Tripura High Court
Prosecution/ vs Sri Sumit Banik on 15 February, 2022
Author: Arindam Lodh
Bench: Arindam Lodh
Page 1 of 48
HIGH COURT OF TRIPURA
AGARTALA
Tr.P.(CRL.) NO.1 OF 2022
The State of Tripura
(To be represented by :
Secretary, Home Department,
Government of Tripura)
........... Prosecution/Petitioner(s)
Versus
1. Sri Sumit Banik,
S/O Sri Naresh Chandra Banik,
R/O Ramthakur Road, College Tilla, Adarsha Palli,
P.O. College
P.O. P.S. East Agartala,
District-West Tripura,
Pin-799 004.
2. Sri Sukanta Biswas,
S/O Lt. Sitendra Chandra Biswas,
R/O Akhaura Road,
Border Gol Chakkar,
P.O. Ramnagar, P.S. West Agartala,
District-West Tripura, Pin-799 002.
3. Sri Sumit Chowdhury,
S/O Sri Sisir Kanti Chowdhury,
R/O Ramthakur Road, Near Udiaman Sangha,
P.O. College P.O., P.S. East Agartala,
District-West Tripura,
Pin-799 004.
4. Sri Omar Sharif @ Sueb,
S/O Sri Anu Miah,
R/O Masjid Patti Road, Santipara,
P.O. Head P.O., P.S. East Agartala,
District-West Tripura,
Pin-799 001.
........... Respondent/Accused person(s)
BEFORE HON'BLE MR. JUSTICE ARINDAM LODH For petitioner(s) : Mr. Samrat Kar Bhowmik, Sr. Advocate Mr. Anirban Bhattacharjee, Advocate Mr. Ratan Datta, P.P. Mr. Sumit Debnath, Addl. P.P. Page 2 of 48 For Respondent(s) : Mr. P.K. Biswas, Sr. Advocate Mr. Somik Deb, Sr. Advocate Mr. P. Majumder, Advocate Mr. D. Biswas, Advocate Mr. A.K. Banerjee, Advocate Date of hearing : 31.01.2022 Date of delivery of judgment & order : 15.02.2022 Whether fit for reporting : YES JUDGMENT & ORDER In a peculiar circumstance, Secretary, Home Department, Government of Tripura, representing the State of Tripura has moved the instant petition under Section 407 of CrPC read with Section 482 of CrPC to withdraw and transfer the case No.ST(T-1) 103 of 2019 from the Court of learned Addl. Sessions Judge, Court No.2, West Tripura, Agartala to any other Court of competent jurisdiction within West Tripura Sessions Division, and further to quash and set aside the order dated 20.12.2021 passed by learned Addl. Sessions Judge in the aforesaid case whereby the learned Addl. Sessions Judge directed (i) The State of Tripura(being represented by the Secretary, Law Department, Government of Tripura), (ii) Ld. Senior Advocate Mr. Samrat Kar Bhowmik and (iii) Ld. Advocate Mr. Anirban Bhattacharjee, to show cause within two weeks as to why the petition filed by the prosecution dated 20.12.2021 for expunction of remarks would not be referred to the High Court of Tripura for drawing contempt proceedings against them. Page 3 of 48
2. A criminal trial had been in seisin in the Court of learned Addl. Sessions Judge, Court No.2, West Tripura, Agartala. The respondents were put on trial being charged under Sections 302/34 of Indian Penal Code. On 17.12.2021, it was fixed for re-examination of witnesses, namely Sri Kishore Kumar Paul(PW2) and Smt. Mitra Das(PW10), the J.M. 1st Class, Belonia, South Tripura. On 16.12.2021, the appointed Special Public Prosecutor, Mr. Samrat Kar Bhowmik, learned Sr. Advocate had telephonic discussions with his witness, namely Smt. Mitra Das thrice wherein the witness informed him that she would be extremely busy on 17.12.2021 with her regular judicial duty in addition to her works relating to Juvenile Justice Board, and requested the learned senior counsel to take an adjournment.
3. On perusal of the petition filed by the prosecution praying for adjournment, it transpires that the adjournment prayer was made on two grounds, firstly, "That Smt. Mitra Das being the Principal Magistrate Juvenile Board and Civil Judge(Jr. div) and J.M. 1st Class, Belonia is having her duty in Juvenile Board and regular bench works for which she may not be available today." and secondly, Ld. Sr. Counsel would be awfully busy with the cases in the High Court.
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4. In response to the said adjournment petition dated 17.12.2021, the learned Addl. Sessions Judge, Court No.2, had passed the following order:
"17.12.2021 Learned Sr. Advocate Mr. S. Kar Bhowmik as Special PP being assisted by Learned Advocate Mr. A. Bhattacharjee representing the State has filed an application contending inter alia that PW10(Mrs. Mitra Das, Civil Judge (Jr.Division) & JM 1st Class, Belonia, is having her duty in Juvenile Board and regular bench works for which she may not be available today. It has been further stated in the application that Learned Special PP having his cases fixed in the Hon'ble High Court on both first and second half and as such, it is not possible for him to attend the Court along with another witness, i.e., PW2 (Sri Kishore Kumar Paul).
Accused persons namely, Sumit Chowdhury, Sumit Banik, Sukanta Biswas and Omar Sherif are produced from JC.
Learned Sr. Advocate Mr. P. K. Biswas being assisted by Learned Advocate Mr. M. K. Biswas representing the accused Sumit Chowdhury, Sumit Banik, Sukanta Biswas is also present.
Learned Advocate Mr. A. Banerjee representing the accused Omar Sherif is also further present.
