Patna High Court
Professor Arun Kumar Singh And Anr. vs State Of Bihar And Anr. on 27 August, 1996
Equivalent citations: 1997CRILJ661
Author: M.Y. Eqbal
Bench: M.Y. Eqbal
ORDER M.Y. Eqbal, J.
1. In this writ application the petitioners have prayed for issuance of appropriate writ, order or direction setting aside the administrative order passed by respondent No. 2, the High Court of Judicature at Patna transferring the Sessions Trial No. 115 of 1996, from the Court of Vth Additional District and Sessions Judge, Muzaffarpur to the Court of Shri Shiv Shankar Sharma, VIIIth Additional District and Sessions Judge, Patna. Further relief has been sought for the effect that the trial be allowed to be conducted by the same Court of Muzaffarpur or by any other Court at Muzaffarpur. At the very outset the petitioners disclosed in the writ petition that the petitioners invoked the jurisdiction of the Hon'ble Supreme Court under Article 32 of the Constitution of India, challenging the impugned administrative order of the High Court on the ground that it infringed the fundamental rights enshrined under Articles 14 and 21 of the Constitution of India. However, the aforesaid application was withdrawn from the Supreme Court on 25-7-. 1996, for agitating the matter in this Court under Articles 226 and 227 of the Constitution of India, copy of the Supreme Court order has been filed and marked as Annexure 1 to this writ application.
2. The petitioners' case, in short, was that on 5-12-1994, a First Information Report was lodged by the informant Mr. Mohan Razak, Deputy Superintendent of Police, East Muzaffarpur, narrating the details of the circumstances in which Mr. G. Krishnaiya, the then Collector of Gopalganj was killed. In the aforesaid First Information Report as many as 22 persons were arrayed in the column of accused persons including the petitioners. The police after investigation submitted charge-sheet against 41 accused persons and cited 64 persons as witnesses of the occurrence. Pursuant to that most of the accused persons, arrested in the instant case, were granted bail by this Court including the petitioners. It was further stated in the writ application that after the grant of bail to these petitioners, the State of Bihar went to Supreme Court praying for cancellation of their Bail in the special leave petition. The Hon'ble Supreme Court vide its judgment and order dated 15-1-1996, cancelled the bail of one of the accused, Sri Anand Mohan but did not interfere with the order of the High Court with respect to these two petitioners. The Hon'ble Supreme Court by the said order directed that the trial should commence within two months of the receipt of the order and further the trial Court was directed to record evidence of the witnesses on day to day basis so that the trial may be concluded expeditiously without interruption after its commencement. It was stated that, thereafter, all the 41 accused persons who have been charge sheeted except one Bhutkun Shukla, who was alleged to be main assailant and whose trial later was separated, presented themselves before the Court and the trial commenced. It is needless to mention here that Shri Anand Mohan whose bail was cancelled by the Hon'ble Supreme Court, again moved the Supreme Court for grant of bail. The Hon'ble Supreme Court gave a time frame to the learned trial Court to conclude the trial and if at all, the trial was not concluded by 22nd June, it was directed that he be released on bail. According to petitioners since by that time, only two of the prosecution witnesses were examined out of 64 witnesses of the chargesheet. It is to be noted that charges were framed on 6-5-1996 and the trial on day to day basis commenced from 20th May, 1996. The petitioners alleged in the writ petition that there was no attempt on the part of any one of the accused persons to prevent the speedy disposal of trial, nevertheless on account of enormity of the materials in the case diary and other circumstances, only three prosecution witnesses could be examined till 6-7-1996, when the High Court in its administrative side passed an order transferring the aforesaid trial from Muzaffarpur to Patna and earmarked one Shri Shiv Shankar Sharma as the designated Court. The learned designated Court at Patna by its order dated 6-7-1996, fixed 15-7-19%, for appearance of the accused persons in the Court. In the same order a reference has been made of the confidential memorandum No. 10625 - 25 dated 6-7-1996, by which this High Court was pleased to transfer the Sessions Trial No. 115 of 1996, to another Court, copy of the order sheet dated 6-7-1996, passed in Sessions Trial No. 115 of 1996, was filed and marked as Annexure 3 to this writ application. The petitioners' grievance beside others as stated in the writ application was that the petitioners who are facing trial in the aforesaid Sessions Trial, had engaged friendly lawyers who were ready to defend them gratuitously.
