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2012 DIGILAW 774 (PAT)

Upendra Singh v. State of Bihar

2012-05-14

AHSANUDDIN AMANULLAH

body2012
ORAL ORDER Heard Mr. Aminuddin Ahmad Khan, learned counsel for the petitioners, Mr. Manan Kumar Mishra, learned senior counsel for the informant and Dr. Indiwar Kumari, learned A.P.P. for the State. 2. The present application has been filed by the petitioners, who are facing trial at Gopalganj in Sessions Trial No. 23 of 2010, for transfer of the said case to the adjacent district of Siwan. 3. Learned counsel for the petitioners submits that a member of the Bar at Gopalganj is an accused in the counter case filed on behalf of the petitioners against the informant and others of the present case. It is submitted that in view of the said learned advocate being a member of the Bar, the petitioners have genuine apprehension that their case would not be properly defended which might result in miscarriage of justice. Learned counsel submits that the cause of action was precipitated on 16.02.2012 when the petitioners were literally left with no learned counsel being ready to appear on their behalf and in this regard it has been brought on record the objections signed by various lawyers, who were initially appearing on behalf of the petitioners, stating that for various reasons they would not be able to defend the petitioners. The said petitions were noticed by the court concerned in its order dated 16.02.2012 in which it is also mentioned that earlier the petitioners were defended by one Mr. Birendra Singh, learned counsel coming from Siwan but he had also give up appearing on behalf of the petitioners in the present case. When the case was heard earlier on 27.02.2012, this Court had noticed such facts and had asked the District and Sessions Judge, Gopalganj to make a preliminary enquiry in the matter by calling the advocates who had filed the petition before the court concerned and to hear their side of the story. He was also directed to call five other lawyers who, according to him, could assist the court in a competent way, being practitioners on the criminal side and who were willing to offer their services. Pursuant to the same, the District and Sessions Judge, Gopalganj has submitted his report dated 03.04.2012. From the report, it transpires that the submissions of learned counsel for the petitioners and averments made in the revision application have been found to be true. Pursuant to the same, the District and Sessions Judge, Gopalganj has submitted his report dated 03.04.2012. From the report, it transpires that the submissions of learned counsel for the petitioners and averments made in the revision application have been found to be true. The District and Sessions Judge, Gopalganj then called upon five other lawyers to ascertain as to whether they were willing and ready to defend in the aforesaid case. They appeared before him on 28.03.2012 and upon being explained the situation, they declined to act as defence counsel. The said lawyers were 1) Sri Ravindra Singh, 2) Sri Prem Kumar Singh, 3) Sri Adya Prasad Tiwary, 4) Sri Abu Shamim Ansari and 5) Sri Yudhisthir Mishra. The District and Sessions Judge, Gopalganj tried to further explore the possibility as to whether any criminal lawyer was willing to act as defence in the present case and thus he called five more lawyers to take their view. They appeared before him on 29.03.2012. Four of them namely, 1) Sri Ali Imam, 2) Sri Daroga Singh, 3) Sri Harishchandra Mishra and 4) Sri Devendra Kumar Mani Tripathi, for one or the other reason expressed their unwillingness to act as defence counsel in the case. The fifth lawyer namely, Sri P.N. Singh sought time to express his final view and on 02.04.2012, he also expressed his unwillingness to appear as defence counsel in the case. The District and Sessions Judge, Gopalganj has given his opinion that some influence had been exercised on the aforesaid learned advocates not to act as defence counsel. He has further written that it is difficult to find a set of five competent lawyers who were willing and ready to defend in the said case. 4. Upon receipt of the said report, the informant has filed supplementary counter affidavit in which certificates have been brought on record which are shown to have been written by various advocates including Sri Prabhu Nath Singh (Sri P.N. Singh) stating that they had no objection to be engaged as defence lawyer, if the accused persons want to engage them. 4. Upon receipt of the said report, the informant has filed supplementary counter affidavit in which certificates have been brought on record which are shown to have been written by various advocates including Sri Prabhu Nath Singh (Sri P.N. Singh) stating that they had no objection to be engaged as defence lawyer, if the accused persons want to engage them. On the basis of the same, it is stated that the stand of the petitioners that because of influence or reluctance of learned counsels in the district of Gopalganj to appear as defence counsels, they are likely to suffer prejudice and their cases may not be defended properly resulting in injustice as well as miscarriage of justice is not justified. It is also the stand of the informant, which has been stated at paragraph no. 12 of the supplementary counter affidavit that one of the accused namely, Sanjay Singh who is an absconder in the case and is a notorious criminal of the locality and is wanted in many criminal cases, by not surrendering or being apprehended is giving threatening to the witnesses of the informant and if the cases are transferred to a place outside Gopalganj there is every likelihood of the prosecution witnesses in the present case having to face threat from the said Sanjay Singh and thus it might hamper the prosecution in properly bringing all the evidence before the court during the trial. In paragraph no. 13 it is stated that most of the material witnesses are ladies and threat from Sanjay Singh is more effective on them which may result in them not being able to depose as prosecution witnesses. 