PW10 was scheduled to be examined through VC from the office of Learned District & Sessions Judge, South Tripura, Belonia and the scheduled time Page 5 of 48 was 11 am and it was informed to the parties yesterday. Learned Special PP, however, sought time on the ground that the PW10 may not be available being busy with her official duties but, surprisingly PW10 was present in the VC Room as per schedule. The contention so made in the application in regards to PW10 is found to be without any basis and not at all desirable. That apart, Learned Special PP expressed his inability through the application to appear before this Court having busy in the High Court but, nothing stated as to why the witness, i.e., PW2 did not appear. Moreover, engagement of an Advocate in any Court is not at all a ground for adjournment. Therefore, the application so filed for an on behalf of the prosecution is found to be undesirable.
Further it appears from the record that the OC, West Agartala PS was required vide order dated 14.12.2021 to arrange production of PW2, Kishore Kumar Paul today but no attempt appears to have been taken by the OC, West Agartala PS. Send a copy of this order to the OC, West Agartala PS asking him to explain as to why he did not comply the order dated 14.12.2021.
PW10 being present through VC, she was cross examined for and on behalf of the accused persons namely, Sumit Chowdhury, Sumit Banik, Sukanta Biswas. None, however, appeared for the prosecution as per VC schedule.Page 6 of 48
Learned Special PP is further required to produce PW2 (Kishore Kumar Paul, 2nd IO ( SI Kajal Debnath) and 3rd IO (SI Srikanta Guha) on the next date already fixed).
No bail petition for the accused persons. Hence, they are further remanded to JC till 20.12.2021.
Inform all concerned.
To date fixed(20.12.2021)."
5. Following the aforesaid order, the prosecution moved an application on 20.12.2021 to expunge the caustic remarks as made in the order sheet dated 17.12.2021. The contents of the said application may be reproduced here-in- below, for convenience, in extenso:-
"IN THE COURT OF ADDL. SESSIONS JUDGE WEST TRIPURA, AGARTALA COURT NO: 2 CASE NO: ST(T-1) 103 of 2019 The State of Tripura.
Vs. Sri Sumit Banik & Others.
....Accused Persons A petition by the prosecution to expunge the caustic remarks as made in the order dated 17.12.2021.
The prosecution above named respectfully submits that:-
1. In the order sheet dated 17.12.21 this Ld. Court was kind enough to make the following observations "The contention so made in the application in regards to PW10 is found to be without any basis and not at all desirable".Page 7 of 48
2. That in this regard it is submitted that Ld. Special PP, Sr. Advocate Sri S. Kar Bhowmik himself talked with PW-10 Smt. Mitra Das thrice on 16.12.21 when the witness informed that she will be extremely busy on 17.12.21 with her regular judicial duty and works relating to Juvenile Justice board and requested the Ld. Sr. Counsel to take an adjournment. That accordingly the petition was filed.
3. That on 17.12.21 this Ld. Court in absence of Ld. Special PP, Sr. Advocate Sri S. Kar Bhowmik examined the said witness and made the aforesaid caustic observation which is rather undesirable and uncalled for since the petition was filed by Advocate on record under instruction from the Ld. Sr. Advocate.
4. That by the aforesaid observations this Ld. Court rendered the petition filed by the prosecution as "baseless‟ which is not at all true. Since telephonic conversation between PW-10 and Ld. Spl. P.P was basis of that petition.
5. The aforesaid fact may kindly be checked with PW- 10 Smt. Mitra Das who is other wise a very respectable and dignified lady Judicial Officer.
6. Further PW-2 Kishore Kumar Paul could not be examined since Ld. Sr. Advocate and Spl PP was badly engaged in Hon'ble High Court upto 4.45 PM on 17.12.21 before the Court of Hon'ble Mr. Justice S.G. Chattopadhyay in conducting item no 8.
7. On the given circumstances prosecution humbly prays that the aforesaid observations may kindly be expunged from page 2 of the daily order sheet dated 17.12.21 and thus oblige.
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And For this act of kindness the prosecution as in duty bound shall ever pray."
6. On 20.12.2021, the case was fixed for examination of some witnesses. The learned Addl. Sessions Judge has also taken the cognizance of the petition filed by the prosecution to expunge the remarks made in the order dated 17.12.2021.
7. Having perused the contents of the said petition, the learned Addl. Sessions Judge observed thus:
"..........On the circumstances as appeared from the application as well as the submission of learned Senior advocate, it appears that learned Senior Advocate Mr. Kar Bhowmik not only advised his client(State of Tripura) to file such an application but also instructed his assistant to file the application.
The contentions so made in the application as underlined here-in-above are prima facie appears to be disrespectful towards this court and thereby, in the opinion of this court, may amount to contempt of this court.
In this view of the matter, the application so filed to expunge the remarks passed by this court on 17.12.2021 deserves no consideration.
Regard being had to the prima facie observation as given here-in-above, (i) The State of Tripura(being represented by the Secretary, Law Department, Govt. of Tripura), (ii) Learned Senior Advocate Mr. Samrat Kar Bhowmik and (iii) Learned Advocate Mr. Anirban Bhattacharjee ...... ..... .......Page 9 of 48
...... ...... ..... ...... ............ ...... .......
A copy each of this order also be furnished to the Secretary, Law Department, Govt. of Tripura through learned P.P., West Tripura, Learned Senior Advocate Mr. Samrat Kar Bhowmik and Learned Advocate Mr. Anirban Bhattacharjee so as to enable them to submit reply within two weeks."
8. Thereafter, a petition was filed by the prosecution before the Court of learned Sessions Judge, West Tripura, Agartala to transfer the case from the Court of learned Addl. Sessions Judge, Court No.2 to any other Court of competent jurisdiction within West Tripura Judicial District on the ground that the nature of the order dated 20.12.2021 passed by the learned Addl. Sessions Judge, Court No.2 has completely vitiated the ambiance of trial and the prosecution has lost all faith and hope from the said learned Court.
9. Having heard the learned counsels appearing for the prosecution, as well as the respondents of this petition, the learned Sessions Judge has rejected the prayer of the prosecution under order dated 11.01.2022.
