Research › Search › Judgment

Himachal Pradesh High Court · body

2018 DIGILAW 2087 (HP)

Ramesh Kumar v. State of H. P.

2018-11-27

TARLOK SINGH CHAUHAN

body2018
JUDGMENT : TARLOK SINGH CHAUHAN, J. 1. By medium of this petition under Sections 407/482 Cr.P.C. the petitioners have sought transfer of case i.e. Sessions Trial No.10/7 of 2017 titled State vs. Ramesh Kumar and others from the Court of learned Special Judge, Bilaspur, District Bilaspur to any other Court/Court of learned Special Judge, Mandi, District Mandi, H.P. 2. The petitioners are the prime accused in FIR No. 229/2016 registered against them on 14.10.2016 at Police Station, Sadar, District Bilaspur, H.P. under Sections 354-A, 341, 232, 325, 504, 506 and 34 IPC read with Section 8 of POCSO Act. After completion of the investigation, Final Report under Section 173 Cr.P.C. stands filed and the petitioners also stand summoned. 3. The only ground sought for transfer of the case is that one of the alleged victim/witness is the daughter of Ex-Member of Legislative Assembly (MLA) of H.P., who is prominent Advocate practicing in District Courts, Bilaspur and the Bar Association, District Bilaspur has passed a resolution not to defend the petitioners in the present criminal case. 4. On 13.11.2018, the learned counsel for the petitioners sought time to place on record the copy of alleged resolution passed by the Bar Association, Bilaspur, but today he candidly admitted that there in fact is no such resolution. 5. It cannot be denied that the petitioners in terms of Article 21 of the Constitution of India are entitled to a fair trial but then can they seek transfer of the case, that too, without placing any substantive material on record to show that the Advocates at Bilaspur are not ready to defend the petitioners. 6. It is more than settled that seeking transfer at the drop of a hat is inconceivable. An order of transfer is not to be passed as a matter of routine or merely because an interested party has expressed some apprehension about proper conduct of the trial. The power in such cases has to be exercised cautiously and in exceptional situations, where it becomes necessary to do so to provide credibility to the trial. There has to be a real apprehension that there would be miscarriage of justice, which is absent in the present case. 7. The power in such cases has to be exercised cautiously and in exceptional situations, where it becomes necessary to do so to provide credibility to the trial. There has to be a real apprehension that there would be miscarriage of justice, which is absent in the present case. 7. Here, it shall be apposite to refer to one of the fairly recent judgment of the Hon’ble Supreme Court in Usmangani Adambhai Vahora vs. State of Gujarat and another (2016) 3 SCC 370 , wherein while dealing with the question of transfer of case, the Hon’ble Supreme Court observed as under: “6. On a careful scrutiny of the order passed by the High Court, it is not clear whether the High Court has been convinced that the accused has any real apprehension or bias against the trial judge. However, the observations of the learned single Judge, as it seems to us, is fundamentally based on apprehension and to justify the same, he has referred to the remarks offered by the learned Additional Sessions Judge to the Sessions Judge when explanation was called for. First, we shall refer to the issue of apprehension. The apprehension is based on some kind of conversation between the informant and another that the accused persons shall be convicted. There is also an assertion that the trial judge is a convicting Judge and that is why, the High Court has observed that he is in dilemma. 7. So far as apprehension is concerned, it has to be one which would establish that justice will not be done. In this context, we may profitably refer to a passage from a three-Judge Bench decision in Gurcharan Dass Chadha v. State of Rajasthan, AIR 1966 SC 1418 , wherein it has been held: (AIR p. 1423, para 13) “13.… The law with regard to transfer of cases is well-settled. A case is transferred if there is a reasonable apprehension on the part of a party to a case that justice will not be done. A petitioner is not required to demonstrate that justice will inevitably fail. He is entitled to a transfer if he shows circumstances from which it can be inferred that he entertains an apprehension and that it is reasonable in the circumstances alleged. A petitioner is not required to demonstrate that justice will inevitably fail. He is entitled to a transfer if he shows circumstances from which it can be inferred that he entertains an apprehension and that it is reasonable in the circumstances alleged. It is one of the principles of the administration of justice that justice should not only be done but it should be seen to be done. However, a mere allegation that there is apprehension that justice will not be done in a given case does not suffice. The Court has further to see whether the apprehension is reasonable or not. To judge of the reasonableness of the apprehension the state of the mind of the person who entertains the apprehension is no doubt relevant but that is not all. The apprehension must not only be entertained but must appear to the Court to be a reasonable apprehension.” 8. This Court in Abdul Nazar Madani v. State of T.N., (2000) 6 SCC 204 , has ruled that: (SCC p. 210-11, para 7) “7.....The apprehension of not getting a fair and impartial inquiry or trial is required to be reasonable and not imaginary, based upon conjectures and surmises. If it appears that the dispensation of criminal justice is not possible impartially and objectively and without any bias, before any court or even at any place, the appropriate court may transfer the case to another court where it feels that holding of fair and proper trial is conducive. No universal or hard-and-fast rules can be prescribed for deciding a transfer petition which has always to be decided on the basis of the facts of each case. Convenience of the parties including the witnesses to be produced at the trial is also a relevant consideration for deciding the transfer petition. The convenience of the parties does not necessarily mean the convenience of the petitioners alone who approached the court on misconceived notions of apprehension. Convenience for the purposes of transfer means the convenience of the prosecution, other accused, the witnesses and the larger interest of the society.” 