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2025 DIGILAW 484 (MP)

Shankar Prasad Gupta v. Lovkesh Singh

2025-08-13

DEEPAK KHOT

body2025
ORDER : DEEPAK KHOT, J. With the consent of learned counsel for the parties, matter is heard finally. The present Civil Revision has been filed by the petitioner challenging the order dated 28.06.2025 (Annexure P/1) passed by learned Principal District Judge, Sidhi in MJC No.64/2025; whereby, the application submitted by the petitioner under Section 24 of CPC has been rejected on the ground that the litigant has no right to have Court of their choice and under Section 20 of the Madhya Pradesh Municipalities Act, the jurisdiction has been vested with the concerned adjudicating Court. 2. The allegations which are levelled by the petitioner have been prima facie found to be false. The lower Court has observed that on the earlier occasion, the petitioner had submitted an application for examination of the ballot papers through expert which was rejected and the same was challenged before this Court in Misc.Petition No.93/2025 which was dismissed vide order dated 12.03.2025. The said order was subject to review by filing a Review Petition No.640/2025, however, that review petition has also been dismissed vide order dated 18.06.2025 and accordingly, it has been opined that the application has been filed to delay the proceedings of the Court below and on that basis it has been concluded that on such ground application filed by the petitioner is not tenable in the eye of law and, thus, the application for transfer has been rejected. 3. It has been contended by learned senior counsel for the petitioner that the applicant has a serious apprehension in the mind that he would not get justice from the court because in the manner the Court below has proceeded with the examination of the witnesses, as in absence of counsel of the contesting non-applicant, the ballot papers were opened. It has further been submitted that those ballot papers were also sent in the certified copying section without due safety. It has further been contended that the allegations are that some interpolation has been done on the ballot papers by marking cross (x) over two ballot papers which are shown and filed alongwith this petition on page No.143 and 149. It has further been submitted that those ballot papers were also sent in the certified copying section without due safety. It has further been contended that the allegations are that some interpolation has been done on the ballot papers by marking cross (x) over two ballot papers which are shown and filed alongwith this petition on page No.143 and 149. It has further been contended that the Election Petition filed by respondent is not based on the ground that the ballot papers contain cross marks in the slot of both returned candidate and respondent respectively, however, the petition has been filed on some other grounds which clearly shows that the ballot papers have been tampered during the course of the trial. It has further been submitted that those ballot papers were opened on 12.07.2024 by the Court in absence of the counsel of the contesting respondent/returned candidate (petitioner herein). 4. The petitioner had made complaint about the manner the Court has proceeded in the matter. The Court below vide order dated 15.10.2024 has observed that when there is a suspicion in the mind of the petitioner in regard to fair trial and adjudication of the matter, then a letter be sent to the Principal District Judge for transfer of the matter. On the basis of peculiar facts and circumstances of the case, the petitioner has shown a strong apprehension that the petitioner would not get justice from the Court and the matter be transferred to any other Court having jurisdiction to decide the said Election Petition. 5. Per contra, refuting the submissions made by learned senior counsel for the petitioner, learned senior counsel for the respondent has submitted that the apprehension of the petition is baseless as petitioner had earlier filed an application in respect of examination of ballot papers from the expert which was dismissed by the trial Court and same was affirmed by this Court in Misc. Petition and thereafter in Review Petition. Only thereafter, the petitioner has shown his apprehension regarding not getting justice from the same Court. 6. Petition and thereafter in Review Petition. Only thereafter, the petitioner has shown his apprehension regarding not getting justice from the same Court. 6. Learned senior counsel has also submitted that the ballot papers were not opened by the Court on its own motion, in fact the order sheet dated 29.06.2024 suggest that the said ballot papers and the CD containing the videography of the election have been called for on the request and application by the counsel for the petitioner and the order sheet dated 26.06.2024 suggest that on the application of the parties, the record was sent to the certified copying section for giving certified copy of statement. On 12.07.2024, ballot papers and video CD were filed in sealed envelope. 7. It has further been submitted that the said ballot papers and the CD were opened during cross-examination on 12.08.2024 and on that day, CD was played during cross-examination, seal of the envelope containing ballot papers was opened and then closed. On 31.08.2024, seal was opened in presence of counsel for the petitioner and respondent to issue certified copy. It has further been submitted that in the order sheets dated 29.06.2024, 15.10.2024 and 17.12.2024, when the ballot papers were opened and sent for certified copy, no prayer in regard to tempering of those papers has been made. On that basis, it is contended that the application submitted for transfer of the Election Petition is an afterthought, baseless and it is only an attempt to question the fairness and impartiality of the Court. 