10. Being aggrieved by and dissatisfied with the order passed by the learned Sessions Judge, West Tripura Judicial District in case No.Crl.Misc.13 of 2021, the petitioner-State of Tripura has preferred the instant petition before this Court with Page 10 of 48 the prayers as already have been stated in the opening paragraphs of this order.
11. Mr. S. Kar Bhowmik, learned senior counsel, Mr. Ratan Datta, learned Public Prosecutor appeared and argued the case at length on behalf of the State of Tripura. Mr. P.K. Biswas, learned senior counsel, assisted by Mr. P. Majumder, learned counsel and Mr. Somik Deb, learned senior counsel appeared and argued the case on behalf of respondent Nos.1 to 3, Mr. A. K. Banerjee, learned counsel appeared and made his submissions on behalf of respondent No.4. All the respondents are the accused of the case and facing the trial.
12. On 20.01.2022, when the matter was heard by this Court, Mr. Biswas, learned senior counsel as well as Mr. Banerjee, learned counsel appearing on behalf of the respondents have fairly submitted that the part of the order dated 20.01.2021 issuing notice upon (i) The State of Tripura(being represented by the Secretary, Law Department, Government of Tripura), (ii) Ld. Senior Advocate Mr. Samrat Kar Bhowmik (iii) Ld. Advocate Mr. Anirban Bhattacharjee, to show cause as to why the matter should not be referred to High Court of Tripura to draw contempt proceedings against them, should be interfered with by this Court, and on the basis of that submission that part of the order was set aside and quashed Page 11 of 48 vide order dated 20.01.2022 passed by this Court in IA No.1 of 2022 arising out of Tr.P.(Crl.) No.1 of 2022.
13. To support the present transfer application filed on behalf of the State of Tripura, Mr. Kar Bhowmik, learned senior counsel mainly emphasized that the State lost its confidence and faith upon the learned Addl. Sessions Judge, Court No.2. Learned senior counsel argued that the atmosphere for a conducive and fair trial had been vitiated before the Addl. Sessions Judge, West Tripura, Agartala, Court No.2. Mr. Kar Bhowmik, learned senior counsel further argued that the State expressed its frustration because the way the learned Addl. Sessions Judge had proposed to issue notice of contempt as stated above upon the Law Secretary, Government of Tripura. The State did not find any reason of issuing show-cause notice upon the Law Secretary and according to the State, the said order aptly manifests that the Court is biased. Learned senior counsel contended that the morale of the State broke down due to such order for the reason that the learned Addl. Sessions Judge, Court No.2 was conducting a sensational trial where murder of a bank officer was caused allegedly by the accused persons, the respondents herein and the Hon'ble High Court had accepted the custodial trial of the accused persons considering the interest of transparent and fair trial.
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14. On the other hand, Mr. Biswas, learned senior counsel opposing the prayers of the State mainly confined his submissions in respect of the legal positions that:
(i) Lawyer's busy in another Court should not be an appropriate ground to adjourn a case as contemplated under the Second Proviso to sub-section (2) of section 309,
(ii) If the case is transferred to another Court, then, the Court conducting the trial will be demoralized,
(iii) The Court will exercise its power under Sections 407 and 482 of CrPC sparingly and in exceptional circumstances.
Mr. Somik Deb, learned senior counsel in addition to the submissions of Mr. Biswas submitted that it was a show- cause simpliciter and it would be wrong to suggest that the Court acted in bias against the interest of the State.
Mr. Banerjee, learned counsel appearing on behalf of respondent No.4 had adopted the submissions of Mr. P.K. Biswas and Mr. Deb, learned senior counsels.
15. Responding to the submissions of Mr. Biswas, learned senior counsel, Mr. R. Datta, learned P.P. appearing for the petitioner-State tried to persuade this Court that the learned senior counsel appearing for the respondents misinterpreted the provisions of Section 309 of CrPC. According to learned P.P., Page 13 of 48 none of the witnesses had attended the Court proceeding on that day and no "hazira‟, i.e. memo of attendance on behalf of the witnesses was submitted to the Court. According to learned P.P., the Second Proviso to sub-section (2) of section 309 will be applicable only when the witness or witnesses appear before the Court for examination and a lawyer is not found to participate in the proceeding, rather asking for adjournment on the ground that he is busy in another Court.
16. In support of the rival submissions, the respective counsels had pressed into service catena of judgments rendered by Hon'ble Supreme Court as well as different High Courts.
Before I deal with the merits of the present petition, I would like to refer and discuss the principles laid down in the judgments relating to the subject and dispute of the present petition.
Firstly, I shall discuss the judgments as referred to by learned senior counsel appearing for the petitioner-State. 16.1. In Hazara Singh Gill vs. The State of Punjab, reported in AIR 1965 SC 720 ; 1964 SCR(4) 1, a three-Judge Bench of the Hon'ble Supreme Court held, that where the petitioner makes out a case from which it is possible for the court to infer that he reasonably entertains apprehension that he would not get justice in his case, the interests of justice demand that the case should be transferred outside the State. Page 14 of 48 16.2. In Kanaklata vs. State of (NCT) of Delhi & Ors., reported in 2015 Legal Eagle(SC) 121[Criminal Appeal No.222 of 2015(Arising out of SLP(Crl.) No.881 of 2014], again a three-Judge Bench of the Hon'ble Supreme Court held thus:
"5. ......... ......... .........
