Andhra HC (Pre-Telangana)
M.S. Prakasa Rao vs State Of Andhra Pradesh on 14 April, 1986
ORDER
1. This is a petition to transfer Sessions Case No. 6/86 on the file of the District and Sessions Judge, Vizianagaram to the file of any other Sessions Judge in any other district.
2. The averments in the affidavit filed in support of the petition may be stated : The petitioner is the accused in S.C. No. 6/86 and the father of the petitioner filed an affidavit in support of the petition. The petitioner in his official position as Circle Inspector of Police was entrusted with the detailed enquiry into the missing girl who is aged 6 years by name Gayatri, daughter of N. Gangadharrao. In the course of this enquiry a compounder of Dr. Gupta gave complaint on 8-6-85 that some unidentified persons took away Dr. Gupta by force in an Ambassador car. The case was registered on the basis of the said complaint. After the complaint was filed there was tension in the town and meeting was organised by the members of the local Vysya community and the case was entrusted to C.B.; C.I.D. There were rumours that Dr. Gupta was killed and the police had hand in it. The next development in (the case) is that the police claimed to have discovered some bones which were claimed to be those of the doctor. On the same day i.e. on 16-6-85 the maternal uncle of the missing (Sic) and some police constables were arrested and on the next day the petitioner was arrested. There was a lot of commotion when the accused were produced on 17th before the Addl. First Class Magistrate, Vizianagaram. On 18th a procession was organised by the local Congress party men in which the president of the District Congress Committee and M.L.A. participated. The slogans were shouted against the police and shopkeepers were forced to close down shutters. A demand for judicial enquiry was made and for the resignation of the Home Minister. When the petitioner was produced before the court on 18th articles were published in Andhra Bhoomi and Andhra Patrika, Telugu newspapers about the case with provocative headlines. When the petitioner reached the court premises there was a big gathering and there was law and order problem and slogans were shouted against the police. In view of the grave commotion the Home Minister was obliged to visit the place on 19th June and he assured the public that the enquiry would be pursued vigorously and impartially and rejected the request for judicial enquiry. The matter was raised in the Assembly also and there was heated discussion. In addition to the commotion in the public as well as in the Assembly and also the hostility generated against the police the members of the local bar also were not inclined to appear for the petitioner and represent him before the court. As most of the advocates expressed their inability to appear in view of the unpleasant experience that they may experience and they did not want to get into trouble the petitioner was constrained to engage a counsel from another district. The charge sheet was filed on 13-9-1985 and the statement of the approver was recorded on 31-1-1986 and when the petitioner's advocate was attending the court he was jeered and threatened and some of them said that their lives would not be safe. Sometime later both the advocates of the petitioner and accused 2 to 9 received letters. Thereupon the advocate for the accused 2 to 9 Sri Krishnarao met the Additional Public Prosecutor and passed to him one of the letters and requested him to take necessary action to trace the author and provide protection to the petitioner's advocate. Another disturbing feature is that the Sessions Judge, who is trying the case is Vysya by caste. The deceased person Dr. Gupta also belongs to Vysya community. In the letter it was claimed that the judge is their man and that the result would be in their favour.
3. The petitioner on enquiries came to know that Dr. Gupta was known to the Judge and was consulted as professional physician. In this prevailing atmosphere the petitioner is apprehending that he will not be able to get fair and impartial trial in view of wide publicity given and intimidatory postures displayed by the concerned persons. The petitioner's advocates are always intimidated and the relations of Dr. Gupta are openly proclaiming that they would successfully influence the judge to convict the accused and this generated a genuine apprehension in the mind of the petitioner.
4. The report was called for from the District Judge. In the letter the letter dt. 31-3-1986 the learned District Judge stated that Dr. Gupta was not known to him and he never visited him or his clinic and the apprehensions expressed by the petitioner are false. It is further stated that Sri K. V. Krishna Rao, Advocate of Vizianagaram was appearing on behalf of A-2 and A-9 and Sri A. M. M. Satyanarayana another advocate of Vizianagaram was appointed by the District Legal Aid Committee to defend A-10 and Sri P. S. Prakasarao, an advocate of Parvathipuram in Vizianagaram district is appearing on behalf of A-11 in the above case. It is also stated that he has no objection for the transfer of the above sessions case from the file of his court to any other sessions division. In support of the allegations of tense atmosphere in the court the petitioner filed affidavits by Sri G. Rangarao and Sri K. V. Krishnarao, advocates.
