to the court of learned Additional Sessions Judge, 1st Aurangabad. Admittedly, aforesaid order dated 28.06.2012 passed by the learned Sessions Judge, Aurangabad was not challenged either by the petitioner or by the opposite party no.2 or by any other concerned person before any higher court. Therefore, that order became final. 7. In view of the aforesaid order dated 28.06.2012 passed by the learned Sessions Judge, Aurangabad, the records of both the sessions trials were placed before the learned 1st Additional Sessions Judge, Aurangbad for hearing of the arguments afresh, since the evidences on behalf of the parties have already been closed. When the matter was being heard before learned 1st Additional Sessions Judge, Aurangbad, then the petitioner moved before the learned Sessions Judge, Aurangbad seeking transfer of both the sessions trials from the Court of the learned 1st Additional Sessions Judge, Aurangbad to some other court. Thereafter, a report was called for and on its receipt, finally by the impugned order dated 01.09.2012 the prayer made on behalf of the petitioner has been rejected. Hence, the present application. 8. Mr. Ajay Kumar Thakur, learned counsel appearing on behalf of the petitioner, states that the petitioner withdraws all his allegations against the Presiding Officer or any other concerned person detailed in the petition filed on his behalf for seeking transfer of both the sessions trials. However, on the ground of equity, he submits that both the matter may be transferred to the next senior most Additional Sessions Judge in the judgeship of Aurangabad. However, on the ground of equity, he submits that both the matter may be transferred to the next senior most Additional Sessions Judge in the judgeship of Aurangabad. According to him, even though the petitioner has withdrawn all the allegations against the Presiding Officer, but still the court may carry some feeling that some petition was filed against him seeking transfer of the case from his court to some other court, and that may not be a happy situation for the court. 9. Mr. Siyaram Shahi, learned counsel appearing on behalf of the opposite party no.2, though initially opposed the prayer made on behalf of the petitioner, but subsequently, in all fairness, he submitted that he may not have any grievance if the matter is transferred to next senior most Additional Sessions Judge, in the judgeship of Aurangabad, after the learned Sessions Judge and the learned 1st Additional Sessions Judge, Aurangabad. 10. There is a well accepted maxim that justice should not only be done, but it should appear to have been done. In the present case though this court does not find any legal infirmity or procedural irregularity in the impugned order dated 01.09.2012 passed by the learned Sessions Judge, Aurangabad warranting any interference by this Court; yet in view of fair stand taken by the learned counsel appearing for the parties and for doing complete justice in this matter, this Court is of the opinion that both the Sessions trial should be heard and decided by the next senior most Additional Sessions Judge in the judgeship of Aurangabad. Apparently, the learned 1st Additional Sessions Judge, Aurangabad may not feel happy to decide the aforesaid two sessions trials in the background of litigation before this Court and the petition filed before the learned Sessions Judge, Aurangabad seeking transfer of the cases. From the impugned order, this Court finds that the learned 1st Additional Sessions Judge had expressed his desire that both the matters may be transferred from his court. In the aforesaid circumstances, this Court directs that both the matter should be placed for final disposal before the next senior most Additional District and Sessions Judge, Aurangabad after the 1st Additional Sessions Judge, Aurangabad. 11. In the aforesaid circumstances, this Court directs that both the matter should be placed for final disposal before the next senior most Additional District and Sessions Judge, Aurangabad after the 1st Additional Sessions Judge, Aurangabad. 11. In the result, the present application stands disposed of with a direction to the learned Sessions Judge, Aurangabad to recall the records of aforesaid Session Trial No. 431 of 2008, corresponding to Session Trial No. 15 of 2012 as also Session Trial No.173 of 2010, corresponding to Session Trial No. 16 of 2012 from the court of the learned 1st Additional Sessions Judge, Aurangabad, and be assigned to the next senior most Additional Sessions Judge, Aurangabad for their final disposal within a specified period. Learned transferee trial court shall make all endeavours to dispose of the aforesaid two sessions trials within a maximum period of three months from the date of the receipt of the records, after the order is being passed by the learned Sessions Judge, Aurangabad in compliance of the present order. 12. With the aforesaid observations and directions, this application stands finally disposed of.