.........Having said that, there may still be situations where the nature of the observations made by the court concerned create a reasonable apprehension in the mind of the litigant that the Court has so committed itself to a given approach or thought process that it may not be possible for it to retrace its steps to take a fair and non-partisan view in the matter. The present appears to be one such case where despite the safeguards provided by the High Court's observations, the apprehension of the complainant continues to subsist. We do not think that such apprehension is wholly misconceived nor can it be dubbed as forum shopping in disguise. The earlier order passed by the trial Court is so strongly worded that it could in all likelihood give rise to a reasonable apprehension in the mind of the complainant which cannot be lightly brushed aside. We must hasten to add that we are not in the least suggesting that the Presiding Officer of the trial Court is totally incapable of adopting a fair approach while passing a fresh order but then the question is not whether the Judge is biased or incapable of rising above the earlier observations Page 15 of 48 made by her. The question is whether the apprehension of the complainant is reasonable for us to direct a transfer. Justice must not only be done but must seem to have been done. A lurking suspicion in the mind of the complainant will leave him with a brooding sense of having suffered injustice not because he had no case, but because the Presiding Officer had a preconceived notion about it. On that test we consider the present to be a case where the High Court ought to have directed a transfer. In as much as it did not do so, we have no option but to interfere and direct transfer of the case to another Court."
16.3. A learned Judge of Patna High Court in Mahammad Mian vs. Emperor, decided on 07.05.1919, reported in 52 Ind Cas 54, observed thus:
"2. A long series of cases have established that (1) it is expedient for the ends of justice to transfer a case from the file of one Magistrate to that of another competent to try it, if, by reason of the words or conduct of the Magistrate before whom the case is pending, any party reasonably apprehends that there is a bias against him in the mind of the Magistrate, though there may not be in fast any actual bias, and (2) the transfer of a case should be ordered when there are circumstances which may reasonably lead the petitioner to believe that the Magistrate has to some extent prejudged the case against him and will in consequence be prejudiced against him.Page 16 of 48
6. I think, therefore, that a transfer is expedient in this case. I ought to state, however, that, in my opinion, the Magistrate has no real bias against the petitioner. But he has unfortunately used words which are calculated to create in the mind of the petitioner a reasonable apprehension that justice may not be done to him. I cannot too strongly press upon the Magistrate that "next to the importance of deciding a case fairly and impartially is the importance of conducting oneself in such a manner as to inspire in the minds of the parties a confidence that nothing but absolute justice would be done to them:" [See Lolit Mohan Moitra v. Surja Kanta Acharjee 28 C. 709 : 5 C.W.N. 749.]. I have no doubt whatever that the learned Deputy Magistrate would have tried the case fairly and impartially, but I have also no doubt that, without intending it, he has unfortunately conducted himself in such a way as has created in the mind of the petitioner a reasonable apprehension that he will not secure absolute justice from him. In this view and without casting the slightest reflection on the Magistrate, I deem it expedient that the case should be transferred from his file."
16.4. In Zora Singh vs. State of Haryana, reported in 1996 CrLJ 1374 : 1995 Legal Eagle(P&H) 1115, a learned Judge of Punjab and Haryana High Court held thus:
"7. In an application for transfer, what has to be considered is whether the accused has ground for reasonable apprehension that he may not have an impartial trial. If the actions of a judicial officer, though Page 17 of 48 susceptible of explanation and traceable to superior sense of duty, are calculated to create in the mind of the accused an apprehension that he may not have an impartial trial, the case should be transferred. It is thus clear that only a reasonable apprehension in the mind of the accused that the trial Judge is biased is enough to order transfer of the case, although the trial Judge may not be actually biased and the circumstances may be capable of explanation.
8. In the case in hand, as already stated, the additional Sessions Judge has given a definite finding in the Sessions case State v Mukand Singh that the murder of Avtar Kaur wife of Sher Singh was a strong motive on the part of the accused persons to commit the murder of Jasbir Singh and others. Jasbir Singh is named as one of the accused in the present case. Where a trial Judge in a counter case has clearly formed a strong opinion having considerable bearing on the other case, it would be just and appropriate that the other case pending in this Court should be withdrawn and transferred. The trial Judge, consciously or sub-consciously would definitely be influenced by his findings in the earlier Sessions case disposed of by him. Although as a matter of practice, the cross cases should be decided by the same Court but simultaneously, so that no occasion arises forgiving rise to any apprehension in the mind of the accused persons for the prejudicial approach of the trial Judge. In these circumstances, I have no hesitation in holding that the petitioner has definitely made out a just ground for the transfer of the aforesaid Sessions case Page 18 of 48 from the Court of Shri L.N. Mittal, Additional Session Judge, Sirsa."
16.5. In Nilesh Jap Daru vs. State of Maharashtra, reported in 2004 Legal Eagle (BOM) 1270: 2006(2) AIR(Bom) 575, it was held that:
"7. Keeping in view the overall facts and circumstances of the case, I agree with the learned Sessions Judge that the proceedings of the case and the order dated 11.6.2004 does not reveal any bias against the petitioner. At the worst, they show the concerned Judge's annoyance at the failure on the part of the learned Advocate for the petitioner to be present in his Court when the case was taken up for hearing on 10.6.2004 and 11.6.2004. It is now well settled that in considering the expediency of directing a transfer for the ends of justice, it is essential to decide not merely the question whether there has been any real bias in the mind of a Judge but also the further question whether the incidents happened in the court create in the mind of an accused a reasonable apprehension that he may not have a fair and impartial trial. In other words, it often becomes necessary to consider whether there is a reasonable ground for assuming the possibility of bias and whether it is likely to produce in the mind of a litigant or public at large a reasonable doubt about fairness of administration of justice. It would always be a question of fact to be decided in each case. The events in the Court dated 10.6.2004 and Page 19 of 48 11.6.2004 followed by the order dated 11.6.2004 passed in Misc. Application No. 761 of 2004, in my opinions are sufficient to create such apprehension in the mind of the petitioner that he would not get justice from the concerned Judge. The said order was ultimately quashed and set aside by this Court by order dated 16.6.2004. Though I do not believe that the petitioner will not get justice from the learned Judge, the things have taken such a turn in this case as to make the petitioner apprehensive that he will not get a fair trial from the learned Judge. In the circumstances, in my opinion, the learned Sessions Judge should not have rejected but allowed the application of the petitioner under Section 408 of Cr.P.C."