5. The learned counsel for the petitioner Sri T. Ananta Babu contended that the prevailing atmosphere in Vizianagaram and in the court is not conducive to proper defence and dispassionate trial and wide publicity in the press focussing upon the public persons involved in the crime mainly contributed to the emotional feelings and tension. The learned counsel invited to the decisions wherein transfers of cases are necessitated by impelling circumstances. In Roshan Lal v. Emperor, AIR 1930 Lah 954 : (32 Cri LJ 339) disputes arose between Hindus and Mohammadan residents and breach of peace was apprehended and proceedings under S. 107, Cri.P.C. were initiated against certain members of the each community. After the proceedings were started the number of lawyers and other citizens formed into a defence committee to arrange for the defence of the Hindu accused. The proceedings under S. 107 were taken against the members of the defence committee including the lawyers. A fresh case under S. 307 was instituted against these lawyers, on the ground they abetted the commission. These lawyers engaged other local lawyers. After sometimes the house of the accused were searched. In the context of considering the application for transfer of cases from Gurggan, Takchand, J. held as follows at page 957 :
"I think there can be no room for doubt that the acts enumerated above are sufficient to raised a reasonable apprehension in the minds of the petitioners that they cannot have a fair and impartial trial at Gurgoan. Whatever the explanation might be, the broad fact remains that most of the persons who had taken upon themselves the duty of defending the accused persons in these cases had been either themselves prosecuted or otherwise disgraced. All this might be coincidence, but the sequence of events is calculated to create an impression in the mind of an ordinary citizen that it is not safe to assist these accused persons in their defence."
It is further held as follows :
"What has been stated above is sufficient to show that these cases have assumed an importance of their own, and that they should be tried in a clam and quiet atmosphere where all proper and legitimate facilities can be provided, both to the prosecution and the defence. Certain incidents have unfortunately taken place at Gurgoan, which rightly or wrongly lend colour to the ideas that such an atmosphere does not exist at Gurgoan."
In Amrit Lal v. Emperor, AIR 1931 Lah 540 : (32 Cri LJ 1188) the application for transfer of cases was filed on the ground that the police officials in the district are inimical towards the petitioner and the intimate terms with the local magistrate and discussed the case with them. In the context it is held as follows :
"I want to make it clear that this order would not imply any reflection on the trial Magistrate or any other Magistrate in the district of Dora Ghazi Khan. The decision is simply this that the petitioner has an apprehension that the local atmosphere is to some extent poisoned against him and it seems that his apprehension is not quite unfounded."
In Usman Haroon v. Emperor AIR 1947 Bom 409 : (48 Cri LJ 721) the Division Bench of the Bombay High Court held as follows :
"It is a vital necessity, if law and order are to be maintained, that the criminal courts, whose duty is to administer the penal laws, should be above criticism or challenge. Justice must not only be done, but must manifestly appear to be done. That we regret to say has not taken place in these cases arising from the recent disturbances, not we emphasise by reason of any communal discrimination, but for the reasons we have already stated."
In Mohd. Abdul Raoof v. State of Hyderabad, AIR 1951 Hyd 50 : (Cri LJ 273) the Full Bench of the Hyderabad High Court enunciated the principles regarding transfer of cases and held as follows :
"Where the accused has a reasonable apprehension that a fair and impartial trial or enquiry cannot be had, or where the ends of justice make it expedient, a transfer should be ordered. It is of a paramount importance that parties arranged before the courts should have confidence in the impartiality of the courts. It is the duty of the High Court at all events to clear away every thing which might reasonably endanger suspicion and distrust in the court and so to promote and maintain in the public a feeling of confidence in the administration of justice, which is so essential for social order and security. It is of fundamental importance that justice should not only be done but should manifestly and undoubtedly be seen to be done. It is not any and every apprehension in the mind of the accused that can be a ground for transfer but it should be a reasonable apprehension i.e. an apprehension which the High Court considers it reasonable for the accused as a reasonable person to entertain in the circumstances of the case."
In Narsimlu In Re (1971) 1 Andh WR 258 : (1972 Cri LJ 434) the application was filed for transfer of the case on the file of the Munsif Magistrate to any other Magistrate court in any other district. The charge sheet was filed under S. 420 on the ground that Rs. 9,000/- was paid by the complainant for getting acquittal. The judgment was delivered on 21st July 1970. In the judgment, out of 18 accused 9 were acquitted and 9 were convicted. The charge sheet stated that out of the amount of Rs. 9,000/- the accused paid back Rs. 5000/- and retained Rs. 4000/- and the accused dishonestly induced P.Ws. 1 and 2 to part with the money. The amount of Rs. 9000/- was obtained by the accused by fraudulent representation. The petitioner in the affidavit in support of the transfer petition stated several advocates declined to take up and defend his case as the affair with the judge was involved.