8. Learned counsel for the petitioner in support of his submissions has relied on the judgments of the Hon’ble Apex Court in the cases of Kanaklata vs State of NCT of Delhi (2015) 6 SCC 617 and Satish Jaggi vs State Of Chhattisgarh (2007) 3 SCC 62 to state that a judicial officer in whatever capacity he may be functioning has to act with the belief that he is not to be guided by any factor other than to ensure that he shall render a free and fair decision which according to his conscience is the right one on the basis of materials placed before him. There can be no exceptions to this imperative, but at the same time there should not be any scope given to any person to go away with the feeling that the Judge was biased, however unfounded the impression may be. 9. There can be no exceptions to this imperative, but at the same time there should not be any scope given to any person to go away with the feeling that the Judge was biased, however unfounded the impression may be. 9. To bolster his submissions, learned senior counsel for the respondent has relied on the judgment of the Hon’ble Apex Court in the case of State of Maharashtra vs. Ramdas Shrinivas Nayak (1982) 2 SCC 463 to state that matters of judicial record are unquestionable. They are not open to doubt. Judges cannot be dragged into the arena. "Judgments cannot be treated as mere counters in the game of litigation". The higher Courts are bound to accept the statement of the Judges recorded in their judgment, as to what transpired in the court. Statement of the judges cannot be allowed to be contradicted by statements at the Bar or by affidavit and other evidence. Further reliance has been placed on the order of Coordinate Bench of this Court in the case of Mahesh Prasad Sen vs. Dhannulal Namdeo (Misc.Petition No.6953/2023 decided on 23 rd November, 2023) to state that mere suspicion by the party that he will not get justice would not justify transfer. There must be a reasonable apprehension to that effect. A judicial order made by a Judge legitimately cannot be made foundation for a transfer of case. The Court has to be very careful while passing the orders for transfer of case on the basis of allegation. The majesty of the Courts is paramount. It cannot be brought down on a scandalized attempt by any litigant. On the aforesaid, prayed for that the order passed by the learned Court below is absolutely in consonance of the law and principles laid down by the Hon’ble Apex Court and this Court in plethora of decisions. 10. Heard learned counsel for the parties and perused the record. 11. Before adverting to the facts of the present case, it is apt to ponder on the principles of transfer of cases by the Higher courts under their administrative and judicial jurisdiction. Under the Code of Civil Procedure, 1908, Section 24 empowers a District Judge to transfer a case (any suit, appeals or other proceedings) pending before it for trial or disposal to any court subordinate to it and competent to try or dispose of the same. Under the Code of Civil Procedure, 1908, Section 24 empowers a District Judge to transfer a case (any suit, appeals or other proceedings) pending before it for trial or disposal to any court subordinate to it and competent to try or dispose of the same. It also give general power to the District Court and the High Court to withdraw any suit, appeal or other pending proceeding in any Court subordinate to it and transfer the same for trial or disposal to any Court subordinate to it and competent to try or dispose of the same. For the purpose of this Section, Additional and Assistant Judges shall be deemed to be subordinate to District Judge. Proceeding includes a proceeding for the execution of a decree or an order. Similar provisions are legislated for the adjudication on the criminal side under Section 407 of CrPC, now (Section 447 of BNSS, 2023). So the powers of transfer is vested with the District Court and the High Court in the course of general administration on the application filed by either parties or on its own motion. The reasons and grounds for transfer are expounded by the Hon’ble Apex Court and High Courts in their distinct judgments and decisions. Some of the decisions which are necessary to be referred in the present case are being considered hereinbelow. 12. The Hon’ble Apex Court in the case of Surendra Pratap Singh vs State Of U.P. & Ors (2010) 9 SCC 475 has directed transfer of a murder trial on the ground of apprehension of bias and that the deceased would not receive free and fair justice within the concerned state. In that case, the allegation was against the MLA and on the apprehension that the party would not get fair and impartial justice before the Court, matter was transferred. The Court has held that the justice must not only be done but must also seen to be done and this case is an example where the said idiomatic expression is relevant. 13. The Hon’ble Apex Court in the case of Gurucharan Das Chadha vs State Of Rajasthan AIR 1966 SC 1418 has held that to transfer a case there should be reasonable apprehension on the part of a party to the case that he would not get justice. 13. The Hon’ble Apex Court in the case of Gurucharan Das Chadha vs State Of Rajasthan AIR 1966 SC 1418 has held that to transfer a case there should be reasonable apprehension on the part of a party to the case that he would not get justice. The party is entitled to transfer of a case if he shows circumstances from which it can be inferred that he entertains an apprehension and that it is reasonable in the circumstances alleged. The Court has to see whether the apprehension is reasonable or not. To judge the reasonableness of the apprehension, the state of 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. 14. In the case of Ms. Maneka Sanjay Gandhi and anr. vs Ms.Rani Jethmalani AIR 1979 SC 468 , the Hon’ble Apex Court has held that 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 hypersensitive or relative convenience of a party or availability of legal service or like grievance. Something more substantial, more compelling, more imperiling, from the point of view of public justice and its attendant environment, its 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. The Court in the facts and circumstances of the case has to test the grounds for transfer on the 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. It is further said that even so, the process of justice should not harass the parties and from that angle the court may weigh the circumstances. 