16.6. In Tessta Setalvad vs. State of Gujarat, reported in (2004) 10 SCC 88 : AIR 2004 SC 1979, the Hon'ble Supreme Court had observed thus:
"7. ...... ...... ...... ......... ...... ...... The observations quoted above do not prima facie appear to have any relevance to the subject-matter of the dispute before the High Court. Time and again this Court has deprecated the practice of making observations in judgments, unless the persons in respect of whom comments and criticisms were being made were parties to the proceedings, and further were granted an opportunity of having their say in the matter, unmindful of the serious repercussions they may entail Page 20 of 48 on such persons. Apart from that, when there is no relevance to the subject-matter of adjudication, it is certainly not desirable for the courts to make any comments or observations reflecting on the bona fides or credibility of any person or their actions. Judicial decorum requires dispassionate approach and the importance of issues involved for consideration is no justification to throw to the winds basic judicial norms on mere personal perceptions as saviours of the situation.
8. xxx xxx xxx
9. Observations should not be made by courts against persons and authorities, unless they are essential or necessary for decision of the case. Rare should be the occasion and necessities alone should call for its resort. Courts are temples of justice and such respect they also deserve because they do not identify themselves with the causes before them or those litigating for such causes. The parties before them and the counsel are considered to be devotees and pandits who perform the rituals respectively seeking protection of justice; parties directly and counsel on their behalf. There is no need or justification for any unwarranted besmirching of either the parties or their causes, as a matter of routine.
10. ...... .... .... .... Uncalled-
for observations on the professional competence or conduct of a counsel, or any person or authority or harsh or disparaging remarks are not to be made, unless absolutely required or warranted for deciding the case."Page 21 of 48
17. Judgments relied upon by learned senior counsel, Mr. P.K. Biswas appearing on behalf of the respondents are as follows:
17.1. In the case of Bashir Ahmed vs. Mehmood Hussain Shah, reported in (1995) 3 SCC 529, it was held by the Hon'ble Supreme Court that no adjournment shall be granted on the ground that the counsel is engaged in another case and specifically stated that the court shall not grant adjournment.
17.2. Similarly, the Hon'ble Supreme Court in Ram Siromani Tripathi & Ors. vs. State of U.P. & Ors. reported in 2019 SCC OnLine SC 2033 held that the learned counsel for the appellant is not present in the court and he is out of station, the same is not a ground for adjournment.
17.3. In State of U.P. vs. Shambhu Nath Singh, reported in (2001) 4 SCC 667, in paras 9, 11, 12, 13 and 16, it was specifically held by the Hon'ble Apex Court that no adjournment can be granted on the ground to suit the convenience of the concerned advocate and convenience of the advocate is not a reason for bypassing the Section 309 of CrPC and it was further held that all the High Courts were requested to take note of the conduct of any particular trial Judge who Page 22 of 48 violates the above legislative mandate and to adopt such administrative action against the delinquent Judicial Officer.
17.4. In Mohd. Khalid vs. State of W.B., reported in (2002) 7 SCC 334, in paras 54 and 55 it is reiterated by the Hon'ble Supreme Court that no court can adjourn the examination of the witness when the date is fixed for examination of witness on the ground that advocate is busy in another court and it is further held that an advocate abusing the process of court is guilty of misconduct and if the advocate has any unavoidable inconvenience, it is the duty to make other arrangements for examination of witnesses, otherwise it amounts to dereliction of duty of the advocate and if the same is reported, it would amount to misconduct of the advocate concerned.
17.5. In Akil alias Javed vs. State(NCT of Delhi), reported in (2013) 7 SCC 125, in paras 24(A), 34, 35, 36 and 39(3), it was held by the Hon'ble Supreme Court that no adjournment can be granted to suit the convenience of the counsel.
17.6. In Thana Singh vs. Central Bureau of Narcotics, reported in 2013 Cri.L.J. 1262, in para 8 it was held by the Hon'ble Supreme Court that no adjournment can be granted to suit the convenience of the engaged counsel. Page 23 of 48 17.7. In N.G. Dastane vs. Shrikant S. Shivde, reported in (2001) 6 SCC 135, in paras 20, 21 and 22, it was again held by the Hon'ble Supreme Court that no adjournment can be granted due to the absence of the learned engaged lawyer and it amounts to abusing the process of the court by the advocate which amounts to misconduct and it is the duty of the Bar Council to refer such matter to the Disciplinary Committee. 17.8. In Gujarat Electricity Board & Anr. vs. Atmaram Sungomal Poshani, reported in AIR 1989 SC 1433, it was held by the Hon'ble Supreme Court in para 3 that no party is entitled to get a case transferred from one bench to another unless the bench is biased or there are some reasonable grounds for the same, but no right to get a case transferred to any other bench can legitimately be claimed merely because, the Judges express opinion on the merits of the case. 17.9. In Rajesh Talwar vs. Central Bureau of Investigation, reported in 2012 CRI.L.J. 2217 it was held by the Hon'ble Supreme Court in paras 7, 17 and 18 that as the order of issuance of bailable warrant i.e. the petitioner from which it was sought to be inferred that the petitioners were not likely to get justice as the Gaziabad Court was proceeding with a pre-determined mind, but it was held by the Hon'ble Supreme Court that rising of such ground be termed as most irresponsible, though court would have initiated actions against Page 24 of 48 the petitioners but instead they warned the petitioners and it was also held that petition was devoid of merit. 17.10. In Ashish Chanda vs. Asha Kumari, reported in (2012) 1 SCC 680, in paras 2, 30 and 31, it was held by the Hon'ble Supreme Court that apprehension expressed by the respondent No.1 that she should not get a fair trial was baseless and it was held by the Hon'ble Supreme Court that High Court should not have transferred the case to the Special Judge, as the transfer order was termed as merely on the say-so of a party have a demoralizing effect on the trial courts. According to learned senior counsel, in the instant case, in view of this judgment, the word "baseless‟ cannot be termed as caustic remark and no transfer order under Section 407 CrPC is maintainable.