The petitioners' claim to have been put to great inconvenience as those lawyers at Muzaffarpur who are by now well acquainted with the facts and circumstances of this case, have refused to go to and defend them. It was also not possible for other accused persons who do not hail from well to do families to set a parallel home at Patna and defend themselves properly at the Court.
3. A counter affidavit has been filed on behalf of respondent No. 2, High Court of Judicature at Patna (hereinafter referred to as "the High Court"). In the counter affidavit it was stated that a request of the State Government in the Department of Personnel and Administrative Reforms to constitute Special Court for speedy trial of the case relating to the murder of G. Krishnaaiya, District Magistrate, Muzaffarpur, was received by the High Court vide State Government's letter No. Ka-11700 dated 8-8-12-1994, whereof copy is Annexure A to this counter affidavit. On 16-12-1994, the High Court on the administrative side, earmarked the Court of Shri Mishri Lal Choudhary, Additional District and Sessions Judge, Muzaffarpur, to try the case but before he could proceed with the trial, he was transferred. In view of the order passed by the Supreme Court for day to day trial of this case, the Standing Committee of the High Court on 31-1-1996, earmarked the Court of Shri B. K. Poddar. Additional District and Sessions Judge, Muzaffarpur to try the aforesaid Sessions Trial. The charges were framed on 6-5-1996, and the trial proceeded, in the said Sessions case. Shri B. K. Poddar, Additional Sessions Judge on 13-6-1996, represented before this Court for transfer of the aforesaid Sessions Trial on the ground incorporated to the counter affidavit. Further case of the respondent-High Court was that keeping in view the directives of the Supreme Court and taking into consideration the representation and the order-sheets appended with the representation of Sri Poddar, the Standing Committee of the High Court came to conclusion that the local atmosphere at Muzaffarpur was surcharged and fair trial cannot be had in the aforesaid case and as such it was felt expedient that the case should be transferred immediately for the ends of justice and an order was accordingly issued for transfer of the Sessions Trial from Muzaffarpur to Patna for its trial and disposal vide order of the Standing Committee dated 28th/29th June, 1996. The case was also earmarked to the Court of Shri Shiv Shankar Sharma, Additional Sessions Judge, Patna for the trial and disposal.
4. Mr. Kanhaiya Prasad Singh learned Senior counsel appearing on behalf of the petitioners firstly submitted that the High Court has no power in its administrative side to transfer the Sessions Trial from the Court of one division to the Court of other division without taking recourse to Section 407 of the Code of Criminal Procedure. Learned counsel further submitted that Section 407 of the Code of Criminal Procedure gives power to the High Court to transfer a case only from judicial side provided one or more of the conditions are fulfilled, namely, a fair and impartial enquiry or trial cannot be had, some question of law of unusual difficulty is like to arise, an order under this section is required by any provision of this Code. Learned counsel secondly submitted that the action taken by the High Court in its administrative side has heavily impugned upon the ability of the accused persons to defend themselves at the trial. Learned counsel further submitted that the impugned administrative order rendered all the accused persons to all kinds of inconvenience and hardships and therefore, they should at least have been noticed and in all fairness, they should have been heard as this order purportedly affects them. Learned counsel also assailed the order as violative principles of natural justice.