15. In the case of Abdul Nazar Madani vs State of Tamil Nadu & Anr. AIR 2000 SC 2293 , the Court has held that no universal or hard and fast rules can be prescribed for deciding transfer petition which is always to be decided on the basis of the facts of each case. 15. In the case of Abdul Nazar Madani vs State of Tamil Nadu & Anr. AIR 2000 SC 2293 , the Court has held that no universal or hard and fast rules can be prescribed for deciding transfer petition which is 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 transfer petition. The apprehension of not getting fair and impartial inquiry or trial is required to be reasonable and not imaginary based upon conjectures and surmises. 16. In the case G.X. Francis and ors. vs Banke Bihari Singh AIR 1958 SC 309 , the Hon’ble Apex Court held that where public confidence in the fairness of the trial is likely to be seriously undermined, under circumstances of the case, transfer petition could be allowed. The Court found that the local atmosphere was not conducive to a fair and impartial trial which was a good ground for transfer. 17. From the aforesaid enunciation of law, it is demystified that the party should have reasonable apprehension that the party would not get justice from the Court and said apprehension is reasonable is required to be tested from the facts and circumstances of the case. The reasons may myriad and vary from case to case. When such proposition is tested with the controversy in the present case in hand, it is evident from the record that the party has noticed that there was some interpolation in the ballot papers by putting a cross mark (x) in the slot of the candidate. The said apprehension that such interpolation has been done during the trial is based on the fact as submitted by the petitioner that such mark was not noticed by the returning officer during counting and not recorded in the videography, substantiate that this require a deep scrutiny by the Court. 18. When it is alleged that such interpolation is done during the proceedings of the election petition, more particularly, during examination and cross-examination of the witnesses, in absence of counsel of the petitioner, then the apprehension of the petitioner seems to be reasonable. 18. When it is alleged that such interpolation is done during the proceedings of the election petition, more particularly, during examination and cross-examination of the witnesses, in absence of counsel of the petitioner, then the apprehension of the petitioner seems to be reasonable. As the seminal principle of transfer is that the justice must not only be done but must also seen to be done, then this Court is of the considered opinion that once the presiding officer has himself requested for transfer of the matter on the allegation of the party, then considering the apprehension in the mind of the petitioner/party, the matter should be transferred to another Court having the equal competence. 19. When the case laws cited by the counsel for the respondent is analyzed with the background of the cases, it is found that they are distinguishable as the facts of the case are not akin to the cases wherein such principle has been laid down. With utmost humility and respect, the dictum of the Courts are based on the facts of those cases before the Court. 20. In the case of Mahesh Prasad Sen (supra) the party had shown suspicion of not getting justice from the Court on the ground that certain orders were passed by the Court prejudicial to the interest of the said petitioner and the Higher Courts had stayed the operation of those orders, but by the time that has been communicated, the order was executed. As on the basis, the petitioner has shown disfaith in the said Civil Judge. The Court dealing with the issue and considering the relevant judgments on the point, has affirmed the order of dismissal of transfer application. Similarly, in the case of Ramdas Shrinivas Nayak (supra) the Court has dealt with the position in regard to the statements of the counsel at Bar viz-a-viz the orders of the Court. It is held that such orders cannot be doubted merely on the statements of the counsels. 21. However, in the present case in hand, the facts and circumstances of the case are bit different. The petitioner has felt strong apprehension that he would not get justice from the Court where the matter is pending on the premise that during course of trial interpolation of ballot papers has been done. 21. However, in the present case in hand, the facts and circumstances of the case are bit different. The petitioner has felt strong apprehension that he would not get justice from the Court where the matter is pending on the premise that during course of trial interpolation of ballot papers has been done. Without commenting on merits, integrity and impartiality of the Court and on the basis of above analysis, this Court is of the considered opinion that the petitioner has made out the case for transfer of the Election Petition from the Court of Third Additional Judge to the First Additional District Judge, District Sidhi to any other Court, having equal competence and jurisdiction. 22. In the facts and circumstances of the case, the petition is allowed The District Judge, District Sidhi is requested to transfer the Election Petition 01/2022 from the Court of Third Additional Judge to the First Additional District Judge, District Sidhi to any other Court of having equal jurisdiction and competence. The District Judge is also requested to designate the said Court as per the scheme of Section 20 of the Madhya Pradesh Municipalities Act to adjudicate the pending Election petition. 23. All pending interlocutory applications stand disposed of. No order as to costs.