17.11. In R. Balakrishna Pillai vs. State of Kerala, reported in (2000) 7 SCC 129, in para 10 it was held by the Hon'ble Supreme Court that mere allegation that there is apprehension that justice will not be done in a given case is not sufficient, before transferring the case, the court has to find out whether the apprehension is reasonable and it is also held that if this type of applications are entertained the entire judicial atmosphere will be polluted with such frivolous petitions for various reason.
Page 25 of 4817.12. In Jatinderveer Arora vs. State of Punjab, reported in AIR 2021 SC 760, it was held by the Hon'ble Supreme Court in paras 11 and 12 that the apprehension of not getting a fair and impartial trial cannot be found on certain grievances or convenience of the accused but the reasons have to be more compelling than that and one must also be mindful of the fact that when trial is shifted out from one state to another it would tantamount to casting aspersions on the court having lawful jurisdiction to try the case and the power of transfer must be exercised sparingly and only on deserving cases when fair and impartial trial are influenced by external factors, is not at all possible.
17.13. In Pal Singh vs. Central Bureau of Investigation, reported in (2005) 12 SCC 329, in para 3 it was held by the Supreme Court that in the said case 40 witnesses have already been examined and about 15 more witnesses were left to be examined and hence, trial is at the final stage and accordingly the order of transfer was set aside. The present case is fully covered by this judgment.
18. Bearing in mind the aforesaid principles, I now proceed to decide the present petition on merit. The point for determination is whether apprehension of the State-petitioner is reasonable that the atmosphere in the Court of Addl. Sessions Judge, Page 26 of 48 Court No.2 is not conducive for a fair trial and whether the transfer of the case is expedient in the administration of justice. 18.1. I have given my thoughtful consideration to the orders passed by learned Addl. Sessions Judge, particularly the order dated 17.12.2021. Admitted fact is that the prosecution had submitted an application to the Court of learned Addl. Sessions Judge on 17.12.2021 seeking adjournment for further examination of PW2, Kishore Kumar Paul and PW10, Smt. Mitra Das, J.M. 1st Class, Belonia. Having gone through the adjournment petition it is found that the Ld. Prosecutor has specifically stated that he had a discussion with his witnesses, particularly, PW10 Smt. Mitra Das, J.M. 1st Class. Out of that discussion, it appeared to the learned senior counsel that it would not be possible for Smt. Mitra Das to be examined on that day because of her busy schedule pertaining to her regular judicial duty and works relating to Juvenile Justice Board. During the course of hearing of the petition also, learned senior counsel, Mr. Kar Bhowmik had urged the Court that in view of his discussion with prosecution witness, Smt. Mitra Das, he submitted the petition to adjourn the case for that day, and preferred to argue the case before the High Court. He did not dispute the fact that being the prosecutor, he instructed PW2 not to come to the Court because he wanted both PW2 and PW10 to be examined on the same day in the interest of Page 27 of 48 prosecution. But, the learned Addl. Sessions Judge found Smt. Mitra Das present during video conference at 11.00 am on 17.12.2021. So he made remarks in his order dated 17.12.2021 that the adjournment petition as submitted by the learned Special Public Prosecutor, Mr. Kar Bhowmik, learned Senior Counsel "without any basis and not at all desirable". These are the words and the languages, according to Mr. Kar Bhowmik, learned senior counsel, would tantamount to personal aspersions, being against his professional ethics and conduct, which prompted him to submit the application praying for expunction of those remarks from the order sheet dated 17.12.2021.
18.2. In the said application filed on 20.12.2021, learned Prosecutor recapitulated the remarks of the learned Addl. Sessions Judge that "the contentions so made in the application in regard to PW10 is found to be without any basis and not at all desirable". Thereafter, learned Prosecutor in his application has reiterated the fact of prior discussions with his witness Smt. Mitra Das on 16.12.2021 and further stated that "Smt. Mitra Das requested the Ld. Sr. Counsel to take an adjournment" and further stated "That accordingly the petition was filed". In the petition, it is further stated that "the aforesaid caustic observation which is rather undesirable and uncalled for since the petition was filed by Advocate on record under instruction Page 28 of 48 from the Ld. Sr. Advocate." He tried to persuade the learned Addl. Sessions Judge, Court No.2, Sri Gobinda Das by making a statement that the petition he filed before him was "baseless‟ was not at all true and it was on the basis of telephonic conversation between PW10 and learned Special Public Prosecutor. It is further stated in the petition that "the aforesaid fact may kindly be checked with PW-10 Smt. Mitra Das who is otherwise a very respectable and dignified lady Judicial Officer".
19. From the order dated 20.12.2021, it appears that the contents of the said petition, particularly, the statement made by learned Addl. Sessions Judge in his order dated 17.12.2021 wherein he made remarks that the adjournment petition filed on 17.12.2021 was "baseless‟ was not at all true, according to learned Addl. Sessions Judge appeared to be disrespectful towards the Court and contemptuous too. Having viewed thus, the learned Addl. Sessions Judge, Court No.2 held that the petition filed by the learned Prosecutor deserves no consideration. Thereafter, he issued notice upon (i) The State of Tripura(being represented by the Secretary, Law Department, Government of Tripura), (ii) Ld. Senior Advocate Mr. Samrat Kar Bhowmik (iii) Ld. Advocate Mr. Anirban Bhattacharjee, to show- cause within two weeks as to why the matter should not be Page 29 of 48 referred to the Hon'ble High Court of Tripura for drawing contempt proceeding against them.