5. Mr. Shashi Anuragh Narayan, learned Additional Advocate General No. 2 appearing on behalf of respondent-High Court firstly submitted that the High Court having the control of administrative and executive work was competent to transfer a case from the Court of one division to the Court of another division for fair and impartial trial. Learned counsel referring counter affidavit submitted that when the case was pending before the Court at Muzaffarpur unpleasant situation were created by the supporters of the accused persons during the examination of prosecution witness. Not only that the accused persons filed petition accusing the Presiding Officer of the Court and showing lack of faith in him. The accused persons along with their lawyers created nuisance and threatened and raising slogan that they will settle this case outside the Court. Learned counsel further referred the representation filed by Sri Poddar, the Presiding Officer of the Court, that he and his family members were receiving persistent threat on telephone calls threatening their lives. The Standing Committee of the High Court taken into consideration that the local atmosphere at Muzaffarpur was surcharge and fair trial could not be possible, it was felt expedient that the case should be transferred immediately from the Court of Muzaffarpur to Patna. Learned counsel then submitted that inconvenience to the accused persons and lawyers cannot be a ground to challenge the impugned order of transfer. In support of that learned counsel relied upon a decision in the case of Punyananda Avadhut v. State reported AIR 1970 Cal 241 : 1970 Cri LJ 806. Learned counsel, repelling the question of violation of principles of natural justice, submitted that since by the impugned order of transfer no right of accused persons having been affected, compliance of principles of natural justice does not arise.
6. Having heard learned counsel appearing for both the parties two questions have emerged for consideration of this Court, namely, (1) whether the High Court under its administrative power can transfer the Sessions Trial from the Court of one division to the Court of another division?
(2) Whether the impugned order can be set aside on the ground of inconvenience to the accused persons?
Re question No. 1 :- Before appreciating the rival contention of the learned counsel it is appropriate to notice the relevant provision of Section 407 of the Code of Criminal Procedure which reads as under:-
Power of High Court to transfer cases and appeals :(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 an order under this section is required by any provision of this Code, or will tend to the general convenience of the parties or witnesses, or is expedient for the ends of justice.
it may order -
(i) that any offence be inquired into or tried by any Court not qualified under Sections 177 to 185 (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 be committed for trial to a Court of Session; or
(iv) that any particular case or appeal be transferred to and tried before itself.
(2) The High Court may act either on the report of the lower Court, or on the application of a party interested, or on its own initiative :
Provided that no application shall lie to the High Court for transferring a case from one Criminal Court to another Criminal Court in the same sessions division, unless an application for such transfer has been made to the Sessions Judge and rejected by him.
(3) Every application for an order under subsection (1) shall be made by motion, which shall, except when the applicant is the Advocate-General of the State, be supported by affidavit or affirmation.
(4) When such application is made by an accused person, the High Court may direct him to execute a bond, with or without sureties, for the payment of any compensation which the High Court may award under Sub-section (7).
(5) Every accused person making such application shall give to the Public Prosecutor notice in writing of the application, together with a copy of the grounds on which it is made; and no order shall be made on the merits of the application unless at least twenty-four hours have elapsed between the giving of such notice and the hearing of the application.
(6) Where the application is for the transfer of case or appeal from any subordinate Court, the High Court may, if it is satisfied that it is necessary so to do in the interests of justice, order that, pending the disposal of the application, the proceedings in the subordinate Court shall be stayed, on such terms as the High Court may think fit to impose :
Provided that such stay shall not affect the subordinate Courts power of remand under Section 309.
(7) Where an application for an order under subsection (1) is dismissed, the High Court may, if it is of opinion that the application was frivolous or vexatious, order the applicant to pay by way of compensation to any person who has opposed the application such sum not exceeding one thousand rupees as it may consider proper in the circumstances of the case.
(8) When the High Court order under subsection (1) that a case be transferred from any Court for trial before itself, it shall observe in such trial the same procedure which that Court would have observed if the case had not been so transferred.
(9) Nothing in this section shall be deemed to effect any order of Government under Section 197.
