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2019 DIGILAW 257 (JK)

Ram Singh v. State of J&K

2019-04-26

SANJAY KUMAR GUPTA

body2019
ORDER : Sanjay Kumar Gupta, J. 1. Through the medium of instant petition filed under Section 526 Cr.P.C., the petitioner inter alia seeks transfer of criminal challan in FIR No. 16/2018 for the commission of offence under Sections 306/34 RPC, titled State v/s Milap Chand and others, pending trial in the court of Principal District and Sessions Judge, Ramban to any other court of competent jurisdiction at Jammu. 2. In the petition, it has been stated that the petitioner is the father of deceased Pankaj Singh, who committed suicide because of the harassment being meted out to him in the hands of accused/respondent Nos. 2 to 4 herein. It has been further stated that son of the petitioner was married with accused No. 2 in the year 2013 and accused Nos. 3 & 4 are parents in law of the deceased; that relationship between the deceased and accused No. 1 were hostile after 2015; that accused/wife Pushpa Devi, who was pursuing her M.Sc. in Zoology from Central University, Dehradun and after higher education deserted the son of the petitioner and left the matrimonial house without informing him; that deceased made numerous efforts to bring back the accused No. 1 so as to live as husband and wife but the behavior of the deceased was so aggravated which made the deceased to commit suicide; that Police Station, Ramsoo pursuant to committing of suicide by the deceased on 23.03.2018 registered an FIR alleging therein that one Swift Dzire Car bearing Registration No. JK02B-8289, which was being driven by Pankaj Singh S/o. Ram Singh R/o Dessa Doda from Kot Pogal towards Ukhral, in a rash and negligent manner, had met with an accident at Shalgarh, at about 11.15 am, thus FIR No. 16/2018 for offence under Section 279/337 RPC was registered and the investigation was taken up by Incharge Police Post Ukhral, who visited the spot where he found that the driver of the vehicle, Pankaj Singh had already succumbed to injuries, so the offence under Section 304-A RPC was added. During course of investigation, it came in light that the said incident was not an accident, but was a suicide committed by the deceased thus a SIT was constituted to investigate the case, which recorded the statements of various witnesses and also collected all other material evidence in the case. During course of investigation, it came in light that the said incident was not an accident, but was a suicide committed by the deceased thus a SIT was constituted to investigate the case, which recorded the statements of various witnesses and also collected all other material evidence in the case. In the course of investigation, it was established that the deceased Pankaj Singh, who was married to Pushpa Devi daughter of Milap Chand, in the month of October, 2013 had some matrimonial dispute with his wife and parents in law. The wife of the deceased and his parents in law, were always taunting and torturing the deceased for his law academic qualification; that a female child was born in the month of September, 2017 but even thereafter the things did not improve; that despite various attempts on part of the deceased to bring respondent No. 2 and the minor daughter back to their home, the same did not happen, which had mentally frustrated the deceased to such a level which compelled him to commit suicide; that on 22.03.2018 the deceased informed his relatives and friends that he is going to his in-law's house at Pogal to make a last attempt to bring his wife along with baby daughter back to matrimonial home and in case he failed this time in his attempt he will finish himself by rolling down his vehicle in a gorge; that on 22.03.2018 in the evening, the wife of the deceased and his parents in law again tortured the deceased and his wife was not permitted to accompany him by his parents in law, therefore, have instigated and abetted the deceased for committing suicide, thus the offence under Section 306 RPC was found proved. 3. It has been further stated that after presentation of the challan before the competent court of law, the public prosecutor who has to conduct the trial on behalf of the State before the trial court is the first cousin brother of the accused Dharmi Devi and brother in law of the accused/respondent No. 3, therefore, the petitioner being the father of the deceased and being the star witness in the case will not get justice in the event of conducting the trial by the said public prosecutor before the court below. There is no body from the legal profession, who is ready to appear in the case on behalf of the petitioner/complainant to prosecute the case. The members of the bar association refused to represent the petitioner in the court of learned Sessions Judge, Ramban where the challan is pending. It has further been stated that the petitioner while opposing the bail application before the CJM, Ramban engaged one local counsel namely Suraj Singh