20. On bare perusal of the said order of issuing notice upon the aforesaid persons, at first blush, I am unable to digest what prompted the learned Addl. Sessions Judge, Sri Gobinda Das, Court No.2 to issue notice upon the Secretary, Law Department, Government of Tripura, who is not a party to the proceedings at all. I do not want to make any further comment in this regard but with due respect to learned Addl. Sessions Judge, I would like to convey a message that judicial restraint is a virtue. Learned Prosecutor by filing the petition for expunction of remarks tried to convince the Court that the petition for adjournment filed on 17.12.2021 had its own foundation and learned Prosecutor reiterated the discussion he had with his witness, Smt. Mitra Das. Thus the petition for expunction of remarks, in my opinion, by no stretch of imagination can be termed as showing disrespect to the Court. In the opinion of this Court, the remarks as made by the learned Addl. Sessions Judge had questioned the integrity and honesty, the Court expects from a designated senior advocate. Such statement or statements can only be said to be false or baseless only after verification with the person concerned. Further, if an advocate, particularly, a designated senior advocate makes any false, Page 30 of 48 baseless or misleading statement to the Court, then, it amounts to professional misconduct. If such advocate is honest to his statement or statements, then, he can and normally, would always react and challenge the court's aspersions involving his personal character and integrity as well as professional ethics.
21. I have gone through the order-sheets, just preceding to 17.12.2021, as it appears in the trial Court's records in connection with ST(T-1) 103 of 2019. It transpires from the order dated 13.12.2021 passed by learned Addl. Sessions Judge, Court No.2, West Tripura, Agartala that a petition under Section 311 of CrPC was filed on behalf of the accused-respondents to recall and re-examine PW2 (Sri Kishore Kumar Paul) and PW10(Smt. Mitra Das, J.M. 1st Class), in response to which learned Special Public Prosecutor had filed objection. The said petition was taken up for hearing on the very next date, i.e. on 14.12.2021 when learned Addl. Sessions Judge had observed thus:-
"By the application dated 13.12.2021 the accused persons namely, Sumit Chowdhury, Sukanta Biswas and Sumit Banik pray for re-calling the PWs.2 and 10 for their further cross-examination on the grounds specified in the application.
Upon consideration, I am of the opinion that refusal to grant the application dated 13.12.2021 may be prejudicial to the accused persons.Page 31 of 48
Accordingly, the application dated 13.12.2021 stands allowed.
Learned Special P.P. to produce the PW2 (Sri Kishore Kumar Paul) on 17.12.2021.
The Co-ordinator, Video Conferencing, O/o. The District Judge, West Tripura, Agartala, shall arrange further cross-examination of PW10( Mrs. Mitra Das, JM 1st Class, Belonia South Tripura) on 17.12.2021 through video conferencing.
xx xx xx
xx xx xx
xx xx xx
Fix 17.12.2021 for further cross-examination of PWs 2 and 10."
22. Now coming back to the case, I have taken into consideration the submissions advanced by the learned senior counsels appearing for the parties regarding interpretation of Section 309 of CrPC which was dealt with by learned Sessions Judge also. Learned Sessions Judge while rejecting the application for transfer filed by the State of Tripura had observed thus:
"Section 309 of Cr.P.C. is very specific that when a witness is present, a Court is bound to examine that witness unless and until the circumstances are such that the witness has to be discharged without examination."
23. Here, it will be useful to reproduce Section 309 of CrPC which is as under:
Page 32 of 48
"309. Power to postpone or adjourn proceedings.--(1) In every inquiry or trial the proceedings shall be continued from day-to-day untilall the witnesses in attendance have been examined, unless the Court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded:
Provided that when the inquiry or trial relates to an offence under section 376, section 376A, section 376B, section 376C or section 376D of the Indian Penal code(45 of 1860), the inquiry or trial shall, as far as possible be completed within a period of two months from the date of filing of the charge sheet.
(2) If the Court after taking cognizance of an offence, or commencement of trial, finds it necessary or advisable to postpone the commencement of, or adjourn, any inquiry or trial, it may, from time to time, for reasons to be recorded, postpone or adjourn the same on such terms as it thinks fit, for such time as it considers reasonable, and may by a warrant remand the accused if in custody:
Provided that no Magistrate shall remand an accused person to custody under this section for a term exceeding fifteen days at a time:
Provided further that when witnesses are in attendance, no adjournment or postponement shall be granted, without examining them, except for special reasons to be recorded in writing:
Provided also that no adjournment shall be granted for the purpose only of enabling the accused Page 33 of 48 person to show cause against the sentence proposed to be imposed on him.
Provided also that--
(a) no adjournment shall be granted at the request of a party, except where the circumstances are beyond the control of that party;
(b) the fact that the pleader of a party is engaged in another Court, shall not be a ground for adjournment;
(c) where a witness is present in Court but a party or his pleader is not present or the party or his pleader though present in Court, is not ready to examine or cross-examine the witness, the Court may, if thinks fit, record the statement of the witness and pass such orders as it thinks fit dispensing with the examination-in-chief or cross-examination of the witness, as the case may be.
Explanation 1.--If sufficient evidence has been obtained to raise a suspicion that the accused may have committed an offence, and it appears likely that further evidence may be obtained by a remand, this is a reasonable cause for a remand.
Explanation 2.--The terms on which an adjournment or postponement may be granted include, in appropriate cases, the payment of costs by the prosecution or the accused."
23.1. A bare perusal of second proviso to sub-section (2) of Section 309 makes it aptly clear that when witnesses are in attendance, no adjournment or postponement shall be granted, Page 34 of 48 without examining them, except for special reasons to be recorded in writing.
23.2. Now, what does it mean by the words, "witnesses are in attendance"? In this regard, I am benefited from Rule 20(iv) of the High Court of Tripura Criminal Rules and Orders, 2021[here-in-after referred to High Court Rules, 2021]. 23.3. The relevant part of Rule 20(iv) of the High Court Rules, 2021 reads as under:
"20(iv). xx xx
xx xx.
If witnesses are in attendance no adjournment or postponement shall be granted, without examining them, except for special reasons to be recorded, in writing.(Section 309(2) Cr.PC.)."