5. Learned counsel for the petitioners submits that the said Sanjay Singh is not related to the petitioners and further if there is threat being given to the informant and other prosecution witnesses then for the first time such an application has been filed before the Superintendent of Police, Gopalganj only on 26.04.2012. It is thus submitted that the influence of Sanjay Singh preventing the witnesses to appear in the present case does not inspire much confidence since the witnesses deposing or not deposing in the present case shall not have effect when he shall have to face trial when he either surrenders or is brought before the court and the witnesses shall then have to be re-examined afresh in the other case. In that view of the matter, it is submitted that the threat from Sanjay Singh is not a good ground for resisting the transfer of sessions trial in the present case. 6. This Court has given serious consideration to the submissions made by the learned counsels. It appears from the report of the District and Sessions Judge, Gopalganj that grounds taken by the petitioners with regard to the learned advocates refusing to appear as defence counsel in the sessions trial in question have been found to be true. Further, the efforts made by the District and Sessions Judge in firstly calling for five lawyers, who according to him, were competent on the criminal side to act as defence lawyers and they having declined to accept the responsibility and the further effort made by calling for another set of five lawyers also resulting in the same, this Court has no reason to disbelieve or not to rely upon the report submitted by the District and Sessions Judge, Gopalganj. 7. At this stage, learned counsel for the informant makes a plea that notices be issued to the advocates concerned so that they should clarify as to under what circumstances they had declined to take up the role of defence counsel before the District and Sessions Judge and when once they had declined to act defence counsel in the present case before the District and Sessions Judge why they again expressed their willingness and were ready for the same, if approached by the concerned party. This Court would not like to create a situation where unnecessarily either the District and Sessions Judge, Gopalganj or the learned advocates would be put to embarrassment while being asked to clarify the situation as to why earlier they declined and later on expressed their willingness to act as defence counsel. The certificate given by them is after about a month of they being called by the District and Sessions Judge and in the same it is not stated that they had earlier not given such statement before the District and Sessions Judge. Thus, on overall consideration this Court finds that it is an extraordinary case where this Court should interfere and exercise its power for transferring the Sessions Trial No. 23 of 2010 pending in the Civil Courts at Gopalganj to any other district. Thus, on overall consideration this Court finds that it is an extraordinary case where this Court should interfere and exercise its power for transferring the Sessions Trial No. 23 of 2010 pending in the Civil Courts at Gopalganj to any other district. This Court tried to solicit the opinion of learned counsel appearing for the informant as to whether he had any preferences as to the place where the trial can be conducted. On this there is unanimity between the parties that the case be sent to the court of competent jurisdiction in the Civil Courts at Siwan. Accordingly, Sessions Trial No. 23 of 2010 arising out of Gopalganj P.S. Case No. 85 of 2009 stands withdrawn from the court in which it is pending in the judgeship of Gopalganj and shall be proceeded with upon transfer in the judgeship of Siwan. The District and Sessions Judge, Siwan shall either hold the trial himself or send it to a court of competent jurisdiction in his judgeship. 8. Let the petitioners appear before the District and Sessions, Gopalganj along with a copy of this order on 11.06.2012 on which date he shall call for the records from the court concerned and transmit the same to the District and Sessions Judge, Siwan. The petitioners shall thereafter appear before the District and Sessions Judge, Siwan along with a copy of this order on 02.07.2012. The District and Sessions Judge, Siwan shall fix the next date in the case and also indicate the court which shall conduct the trial. The trial shall then proceed from the stage from where the records have been received from the court of Gopalganj. 9. This Court is conscious of the ground realities and as has come either in the pleadings or from submissions of the learned counsels for the parties there are chances of there being situations which are not conducive to the witnesses deposing. In that view of the matter, the Superintendent of Police, Gopalganj is directed to ensure that whenever the informant or prosecution witnesses have to go and depose in the present sessions trial, they shall be provided with proper police escort which shall take them from their residence in Gopalganj to the Civil Court, Siwan and thereafter ensure that they are brought back to their home in Gopalganj. For the said purpose let the informant produce a copy of this order before the Superintendent of Police, Gopalganj for the needful. The informant shall also communicate to the Superintendent of Police, Gopalganj at least one week in advance with regard to the date on which a witness has to go from Gopalganj to Siwan to depose in the present case. That having been done, the Superintendent of Police, Gopalganj shall comply with the order as discussed above. This application accordingly stands allowed in terms indicated aforesaid. 10. There is some controversy with regard to the fact as to whether out of the same police case there are other sessions trial pending or not. If it is true that there are other sessions trial pending with regard to the same police case i.e., Trial No. 813 of 2010, then either of the parties are liberty to file an application before this Court for appropriate orders since it is desirable that the same court hears and conducts the trial arising out of the same police case so as to avoid duplicity and the chances of passing of conflicting orders. 11. Let the order be communicated to the court concerned through fax at the cost of the petitioners.