7. It is further worth to notice relevant provisions of the High Court Rules, the Constitution of India and other statute, Rule 1, 2, and 3 of the High Court Rules and Patna reads as under:-
1. There shall be a Standing Committee composed of
(a) the Chief Justice;
(b) two Judges nominated by the Chief Justice who shall have executive charge of the Administrative Department. (They shall be generally the senior most Judges to be designated as Judge, Administrative Department 1, and Judge, Administrative Department II. In case any Judge is unwilling to work as an Administrative Judge, the Judge next in the order of seniority will be appointed in his place.)
(c) four Judges nominated by the Chief Justice by ratition for a period of two years. (One of them shall be the Judge appointed from Superior Judicial Service.)
2. The Standing Committee shall be charged with the control and direction of the Subordinate Courts, so far as such control and direction are exercised otherwise than judicially.
3. The Standing Committee shall have power, without reference to the Judges generally -
(i) to dispose of all correspondence within its own Department urgent in its nature and not of general importance;
(ii) to make recommendations for promotion of Subordinate Judges to the rank of Additional District and Sessions Judges and of the Additional District and Sessions Judge to the rank of District and Sessions Judge, and their initial posting on promotion or appointment;
(iii) (a) to exercise the power exercisable by the Court under the Code of Criminal Procedure, 1973;
(b) to make recommendations to the Government for the vesting of special powers under any special Act;) .
(iv) to pass orders of transfer of District and Sessions Judges and Additional District and Sessions Judges;
(v) to make recommendations for the deputation of officers of Bihar Judicial Service or Superior Judicial Service to posts under the Government of India, Government of Bihar or other State Government or to Foreign Service;
(vi) to issue orders regarding the promotion of Munsifs;
(vii) to pass orders of suspension, initiation of departmental proceedings against members of the Superior Judicial Service and Subordinate Judicial Service, and consequential orders in the said proceedings other than that of dismissal from service;
(viii) to issue Circular Orders and General Letters to the Subordinate Courts;
(ix) to dispose of any matter which might have been dealt with by the Judge in charge of the Administrative Department, but which he has referred to the Committee for their opinion;
(x) to make recommendation to the State Government for compulsory retirement of any Judicial Officer of any rank :
Provided that notice of the decision of the Standing Committee shall be circulated to the Pull Court within ten days from the date of the Decision and if any member of Pull Court desires, within (three weeks) of the decision, the matter to be discussed at a meeting of the Pull Court then no action will be taken till the decision at such a meeting; and
(xi) to dispose of any matter referred to it by the Full Court which might have been dealt with by the Full Court.
8. Articles 227 and 235 of the Constitution of India reads as under:-
Article 227 :- Power of Superintendence over all Courts by the High Court:-
(1) Every High Court shall have superintendence over all Courts and Tribunals throughout the territories in relation to which it exercises jurisdiction.
(2) Without prejudice to the generality of the foregoing provision, the High Court may -
(a) call for returns from such Courts;
(b) make and issue general rules and prescribe forms for regulating the practice and proceedings of such Courts; and
(c) Prescribe forms in which books, entries and accounts shall be kept by the officers of any such Courts.
(3) The High Court may also settle tables of fees to be allowed to the sheriff and all clerks and officers of such Courts and to attorneys, advocates and pleaders practising therein:
Provided that any rules made, forms prescribed or tables settled under Clause (2) or Clause (3) shall not be inconsistent with the provision of any law for the time being in force, and shall require the previous approval of the Governor.
(4) Nothing in this article shall be deemed to confer on a High Court powers of superintendence over any Court or tribunal constituted by or under any law relating to the Armed Forces.
Article 235 :- Control over subordinate Courts:- The control over district Courts and Courts subordinate thereto including the posting and promotion of, and the grant of leave to, persons belonging to the judicial service of a State and holding any post inferior to the post of district Judge shall be vested in the High Court, but nothing in this article shall be construed as taking away from any such person and right of appeal which he may under the law regulating the conditions of his service or as authorising the High Court to deal with him otherwise than in accordance with the conditions of his service prescribed under such law.
