Research › Search › Judgment

Allahabad High Court · body

2017 DIGILAW 369 (ALL)

Dwarika Prasad Shukla v. State of U. P.

2017-01-30

ANIL KUMAR SRIVASTAVA-II

body2017
JUDGMENT Anil Kumar Srivastava-II,J. Supplementary affidavit filed by the petitioner is taken on record. Heard Shri Sharad Pathak, learned counsel for the petitioner, learned AGA and perused the record. This petition under section 407 Cr.P.C. has been filed for transfer of Sessions Trial No.14 of 1991, which is pending in the court of Additional Sessions Judge, Room No. 2/Special Judge (Gangsters Act), Pratapgarh. Learned counsel for the petitioner submits that on 7.11.2016 lawyers of District Court Pratapgarh were on strike. Statement of examination in chief of P.W. 6 was written in court, but the Presiding Officer was not sitting in the court and was sitting in his Chamber. It is further submitted that the examination in chief of P.W. 6 Constable Nagendra Bahadur Singh was being recorded on dictation of the State Counsel. Accused went to his counsel at 4.00 p.m. and informed him that examination in chief has been recorded in the absence of the Presiding Officer. 18.11.2016 was fixed in the case. It appears that thereafter 28.11.2016 was fixed and then 07.12.2016 was fixed. On 07.12.2016 bailable warrant as well as notice under section 350 Cr.P.C. was issued against the Investigating Officer and Constable Nagendra Bahadur Singh. It appears that on 07.12.2016 an application was moved by the accused through his counsel Shri Vinod Chandra Tripathi, Advocate narrating all these facts. This application was taken up on 16.12.2016. Order sheet dated 16.12.2016 reveals that none appeared before the trial court to press the application dated 07.12.2016. Even on 16.12.2016 none appeared to cross examine the witness. Case diary was also not available and 6.1.2017 was fixed but the cross examination was not done and case diary was not available on 6.1.2017& 10.1.2017 and 30.1.2017 was fixed for cross examination. In the meantime, on 24.1.2017 the transfer application was moved. Learned counsel for the petitioner submits that there is reasonable apprehension in the mind of the accused that he would not be getting fair trial and justice from the trial court. It is further submitted that the learned trial Judge had openly said in the court that he will convict the accused and he has shown his mind. It is further submitted that learned trial judge has called the accused in his chamber and asked him to call his counsel for cross examination of the witness. Leaned counsel for the petitioner has placed reliance upon Mangilal and others Vs. It is further submitted that learned trial judge has called the accused in his chamber and asked him to call his counsel for cross examination of the witness. Leaned counsel for the petitioner has placed reliance upon Mangilal and others Vs. State of M.P. (1994) 4 SCC 564 , Mineral Development Ltd. Vs. The State of Bihar and another, AIR 1960 SC 468 (V 47 C 79), H.L. Trehan and others Vs. Union of India and others (1989)1 SCC 764 , Dr. Bishambhar Dayal Gupta Vs. Aligarh Muslim University, 1993 (22) ALR 213 and Kanaklata Vs. State (NCT of Delhi) and others (2015) 6 SCC 617 . Hon'ble the Apex Court is of the opinion that justice should not only be done but it also appears to have been done. In all the judgments as relied upon by the learned counsel for the petitioner, the same principle has been reiterated although with different factual situations. In Kanak Lata's case (Supra) the factual situation was different as once the finding recorded by the learned trial court that the matter was remanded back, then there was an apprehension in the mind of the applicant that he will not get the justice and the case was transferred. In Mangilal's case (Supra) the facts were different, wherein the lawyers were on strike and an issue as to whythey have proceeded on strike was discussed. While dismissing the appeal in default, certain observations were made by Hon'ble the Apex Court. Likewise in Mineral Development Ltd's case (Supra) the principles governing the "doctrine of bias" have been discussed by Hon'ble the Apex Court. In Dr. Bishambhar Dayal Gupta's case, it was held that one cannot be the judge on his own cause. That was a matter where some administrative action was taken by the Executive Council of Aligarh University. In the present case, it is alleged that the examination in chief of the witness was recorded in the absence of the Presiding Officer. No such application was moved by the accused on the date when the statement was being recorded in the absence of the Presiding Officer, rather the petitioner waited for a long time and moved the application on 07.12.2016 while the alleged statement was recorded on 07.11.2016. No such application was moved by the accused on the date when the statement was being recorded in the absence of the Presiding Officer, rather the petitioner waited for a long time and moved the application on 07.12.2016 while the alleged statement was recorded on 07.11.2016. Even for the sake of argument, it is accepted that on the said date lawyers were on strike, the accused himself could have made an administrative application before the District Judge narrating these facts, but he did not choose to follow the mode. In the order sheet dated 7.11.2016, it is mentioned that the examination-in-chief of P.W.6 is recorded and the cross examination is deferred. It is relevant to mention that the trial relates to the year 1991. Judicial notice of the fact can be taken that large number of old cases rather critically old cases are pending for one or the other reasons. If the Presiding Officer is making an effort to dispose of the critically old cases then such type of applications put a bar in the progress of the trial. It is further submitted that the trial judge has said in open court that he will convict the accused. Trial is at the stage of recording of the evidence. It is not the stage of judgment. However, no Judge could have made such an observation while still the evidence is being recorded. It appears that only in order to make out the case of reasonable apprehension that applicant will not get justice, a ground has been created by the applicant. Such type of applications should be discouraged, rather, such applications ought to have been dismissed with costs. If it was so that the Presiding Officer was not present in the court, then why application moved on 07.12.2016 was not supported with an affidavit? Why the applicant did not dare to say so on affidavit that examination in chief of the witness has been recorded by the Reader in the absence of Presiding Officer? Such type of unscrupulous litigants should not be permitted to take the way to delay the trial and get it disposed of in their own way as and when they like. Such type of unscrupulous litigants should not be permitted to take the way to delay the trial and get it disposed of in their own way as and when they like. So far as the reasonable apprehension is concerned, record itself shows that trial of the year 1991 under Gangesters Act is proceeding against the applicant wherein all the efforts are being made that it should not be decided. Further still the applicant has opportunity to cross-examine the witness. Only a police constable has been examined on the date fixed, i.e. 7.11.2016. It is nowhere stated that any statement is given by the witness police constable on the basis of his personal knowledge. I do not find any ground which could raise apprehension in the min of the applicant that he will not get justice from the learned trial judge Accordingly, the petition is devoid of merit and is dismissed. Office is directed to send a copy of this order forthwith, say, by tomorrow by FAX to the learned trial court.