9. The convenience of the parties does not necessarily mean the convenience of the petitioners alone who approached the court on misconceived notions of apprehension. Convenience for the purposes of transfer means the convenience of the prosecution, other accused, the witnesses and the larger interest of the society.” 9. In Captain Amarinder Singh v. Parkash Singh Badal and others, (2009) 6 SCC 260 , while dealing with an application for transfer petition preferred under Section 406 CrPC, a three-Judge Bench has opined that for transfer of a criminal case, there must be a reasonable apprehension on the part of the party to a case that justice will not be done. It has also been observed therein that mere an allegation that there is an apprehension that justice will not be done in a given case alone does not suffice. It is also required on the part of the Court to see whether the apprehension alleged is reasonable or not, for the apprehension must not only be entertained but must appear to the Court to be a reasonable apprehension. In the said context, the Court has held thus: (SCC p.273, paras 19-20) “19. Assurance of a fair trial is the first imperative of the dispensation of justice. The purpose of the criminal trial is to dispense fair and impartial justice uninfluenced by extraneous considerations. When it is shown that the public confidence in the fairness of a trial would be seriously undermined, the aggrieved party can seek the transfer of a case within the State under Section 407 and anywhere in the country under Section 406 CrPC. 20. However, the apprehension of not getting a fair and impartial inquiry or trial is required to be reasonable and not imaginary. Free and fair trial is sine qua non of Article 21 of the Constitution. If the criminal trial is not free and fair and if it is biased, judicial fairness and the criminal justice system would be at stake, shaking the confidence of the public in the system. The apprehension must appear to the court to be a reasonable one.” 10. If the criminal trial is not free and fair and if it is biased, judicial fairness and the criminal justice system would be at stake, shaking the confidence of the public in the system. The apprehension must appear to the court to be a reasonable one.” 10. In Lalu Prasad alias Lalu Prasad Yadav v. State of Jharkhand, (2013) 8 SCC 593 , the Court, repelling the submission that because some of the distantly related members were in the midst of the Chief Minister, opined that from the said fact it cannot be presumed that the Presiding Judge would conclude against the appellant. From the said decision, we think it appropriate to reproduce the following passage: (SCC p.600, para 20) “20. Independence of judiciary is the basic feature of the Constitution. It demands that a Judge who presides over the trial, the Public Prosecutor who presents the case on behalf of the State and the lawyer vis-à-vis amicus curiae who represents the accused must work together in harmony in the public interest of justice uninfluenced by the personality of the accused or those managing the affairs of the State. They must ensure that their working does not lead to creation of conflict between justice and jurisprudence. A person whether he is a judicial officer or a Public Prosecutor or a lawyer defending the accused should always uphold the dignity of their high office with a full sense of responsibility and see that its value in no circumstance gets devalued. The public interest demands that the trial should be conducted in a fair manner and the administration of justice would be fair and independent.” The aforesaid passage, as we perceive, clearly lays emphasis on sustenance of majesty of law by all concerned. Seeking transfer at the drop of a hat is inconceivable. An order of transfer is not to be passed as a matter of routine or merely because an interested party has expressed some apprehension about proper conduct of the trial. The power has to be exercised cautiously and in exceptional situations, where it becomes necessary to do so to provide credibility to the trial. There has to be a real apprehension that there would be miscarriage of justice. (See Nahar Singh Yadav vs. Union of India (2011) 1 SCC 307 ).” 8. The power has to be exercised cautiously and in exceptional situations, where it becomes necessary to do so to provide credibility to the trial. There has to be a real apprehension that there would be miscarriage of justice. (See Nahar Singh Yadav vs. Union of India (2011) 1 SCC 307 ).” 8. Bearing in mind the aforesaid exposition of law and now adverting to the facts of the instant case, I am disposed to think that apprehension which has been stated by the petitioners is absolutely mercurial and cannot remotely be stated to be reasonable and, therefore, cannot be acceded to. Encouraging such kind of practice would only embolden the unscrupulous litigants to indulge themselves in court hunting. The petitioners have not even cared to name of a few advocates whom they contacted and they refused to conduct their case on the aforesaid ground and this fact in itself casts a serious doubt on the bonafides of the petitioners. 9. In view of the aforesaid discussion, I find no merit in this petition and the same is accordingly dismissed, so also the pending applications if any.