In the context of considering this aspect Lakshmaiah, J. held as follows :
"The petitioner categorically states that he could not secure the services of any advocate at Karimnagar to defend him and that he entertains a reasonable apprehension as regards the fair treatment of his case from the hands of learned Munsif Magistrate. I am not convinced with the later ground but so far as the former ground is concerned this is a fit case where I find that having regard to the object of criminal jurisprudence unless the accused is satisfied that he is defended properly the proceeding should not be allowed to proceed and in this case the accused swears to an affidavit to the effect that he found it exceedingly difficult to get an advocate to defend his case and that he approached several advocates but nobody was taking up his case in order to defend him. In view of that the very object and purpose of criminal jurisprudence will be defeated or frustrated if the accused is compelled to proceed in the absence of proper defence."
In the Matter of Three Vakils of Jhansi, AIR 1928 ALL 396 : (29 Cri LJ 750) the Full Bench of the Allahabad High Court stated that the principles regarding transfer and held as follows :
"It is the duty of the Courts, not only to be impartial, but also to inspire confidence in the administration of justice. It is therefore, not necessary, when supporting an application for transfer, to establish that there is any actual bias in the mind of the Magistrate concerned. Incidents which are calculated to raise a reasonable apprehension in the mind of an ordinary accused person that he will not get a fair trial may justify a transfer although no actual bias in the mind of the trying Magistrate can be proved. It is the cumulative effect likely to be produced on the mind of an accused person that has to be seen. The question whether sufficient grounds are made out for a transfer is often a matter of opinion and depends on interferences to be seen. The question whether sufficient grounds are made out for a transfer is often a matter of opinion and depends on interference to be drawn from facts have happened."
6. The factual picture culminating in the present petition may be recapitulated. The disappearance of Dr. Gupta, the reputed Doctor in the wake of kidnapping a minor girl in his family generated emotional reactions among the public. This is fuelled by charge sheeting the Circle Inspector of Police as the 1st accused and police constables as the other accused. Before the charge sheet is filed several statements appeared in the newspapers for judicial enquiry and it is also published in the newspapers that Home Minister was coming personally to enquire into the incidents which brought disgrace to the police department. It was stated by them that thousand of people gathering at the court premises on the date and the atmosphere was hostile and antogonistic to the accused. It was further stated that the advocates appearing for the accused were working under great stress and strain due to hostile atmosphere prevailing in the court premises. While he was going to the court on 31-1-1986 one person claimed to be a relation of the deceased accosted him outside the court premises and demanded him to withdraw from the case, threatening that dire consequences would follow if he did not heed him and that he would see his end and further he received an unsigned threatening letter on 8-2-86 from Vizianagaram and in the said letter it is stated that the Sessions Judge is their man and the result would be in their favour and he was also called upon to withdraw from the case failing which he would not return alive. The unsigned letter received by him is also filed. The father of the petitioner filed an affidavit stating that when he went to Vizianagaram at the time of committal persons who professed to support the deceased surrounded him and threatened him while going into the court and also while coming into the court. The defence counsel and other advocates also received threatening letters. The mother of one of the accused filed affidavit stating that she engaged Sri K. V. Krishnarao, Advocate, Vizianagaram and she stated that she was threatened by the persons that she would meet dire consequences and her advocate also received an unsigned letter threatening him and he was expressing great anxiety and reluctance to continue in the case. In the letter it is stated that it is safe for him to give up his engagement on behalf of the constables and if he does not do so dire consequences would follow : In the Telugu Daily Andhra Prabha dated 19-6-1985 the procession and meeting organised by the residents was displayed conspicuously and the demand was made for judicial enquiry and it is also published that the Home Minister is coming to personally enquire into the murder case which brought disgrace to the police department. It was published in Eenadu Telugu daily dt. 15-8-1985 that there was a heated discussion in the Assembly and the details of the deliberations in the Assembly have also been stated. In Hindu dt. 14th August 1985, the discussion in the Assembly was referred to and in another English daily the discussion in the Assembly was referred to with heading "Heated exchanges in the Assembly." It is stated in Eenadu on 20-6-1985 with display of photographs of the Home Minister condoling the wife of Mr. Gupta and also the detailed statement that judicial enquiry is not necessary and his statement that the persons who are responsible for the death will not be spared. In the Indian Express dt. 25-8-1985 it is published that the Home Minister stated that the government has no intention to water down Gupta's murder case and no leniency will be shown to any one. It is stated as follows :
"Addressing News Conference herein on Saturday the Minister said that it was "unfortunate that a man in the uniform should have committed such a crime". Likewise in Telugu daily Andhra Jyoti it is stated that the Chief Minister stated in the Assembly that one Circle Inspector and 9 police constables were arrested in connection with the murder of Dr. Gupta and the concerned persons were suspended and the case was entrusted to C.B., C.I.D., for effective enquiry into the case.