Clause 22 of the Letters Patent constituting the High Court of Judicature at Patna reads as under:-
Clause 22:- And we do further ordain that the High Court of Judicature at Patna shall have power to direct the transfer of any criminal case or appeal from any Court to any other Court of equal or superior jurisdiction, and also to direct the preliminary investigation or mal of any criminal case by any officer or Court otherwise competent to investigate or try it, though such case belongs in ordinary course to the jurisdiction of same other officer or Court.
9. From persual of the above provision of law it is thus clear that the High Court has been vested with complete and exclusive power over the judicial hierarchy in the State with regard to their administration, superintendence and control. This includes the power of proper distribution of work amongst the higher and lower judicially by way of order or direction for the efficient and expeditious administration of justice at various levels. According to me Rules 1, 2 and 3 do not in express words lays down that the Standing Committee or the Chief Justice shall he in control of the administrative and executive works of the High Court but these rules makes the High Court the repository of all powers relating to administration and executive work.
10. Besides the above the High Court is vested with plenary and unfettered administration and judicial power under Articles 227 and 235 of the Constitution of India apart from the power under Section 407 of the Code of Criminal Procedure, the High Court Rules and the Letters Patent of High Court under which the High Court can exercise its power even at his own initiative just as it has power to do under Section 407 of the Code of Criminal Procedure.
11. Although Mr. Kanhaiya Prasad Singh learned Senior counsel appearing on behalf of the petitioners during the course of his argument has very boldly and fairly conceded that such administrative power is vested with the High Court and the High Court can pass such order in its administrative side but subject to certain conditions. In view of the concession made by the learned counsel although not necessary now to go into that question but I may express my view to the well settled law that when the authority in vested with power to act in different capacity, does a thing, it should be presumed that i( does so in the capacity it is competent to act. Since the High Court is (he judicial authority competent to transfer the case under Section 407 of the Code of Criminal Procedure, the inference would be that the decision was taken under that provision. It is equally well settled that such administrative order cannot be ignored by assuming irregularity or defective in form when it does not prejudice the accused or vitiate the proceeding. This question is, therefore, answered by me in affirmative i.e., High Court has invested with complete and exclusive power in the matter of administration, superintendence and control and distribution of work among the higher and the lower judiciary.
Re Question No. 2 :- Mr. Kanhaiya Prasad Singh learned Senior counsel appearing on behalf of the petitioners vehemently raised this point and submitted that even if power is exercised by the High Court in its administrative side that power can be " and is exercised purely for administrative exigency without impinging upon and prejudicially affecting the rights or interest of the parties to any judicial proceeding. In support of that learned counsel submitted that the petitioner who were facing trial in the aforesaid Sessions Trial had engaged friendly lawyers who were ready to defend them gratuitously. Now the petitioners have been put to great inconvenience as those lawyers at Muzaffarpur refused to go to Patna and defend them. The petitioners and other accused persons said to have not in a position to engage lawyers at Patna for their defence. In a nut - shell the counsel submitted that no transfer of cases should be made which resulted inconvenience to the accused persons and other interested persons. On the other hand, learned counsel appearing on behalf of the respondents again drawn my attention to the counter affidavit and the ordersheets passed by the Sessions Judge, Muzaffarpur. From the order dated 24-5-1996 it appears that some nuisance were created by some litigant public who appears to be political supporters of the accused persons and who were present in the Court room at the time of trial of (he case. However, the learned court in its order observed that the parties will take necessary care so that decency and decorum of the Court will be maintained by the learned lawyers for both the parties. It further appears from the order dated 4-6-1996 that during the course of examination of P.W. I some of the accused persons along with their lawyers created nuisance. Not only that some of the accused persons began to abuse prosecution witnesses and also the public prosecutor and his associate Additional P.P. stating that they will have to face dire consequences. Learned counsel had also drawn my attention to a copy of the letter dated 13th June, 1996, written by Presiding Officer of the Sessions Court to the Registrar General of this Court from which it appears that the Presiding Officer was receiving many abusive and filthy telephonic calls given threats of dire consequences. The Presiding Officer further stated in his letter that because of the telephonic threat the life and prestige of his wife who is a teacher and his unmarried college going daughter arc at stake.