Parihar, who after receiving the brief about the incident, refused to appear by attributing that the son-in-law of the accused No. 1, namely Karnail Singh who is a practicing lawyer at District Court Ramban is close friend. Thereafter petitioner engaged another counsel, namely, Tassudaq Malik who received an amount of Rs. 25,000/- as a counsel fee from the petitioner but subsequently refused to appear in the case, resultantly he refunded the fee through Bank account No. 582 maintained by the wife of the petitioner; that the accused, who, at present are residing at Jammu and for just & fair trial, it would be proper if the criminal trial of the case pending in the court of Principal Sessions Judge, Ramban is transferred to any other court at Jammu. 4. State has filed objections wherein except narrating the factual matrix of the petition, has not taken any substantial defence. 5. I have considered the rival contentions of learned counsel for the parties and perused the scanned record. 6. Section 526 Cr.P.C. reads as under:- "526. 4. State has filed objections wherein except narrating the factual matrix of the petition, has not taken any substantial defence. 5. I have considered the rival contentions of learned counsel for the parties and perused the scanned record. 6. Section 526 Cr.P.C. reads as under:- "526. High Court may transfer case or itself try it.- (1) whenever it is made to appear to the High Court- (a) that a fair and impartial inquiry or trial cannot be had in any Criminal Court subordinate thereto; or (b) that some question of law of unusual difficulty is likely to arise; or (c) that a view of the place in or near which any offence has been committed may be required for the satisfactory inquiry into or trial of the same; or (d) that an order under this Section will tend to the general convenience of the parties or witness; or (e) that such an order is expedient for the ends of justice, or is required by any provision of this Code, it may order- (i) that any offence be inquired into or tried by any Court not empowered under Sections 177 to 184 (both inclusive), but in other respects competent to inquire into or try such offence; (ii) that any particular case or appeal, or class of cases or appeals, be transferred from a Criminal Court subordinate to its authority to any other such Criminal Court of equal or superior jurisdiction; (iii) that any particular case or appeal be transferred to and tried before itself; or (iv) That an accused person be committed for trial to itself or to a court of session." 7. From bare perusal of this section, it is evident that High court has power to transfer criminal case from one Sessions Division to another Sessions Division on various grounds prescribed in this section. However, generally when application is made by a party to criminal court, it can be transferred on the grounds that a fair and impartial inquiry or trial cannot be held in any subordinate criminal court; that is for the general convenience of the parties or witnesses. Further, a criminal case can be transferred when it appears that an order about such transfer can be expedient for ends of justice and for promotion of ends of justice. These are some of valid grounds for transfer; which are exhaustive one. Further, a criminal case can be transferred when it appears that an order about such transfer can be expedient for ends of justice and for promotion of ends of justice. These are some of valid grounds for transfer; which are exhaustive one. There are also other grounds which the High Court can think proper in the facts & circumstances of a particular case. 8. In the present case, the petitioner's son has committed suicide on account of harassment meted out to him at the hands of accused persons, who were his wife and parents-in-law. The petitioner has stated on oath that the public prosecutor, who has to conduct the trial on behalf of the State before the trial court, is the first cousin brother of the accused Dharmi Devi and brother in law of the accused/respondent No. 3, therefore, the petitioner being the father of the deceased and being the star witness in the case will not get justice in the event of conducting the trial by the said public prosecutor before the court below. It is further ground of petitioner that no body from the legal profession is ready to appear in the case on behalf of the petitioner/complainant to prosecute the case. The members of the bar association has refused to represent the petitioner in the court of learned Sessions Judge, Ramban. 9. These facts have not been denied by the State in their objections. Accused/respondents have not filed any objections, so an inference can be drawn, that petitioner has stated correct in his petition. It has further been stated that accused are also residents of Jammu. If it is so, then no prejudice shall be caused to accused also. Both victim and accused can prosecute the case more conveniently at Jammu than Ramban. 