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2022 DIGILAW 796 (AP)

Panduri Manikyala Rao v. State of Andhra Pradesh

2022-08-25

B.S.BHANUMATHI

body2022
JUDGMENT B.S. Bhanumathi, J. - This Transfer Criminal Petition is filed under Section 407 of the Code of Criminal Procedure, 1973, requesting to withdraw C.C. No. 417 of 2018 on the file of the Court of III Additional Metropolitan Magistrate-cum-III Additional Junior Civil Judge, at Visakhapatnam, and transfer the same to any other Court competent to try the same. 2. Heard Sri N. Ashwiani Kumar, learned counsel for the petitioners and Sri V.V. Satish, learned counsel appearing for the 2nd respondent/complainant. 3. The facts, as stated in the affidavit filed by the 2nd petitioner, on behalf of the petitioners 2 to 4, in brief, are: On 03.11.2017, all the petitioners/accused have colluded and threatened the 2nd respondent who is their father, for partition of the property, and have allegedly not allowed the 2nd respondent to enter into his house and threatened to kill him with dire consequences. The 2nd respondent herein submitted complaint, dated 03.12.2017 before the 1st respondent and the 1st respondent lodged FIR in Crime No. 493 of 2017 against the petitioners. The 1st respondent, after completion of investigation, filed charge sheet against the petitioners for the offences punishable under Sections 341 and 509 read with Section 34 IPC. While, the 1st petitioner/accused died during the pendency of the trial and the rest of the petitioners are facing the trial. The de facto complainant is none other than the father of petitioners 1 & 2 and father-in-law of petitioners 3 & 4. Previously, petitioners 1 & 2/A1 & A2 filed a suit in O.S. No. 358 of 2017 on the file of VII Additional District Judge, Visakhapatnam, against the de facto complainant and two others seeking partition and recovery of certain amounts. FIR No. 493 of 2017 of M.V.P. Police Station, Visakhapatnam, is a counter blast case filed by the de facto complainant in C.C. No. 417 of 2018 to O.S. No. 358 of 2017. Petitioners 1 & 2/A1 and A2 filed a suit bearing O.S. No. 586 of 2018 on the file of Court of XI Additional District Judge, Visakhapatnam, seeking cancellation of sale deed bearing Document No. 426/2017, dated 05.07.2017, registered in the office of the Joint Sub Registrar, which is brought into existence by fraudulent means. Petitioners 1 & 2/A1 and A2 filed a suit bearing O.S. No. 586 of 2018 on the file of Court of XI Additional District Judge, Visakhapatnam, seeking cancellation of sale deed bearing Document No. 426/2017, dated 05.07.2017, registered in the office of the Joint Sub Registrar, which is brought into existence by fraudulent means. PW2 in C.C. No. 417 of 2018 also filed suit against A1 in O.S. No. 50 of 2019 which is pending on the file of the Court of VI Additional Senior Civil Judge, Visakhapatnam. He also filed O.S. No. 56 of 2019 on the file of the same Court. PW1 in the present case filed W.P. No. 3323 of 2017 on the file of this Court against the police. 3(b). In the aforesaid background facts, it is submitted on behalf of the petitioners that during trial in C.C. No. 417 of 2018, the learned Magistrate is not allowing the defence counsel to confront with improvements, variations, contradictions made in and from written statements, police report filed before this Court etc. from other documents. The learned Magistrate is not even allowing the defence counsel to make suggestions relating to the civil dispute. With great difficulty, the defence counsel completed cross-examination of PW1 and marking of certain documents. On 01.12.2021, the learned Magistrate did not allow the defence counsel to confront PW2 with certain statements made by him. The petitioners filed Transfer Crl. M.P. No. 1 of 2022 on the file of the Court of Metropolitan Sessions Judge, Visakhapatnam, seeking transfer of C.C. No. 417 of 2018. By order, dated 22.02.2022, the learned Sessions Judge, dismissed the said petition. According to the petitioners, unless C.C. No. 417 of 2018 is transferred to any other Court competent to try the same, petitioners would be subjected to serious prejudice and right to fair trial would be violated. Hence, the present transfer criminal petition is filed. 4. The main grievance of the petitioners is that the Presiding Officer of the concerned Court is not allowing proper cross-examination of the witnesses of the prosecution and thus, there is no fair trial allowed to the petitioners/accused. In this regard, the petitioners made a reference to the fact that the Presiding Judge has not allowed to put questions on contradictions, variations, improvements made in the written statement, police report etc., as per Section 145 of the Indian Evidence Act, 1872. In this regard, the petitioners made a reference to the fact that the Presiding Judge has not allowed to put questions on contradictions, variations, improvements made in the written statement, police report etc., as per Section 145 of the Indian Evidence Act, 1872. But, the learned Judge concerned objected such questions as the said provision is applicable only to the statements made under Section 161 CrPC but not to civil proceedings. It is also further contended that as and when the trial Court Judge is objecting, the intelligent witnesses are getting alert and evading the answers. According to the petitioners, such conduct of the learned trial Court Judge is causing prejudice to the petitioners and the Judge is behaving in a biased manner. Therefore, the petitioners sought transfer of the case from that Court to any other Court. 