7. The police personnel are under trial in the murder case and on behalf of the 1st accused an advocate from Bhimavaram was engaged as it is stated that the advocates from Vizianagaram were not inclined to accept the engagement. Further it is also stated that one K. V. Krishnarao, advocate of Vizianagaram who was engaged on behalf of the other accused was also under great stress and strain. The affidavits have been filed by both the advocates stating that they have been receiving threats and gesticulations in the court apart from unsigned letters threatening their lives. As the deceased person involved appears to be a reputed Doctor and the murder followed the kidnapping of a minor girl there is bound to be a great commotion in town and this by itself cannot be reason for transfer. The wide publicity in the newspapers is a necessary sequel in certain serious situation of ghastly murder of incidents and sensational events and apart from the final outcome in the case and identification of the guilty persons the public sympathy is naturally in favour of the bereaved persons. The allegations against the police personnel participating in perpetuation of crime, give rise to a tremendous uproar among the people and it cannot be gainsaid that it receives wide publicity in the newspapers expected to reflect the public opinion.
8. The disappearance of reputed Doctor in the wake of kidnapping incident and the event of police personnel including Circle Inspector of police lined up as accused are bound to generate tense atmosphere. As stated in the affidavits it may be scarcely an exaggeration to state that the atmosphere in Vizianagaram town in surcharged with emotional upsurge, wide curiosity and intemperate gestures and in this climate the wide publicity by the newspapers containing the statements of persons at the helm of affairs containing slightly a slant and scathing criticism of police personnel who are expected to be caretakers of law and order fuelled the emotional upsurge. The wide publicity displaying photos of consoling the bereaved family members by important persons is bound to evoke sympathy beyond bounds.
9. It is appropriate to conjure up two cardinal maxims in criminal jurisprudence that no person should be condemned and punished unless the person is heard and guilt is proved beyond reasonable doubt. Another relevant maxim is that justice should not only be done but appear to have been done. The suspicion even if it is strong and bordering on cogent evidence does not displace the necessity of proof beyond shadow of doubt. The justice is rooted in confidence and any apprehension in the minds of participants dims the vision of justice and limps the administration of justice. The allegations of police personnel involving in the murder of a reputed medical practitioner in the town necessarily provokes a righteous indignation and emotional outbrusts. The tense feelings laced by suspicions and emotional upsurge should not be permitted to cloud the impartial atmosphere and equanimity in the court and should not give rise to apprehensions in the minds of the accused that they are likely to be denied full-fledged enquiry and trial. The tense atmosphere in the town and court, threatening letter to the advocates, gesticulations and shouting at the advocates in the court premises and the impelling necessity of the circle Inspector of police engaging an advocate from Bhimavaram, a distant place from Vizianagaram, and the fear of parents of circle Inspector of police to attend the court abundantly disclose that the accused are labouring under apprehension regarding the trial with trappings of equanimity and cool atmosphere. The apprehension or even the possibility of apprehension is sufficient to tarnish the image and vision of justice.
10. The learned counsel for the appellant states that wide publicity in the press, by displaying photos, processions and headlines of the statements of the Home Minister, Chief Minister and deliberations in the assembly gave undue importance and generated tense atmosphere in the town and court premises. I am unable to subscribe to the view propounded by the learned counsel. The role of the press in mirroring and shaping public opinion, structuring political consciousness, nurturing legal awareness and disseminating and stepping up social and cultural values is highly commendable. It may be during investigation and trial in judicial matters the wide publicity at times may result in embarrassment to the judges, Advocates and witnesses in certain sensitive matters but this cannot be considered as a base to discourage or contain publicity. However, it is desirable that does of publicity in certain sensitive issues at the stage of investigation and trial should be mild and tempered and minimised.
11. It is also contended that Dr. Gupta and the learned Sessions Judge belonged to the same Vysya community and this also contributed to apprehension. This is a highly extravagant allegation and caste factor is totally alien to administration of justice and allegations founded upon caste should not be permitted to pollute the judicial atmosphere.
12. In the result, S.C. No. 6/86 on the file of the Sessions Court, Vizianagaram is transferred to the Sessions Court, Srikakulam, Transfer Cr.M.P. allowed.
Petition allowed.