10. In Mohd. Akhtar v State of J&K 2018 (5) SCC 497 , it is held as under:- "Though various submissions were advanced by Ms. Indira Jaising, learned senior counsel appearing for the petitioner, the crux of the matter is how to proceed with the trial so that it is effective regard being had to the fundamental principle of fairness of a trial. She has drawn our attention to many an authority of this Court. We need not refer to all the judgments, except two. In Maneka Sanjay Gandhi vs. Rani Jethmalani, (1979) 4 SCC 167 , the Court has observed thus:- "2. She has drawn our attention to many an authority of this Court. We need not refer to all the judgments, except two. In Maneka Sanjay Gandhi vs. Rani Jethmalani, (1979) 4 SCC 167 , the Court has observed thus:- "2. Assurance of a fair trial is the first imperative of the dispensation of justice and the central criterion for the court to consider when a motion for transfer is made is not the hypersensitivity or relative convenience of a party or easy availability of legal services or like mini-grievances. Something more substantial, more compelling, more imperilling, from the point of view of public justice and its attendant environment, is necessitous if the Court is to exercise its power of transfer. This is the cardinal principle although the circumstances may be myriad and vary from case to case. We have to test the petitioner's grounds on this touchstone bearing in mind the rule that normally the complainant has the right to choose any court having jurisdiction and the accused cannot dictate where the case against him should be tried. Even so, the process of justice should not harass the parties and from that angle the court may weigh the circumstances. 5. ...It is becoming a frequent phenomenon in our country that court proceedings are being disturbed by rude hoodlums and unruly crowds, jostling, jeering or cheering and disrupting the judicial hearing with menaces, noises and worse. This tendency of toughs and street roughs to violate the serenity of court is obstructive of the course of justice and must surely be stamped out. Likewise, the safety of the person of an accused or complainant is an essential condition for participation in a trial and where that is put in peril by commotion, tumult or threat on account of pathological conditions prevalent in a particular venue, the request for a transfer may not be dismissed summarily. It causes disquiet and concern to a Court of justice if a person seeking justice is unable to appear, present one's case, bring one's witnesses or adduce evidence. Indeed, it is the duty of the court to assure propitious conditions which conduce to comparative tranquillity at the trial. Turbulent conditions putting the accused's life in danger or creating chaos inside the court hall may jettison public justice. Indeed, it is the duty of the court to assure propitious conditions which conduce to comparative tranquillity at the trial. Turbulent conditions putting the accused's life in danger or creating chaos inside the court hall may jettison public justice. If this vice is peculiar to a particular place and is persistent the transfer of the case from that place may become necessary. Likewise, if there is general consternation or atmosphere of tension or raging masses of people in the entire region taking sides and polluting the climate, vitiating the necessary neutrality to hold a detached judicial trial, the situation may be said to have deteriorated to such an extent as to warrant transfer...." In Asha Ranjan v. State of Bihar, (2017) 4 SCC 397 , the two-Judge Bench, after referring to a three-Judge Bench decision in Rattiram vs. State of M.P. (2012) 4 SCC 516 , has held thus:- "It is settled in law that the right under Article 21 is not absolute. It can be curtailed in accordance with law. The curtailment of the right is permissible by following due procedure which can withstand the test of reasonableness. The submission that if the accused is transferred from jail in Siwan to any other jail outside the State of Bihar, his right to fair trial would be smothered and there will be an inscription of an obituary of fair trial and refutation of the said preponement, that the accused neither has monopoly over the process nor does he has any exclusively absolute right, requires a balanced resolution. The opposite arguments are both predicated on the precept of fair trial and the said scale would decide this controversy. The interest of the victim is relevant and has to be taken into consideration. The contention that if the accused is not shifted out of Siwan Jail, the pending trials would result in complete farce, for no witness would be in a position to depose against him and they, in total haplessness, shall be bound to succumb to the feeling of accentuated fear that is created by his unseen tentacles, is not an artifice and cannot be ignored. In such a situation, this Court should balance the rights between the accused and the victims and thereafter weigh on the scale of fair trial whether shifting is necessary or not. In