5. Learned counsel for the petitioners relied on the decision of the Supreme Court in Zahira Habibulla H. Sheik v. State of Gujarat (2004) 4 SCC 158 in support of his contention that a fair trial would obviously mean a trial before an impartial Judge, a fair Prosecutor and atmosphere and judicial calm and that a fair trial means a trial in which bias or prejudice for or against the accused, witness or the cause which is being tried is eliminated. Therefore, he urged to transfer the case in view of the apprehension of the petitioners that they would not get a fair trial in that sense. 6. On the other hand, on behalf of the 2nd respondent, it is submitted that mere suspicion by a party that he will not get justice would not justify transfer and there must be a reasonable apprehension to that effect and mere presumption of possible apprehension should not and ought to be the basis of transfer of any case from one Court to other. It is also contended that mere observation of the Presiding Officers of the Court while hearing a case does not mean that he has made up his mind in a particular manner so as to justify an allegation of bias against such Presiding Officer and this would not justify transfer of case from one Court to another. It is also contended that mere observation of the Presiding Officers of the Court while hearing a case does not mean that he has made up his mind in a particular manner so as to justify an allegation of bias against such Presiding Officer and this would not justify transfer of case from one Court to another. It is also submitted that a transfer may be justified only when there is foundation in the allegation against the Presiding Officer regarding the allegations on integrity or reckless approach but not on the type of grounds urged by the petitioners. It is also contended, placing reliance on the decision of the Supreme Court in Ajay Kumar Pandey, Advocate, In Re. v. (1998) 7 Supreme Court Cases 248 that the superior Courts, viz., High Court as well as the Supreme Court from being subjected to scurrilous and indecent attacks, which scandalize or have the tendency of scandalize, or lower or have the tendency to lower the authority of any Court as also all such actions which interfere or tend to interfere with the due course of any judicial proceedings or obstruct or tend to obstruct the administration of justice in any other manner. 7. This petition for transfer has been vehemently opposed stating that there is no ground for the petitioners to get the matter transferred on unfounded apprehensions. 8. There is no dispute as to the propositions or principle of law relied on by both the parties. Each case is to be examined in the light of the facts and circumstances to see whether there is a justifiable ground for transferring a case. 9. In the present case, as is already noted, the ground for the petitioners to seek transfer is that the Judge concerned is interfering in the process of cross-examination even on legal issues. Insofar as legal issues are concerned, the correct proposition of law can be placed before the Courts and get the proceedings taken up as per law. Just because there is an open discussion on legal issues, may be with a view to get clarification or due to improper understanding by either side, it cannot be said that the Presiding Judge is biased or that there is no fair trial. Similar situations may also arise in any other Court, even if the case is transferred. Just because there is an open discussion on legal issues, may be with a view to get clarification or due to improper understanding by either side, it cannot be said that the Presiding Judge is biased or that there is no fair trial. Similar situations may also arise in any other Court, even if the case is transferred. It is not justified for the petitioners to seek transfer from one Court to another Court on this type of ground. Parties may have apprehensions, but unless the apprehensions relate to the unfair approach of the Presiding Officer, possibly leading to unfair trial, it is not a ground to transfer a case from one Court to another Court. The terms 'fair' or 'unfair' are relative and not absolute and moreover, they are very wider. 10. In the present case, the likely prejudice to the petitioners is not made out from the allegations made in the petition. If at all, there is confrontation as to any legal aspects, the submissions of the parties, advocates or the witnesses and the view of the Court thereon can be recorded in the evidence so that it forms part of the record and the same can be analyzed or appreciated at a subsequent stage. Therefore, to avoid creation of unnecessary apprehension in the mind of the parties, the Courts may adopt such procedure and conduct trial without any obstruction. As such, this Court does not see any reason in the present case to transfer the case. 11. In the result, the Transfer Criminal Petition is dismissed with an observation that the Presiding Officer of the Court of III Additional Metropolitan Magistrate-cum-III Additional Junior Civil Judge, at Visakhapatnam, without being influenced by the fact that the petitioners 2 to 4 have taken steps to get the matter transferred, shall proceed with the trial as per law and do the needful, as and when there is any submission on legal aspects, such as the procedure indicated supra in this order. There shall be no order as to costs. Miscellaneous petitions pending, if any, shall stand closed.