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2013 DIGILAW 1160 (MP)

Rakesh Sharma v. State of M. P.

2013-09-25

BRIJ KISHORE DUBE

body2013
ORDER Brij Kishore Dubey, J. 1. This petition under Section 407 of Cr.P.C. has been filed by the petitioners herein/accused for transferring the Sessions Trial No. 207/2013 from the Court of VIII Additional Sessions Judge, Gwalior to another Competent Court at Gwalior. The factual matrix of the case, in brief, are that a Sessions Trial No. 538/2012 (State of M.P. v. Sanju & Deepu) was pending before Smt. Sangeeta Madan, VIII Additional Sessions Judge, Gwalior in which prosecutrix, Karishma Sharma was summoned as prosecution witness for recording her statement. She was present before the Court on 19.02.2013. During the course of her deposition, she stated that she is minor and her mother Mamta Sharma had sold her to Girraj and his father and she does not want to go with them. It is further stated that her mother had forcibly got her married at the age of 16 years. On this, the Presiding Officer send a letter dated 19.02.2013 to the Officer-in-Charge, Police Station Indarganj, Gwalior with a direction to register the complaint of the prosecutrix and take necessary action against the culprit, so also directed to provide security to the prosecutrix. On this, an FIR at Crime No. 69/2013 under Sections 372, 373, 366A, 120B of IPC and 6 of Child Marriage Restraint Act has been registered at Police Station Indarganj, Gwalior against five accused persons including the present petitioners. After completing the investigation, challan has been filed against the accused persons before the Committal Court, which on its turn, committed the case to the Court of Sessions from where it was received by VIII Additional Sessions Judge, Gwalior for trial and is pending before it. 2. The accused including the present petitioners had filed an application under Section 408 of Cr.P.C. for transferring the case from VIII Additional Sessions Judge to another competent Court before the learned Sessions Judge, Gwalior, which has been rejected, hence, this petition. 3. 2. The accused including the present petitioners had filed an application under Section 408 of Cr.P.C. for transferring the case from VIII Additional Sessions Judge to another competent Court before the learned Sessions Judge, Gwalior, which has been rejected, hence, this petition. 3. Learned counsel for the petitioners submits that the petitioners herein have submitted an application before VIII Additional Sessions Judge, Gwalior stating therein that a case has been registered on the basis of complaint lodged by the learned Judge and during the course of investigation police recorded statements of two witnesses, Dinesh Singh Yadav and Ravi Mahore who are working with the learned Judge in her Court, therefore, the trial should not be conducted by her and under the doctrine of nemo debit esse judex in propria causa case may be transferred to another competent Court. The learned Presiding Officer orally informed that she has no power to transfer the case, thereafter, the accused made a transfer petition before the Sessions Judge, Gwalior who by relying upon the provisions of Section 344 of Cr.P.C. erroneously dismissed the petition. It is further submitted by the learned counsel that since the FIR has been registered on the direction of VIII Additional Sessions Judge, Gwalior and the alleged incident occurred in her Court and, she (Smt. Sangeeta Madan) had taken more than a formal part in the investigation which shows bias. The petitioners have a reasonable apprehension that they may not get justice and the trial may not be conducted fairly, therefore, the case may be transferred from her Court to another competent Court. 4. In response, learned Public Prosecutor argued in support of the impugned order dated 05.07.2013 passed by the Sessions Judge, Gwalior and prayed for rejection of the petition. 5. It is a fundamental importance that justice should not only be done but should manifestly and undoubtedly be seen to be done. Nothing is to be done which creates even a suspicion that there has been a improper interference with the course of justice. Where there is reasonable apprehension in the mind of the accused that a fair and impartial trial or inquiry cannot be had before the Court in which such trial or inquiry is pending, the transfer should be ordered. 6. Where there is reasonable apprehension in the mind of the accused that a fair and impartial trial or inquiry cannot be had before the Court in which such trial or inquiry is pending, the transfer should be ordered. 6. It is transpired from the record that the alleged happening is occurred in the presence of the Presiding Officer of VIII Additional Sessions Judge, Gwalior and the FIR at Crime No. 69/2013 under Sections 372, 373, 366A, 120B of IPC and 6 of Child Marriage Restraint Act has been registered at Police Station, Indarganj, Gwalior at her instance. The letter dated 19.02.2013 addressed to the Officer-in-Charge, Police Station, Indarganj reads as under:- 7. During the course of investigation, the police recorded the statements of five witnesses, namely; Narendra Singh, Shiv Sahay, Prosecutrix, Dinesh Singh Yadav and Ravi Mahore. Dinesh Singh Yadav is a Court Moharir and Ravi Mahore is Steno to Smt. Sangeeta Madan, VIII Additional Sessions Judge who were present at the time of alleged incident and they narrated the incident/happening occurred in the Court. 8. In the aforesaid situation, the petition deserves to be and is hereby allowed. The learned Sessions Judge, Gwalior is requested to withdraw the Sessions Trial No. 207/2013 forthwith from the Court of VIII Additional Sessions Judge, Gwalior and to transfer the same to another competent Court for adjudication in accordance with law. With the aforesaid direction, this petition stands allowed and disposed of.