12. Although I have appreciated the submission of Mr. Kanhaiya Prasad Singh who relying upon a decision of the Supreme Court in the case of Ranbir Yadav v. State of Bihar reported in (1995) 4 SCC 392 : 1995 Cri LJ 2665, submitted that such administrative order can be passed but without impinging upon and prejudicially affecting the right or interest of the parties to any judicial proceeding. But in view of the circumstances created by the accused persons including the petitioners and their political supporters which is evident from the ordersheet of the learned Sessions Judge I am of the opinion that the case was rightly transferred by the High Court from the Court of Muzaffarpur for better and impartial trial of the case. Mere inconvenience cannot be a ground for interference with the order of transfer. In Punya Nanda Avadhut v. State the Division Bench of the Calcutta High Court in AIR 1970 Cal 241 : 1970 Cri LJ 806 while deciding a question of transfer of the case from the Sessions Judge, Purulia Division to another Division has held that even if by the transfer order some inconvenience was caused to the accused persons the order cannot be said to be bad when it was expedient for the ends of justice that the case should be transferred from the District of Purulia. In paragraph 5 of the judgment their Lordships observed as under:-
We find that the enquiry before the committing Magistrate at Purulia was conducted by the Public Prosecutor of Bankura who was appointed by the State Government to conduct this prosecution at Purulia. We find, however, that after the commitment was made the Public Prosecutor, Bankura, is no longer available for conducting the prosecution before the Sessions Judge and Mr. Banerjee, the learned Deputy Legal Remembrancer informs us that the State has engaged one Assistant Public Prosecutor from Asansol to conduct the case before the Sessions Judge, Purulia. It thus appears that no Public Prosecutor will be available at Purulia for conducting this prosecution. Furthermore, we find that one of the accused persons, who was the local Block Development Officer at the time of the incident and against whom serious allegations have been made is now a Sub-Deputy Collector posted at Purulia, Sadar. Thus, the case is to be heard by the Sessions Judge with whom the said accused person has nothing to do. But the prosecution witnesses will be the people of the locality where the accused was the Block Development Officer at the relevant time and he is still an officer at Purulia where the trial is to be held. We feel that it would be expedient for the ends of justice that the trial should be held elsewhere, than at Purulia, Mr. Mukherjee no doubt tells us that the accused persons will be much prejudiced in view of the fact that they have engaged their lawyers who have been paid their fees. That is certainly of some consideration. But then, for the other reasons which we have said, we feel that even if that means some inconvenience to the accused persons the trial should be held elsewhere. We hold, therefore, that it is expedient for the ends of justice that this case should be transferred for trial from the district of Purulia.
13. Having regard to the facts of the case and the Circumstances created by the accused persons including the petitioners and their supporters while the case being conducted by the Sessions Judge, Muzaffarpur I am of the opinion that the trial of the Sessions Case was rightly transferred by the High Court even if convenience by the said order might have or may have caused to the petitioners.
14. Be that as it may, I am further of the opinion that such administrative order is not open to challenge before this Court because of the fact that it is purely an internal arrangement of the High Court itself. The Chief Justice being the head of the Judicial hierarchy in the State together with the Standing Committee having been vested with the power of administrative and judicial control of the High Court, it-has power and duty to see that the judicial work in the State at different levels of lower and higher judiciary is carried out efficiently and expeditiously. In this view of the matter also I am not inclined to interfere with the order.
15. Accordingly, this writ application is dismissed/Before parting with the judgment I may observe and direct the Additional District and Sessions Judge, Patna, to whom the sessions trial was transferred for hearing, to proceed with the trial and record the evidence of the witnesses on day to day basis and to conclude the trial expeditiously without interruption as directed by the Supreme Court.