such a situation, this Court should balance the rights between the accused and the victims and thereafter weigh on the scale of fair trial whether shifting is necessary or not. It would be travesty if we ignore the assertion that if the respondent No. 3 is not shifted from Siwan Jail and the trial is held at Siwan, justice, which is necessitous WP(Crl.) 85/2018 to be done in accordance with law, will suffer an unprecedented set back and the petitioners would remain in a constant state of fear that shall melt their bones. This would imply balancing of rights." Needless to say, a fair trial is a sacrosanct principle under Article 21 of the Constitution of India and a 'fair trial' means fair to the accused persons, as well as to the victims of the crime. In the instant case, direct victims are the family members of the deceased, although ultimately collective is the victim of such crime. The fair trial commands that there has to be free atmosphere where the victims, the accused and the witnesses feel safe. They must not suffer from any kind of phobia while attending the court. Fear and fair trial are contradictory in terms and they cannot be allowed to co-exist. Concept of 'fair trial', needs no special emphasis and it takes within its sweep the conception of a speedy trial and the speedy trial meets its purpose when the trials are held without grant of adjournment as provided under the provisions contained in Section 309 Cr.P.C. In Vinod Kumar vs. State of Punjab, (2015) 3 SCC 220 , it has been held thus:- "There is no cavil over the proposition that there has to be a fair and proper trial but the duty of the court while conducting the trial is to be guided by the mandate of the law, the conceptual fairness and above all bearing in mind its sacrosanct duty to arrive at the truth on the basis of the material brought on record. If an accused for his benefit takes the trial on the path of total mockery, it cannot be countenanced. The court has a sacred duty to see that the trial is conducted as per law. If adjournments are granted in this manner it would tantamount to violation of the rule of law and eventually turn such trials to a farce. If an accused for his benefit takes the trial on the path of total mockery, it cannot be countenanced. The court has a sacred duty to see that the trial is conducted as per law. If adjournments are granted in this manner it would tantamount to violation of the rule of law and eventually turn such trials to a farce. It is legally impermissible and jurisprudentially abominable. The trial courts are expected in law to follow the command of the procedure relating to trial and not yield to the request of the counsel to grant adjournment for non-acceptable reasons. In fact, it is not at all appreciable to call a witness for cross-examination after such a long span of time. It is imperative if the examination-in-chief is over, the cross- examination should be completed on the same day. If the examination of a witness continues till late hours the trial can be adjourned to the next day for cross-examination. It is inconceivable in law that the cross-examination should be deferred for such a long time. It is anathema to the concept of proper and fair trial. The duty of the court is to see that not only the interest of the accused as per law is protected but also the societal and collective interest is safeguarded. It is distressing to note that despite series of judgments of this Court, the habit of granting adjournment, really an ailment, continues. How long shall we say, "Awake! Arise!". There is a constant discomfort. Therefore, we think it appropriate that the copies of the judgment be sent to the learned Chief Justices of all the High Courts for circulating the same among the learned trial Judges with a command to follow the principles relating to trial in a requisite manner and not to defer the cross-examination of a witness at their pleasure or at the leisure of the defence counsel, for it eventually makes the trial an apology for trial and compels the whole society to suffer chicanery. Let it be remembered that law cannot allowed to be lonely; a destitute." 11. In view of what has been discussed above and for fair trial to the victim/complainant as well as accused, the criminal challan in FIR No. 16/2018 for the commission of offence under Sections 306/34 RPC, titled State v/s Milap Chand and others, pending before the Pr. Let it be remembered that law cannot allowed to be lonely; a destitute." 11. In view of what has been discussed above and for fair trial to the victim/complainant as well as accused, the criminal challan in FIR No. 16/2018 for the commission of offence under Sections 306/34 RPC, titled State v/s Milap Chand and others, pending before the Pr. Sessions Judge Ramban is withdrawn and transferred to the court of Pr. Sessions Judge Jammu, who can conduct trial himself or he may transfer it to any other court of competent jurisdiction. Copy of this order be sent to both the courts below for compliance.