23.4. So, High Court Rules, 2021 speaks in the same terms as in Section 309(2) of CrPC. The High Court Rules, 2021 is not found to be exhaustive as it does not explain the meaning of the phrase "witnesses are in attendance".
In this regard, Rule 21 of the High Court Rules, 2021 comes into play which reads as under:-
"21. These Rules shall be in addition to the existing Gauhati High Court Criminal Rules and Orders as applicable to the State of Tripura. However, in case of conflict or inconsistency in any of the provisions contained in these Rules, the provisions contained in "The High Court of Tripura Criminal Rules and Orders, 2021" shall prevail."Page 35 of 48
23.5. Here to find out the meaning of the expression, "the witnesses are in attendance", I have given a look to The Gauhati High Court Criminal Rules and Orders(for short, Gauhati High Court Rules).
Rule I under Chapter 1 of Part-A deals with record of the attendance of witnesses. It reads as under:-
"I. RECORD OF THE ATTENDANCE OF
WITNESSES-
1. In police cases the Asstt. Public Prosecutor or Addl. Public Prosecutor attached to the Court and in non- police cases the party concerned, shall deliver to the Bench Clerks, not later than 10 a.m. a list verified, dated and initiated by him, of the witnesses who upto 10 a.m. are in attendance of examination........ ........ ........ ........ ........ ........ ........" 23.6. A plain reading of the above passage crystallizes that in police cases(alike the case in hand), it is the Prosecutor, who shall file an application before, not later than 10 am, and hand it over to the Bench Clerk indicating the witnesses who are in attendance for examination.
In the instant case, we find that the learned Special Public Prosecutor has not filed any such application indicating the attendance of prosecution witnesses for examination. If it is recorded otherwise, in my opinion, whether witnesses are in attendance or present before the Court will be garnered from the application or from the memo of appearance of the Page 36 of 48 witnesses, which will be filed by the prosecutor himself and unless and until such application/memo of appearance, indicating the names of the witnesses attending before the Court for examination is placed/filed, that cannot be said that witnesses are present or they are in attendance before the Court for examination.
In the light of above discussions, I find force in the submission of Mr. Datta, learned P.P. that learned senior counsel, Mr. Biswas has himself interpreted the second proviso to sub-section (2) of Section 309 of CrPC.
23.7. Here, learned Special Public Prosecutor filed an application seeking adjournment of the case on 17.12.2021 stating the grounds in the petition itself. Therefore, in view of Rule I under Chapter 1 of Part-A of the Gauhati High Court Rules, in my considered view, it cannot be said that prosecution witness(PW10) was in attendance before the Court of learned Addl. Sessions Judge on 17.12.2021. Learned Sessions Judge, West Tripura, Agartala has not taken note of the Gauhati High Court Rules, relating herein concerning the application of Section 309 of CrPC.
24. In this context, I deem it imperative to mention that omission of mentioning the name of a witness from the list shall not be a bar for his/her examination if such witness is otherwise produced before the Court. Both the learned Sessions Judge and Page 37 of 48 learned Addl. Sessions Judge have only considered the grounds stated in the petition in respect of the contention that Lawyers busy in another Court shall not be a ground for adjournment, but, both of them have failed to take into account that main ground as urged by the learned Special Public Prosecutor is that he had a conversation with PW10 when this witness expressed her inability to attend the Court for her examination on that particular day. In my considered view, learned Addl. Sessions Judge before recording her evidence ought to have verified the matter with the learned Special Public Prosecutor, without making any such remarks that the adjournment petition filed by the prosecutor was "without any basis and not at all desirable". 24.1. In the opinion of this Court, these remarks are derogatory in nature concerning the professional conduct of an advocate. Before making such remarks and more so, putting it on the record, the learned Addl. Sessions Judge should have verified the contents of the petition with PW10 and also with the Special Public Prosecutor.
25. Worst is the next episode when learned Special Public Prosecutor has filed an application before the Court below to expunge the remarks "baseless and undesirable" as found place in the order of learned trial Court. Learned Addl. Sessions Judge on receipt of said application held that the conduct of learned Special Public Prosecutor tantamount to showing Page 38 of 48 disrespect towards the Court and rejected the application. Learned Addl. Sessions Judge did not stop there. As I said earlier, he issued notice upon (i) The State of Tripura (being represented by the Secretary, Law Department, Government of Tripura), (ii) Ld. Senior Advocate Mr. Samrat Kar Bhowmik and
(iii) Ld. Advocate Mr. Anirban Bhattacharjee, to show cause within two weeks as to why the petition filed by the prosecution dated 20.12.2021 for expunction of remarks would not be referred to the High Court of Tripura for drawing contempt proceedings against them.
Here, firstly, I am at a loss to understand how the submission of learned Special Public Prosecutor is disrespectful towards the Court. In a petition for expunction of remarks, the petitioner must justify that what remarks and aspersions were made by the Court, and that actually those remarks have no basis and that such type of remarks are undesirable to the Special Public Prosecutor without verification of the same with the concerned witness. Secondly, I do not find any reason as to why the show-cause notice was issued upon the State of Tripura, represented by the Secretary, Law Department, Government of Tripura.
26. Under the aforesaid background and circumstances, the question is whether the apprehension of the State is Page 39 of 48 reasonable for this Court to direct transfer of the case records to any other Court of competent jurisdiction.
Justice must not only be done but must seem to have been done. Since the order dated 20.01.2021 was virtually confirmed by the learned Sessions Judge by order dated 11.01.2022 in case No.Crl.Misc.13 of 2021, the State has approached this Court to interfere with the orders passed by the learned Sessions Judge, West Tripura, Agartala as well as the learned Addl. Sessions Judge, Court No.2, West Tripura, Agartala.
27. At the opening part of hearing of the present petition before this Court, Mr. P.K. Biswas, learned senior counsel has fairly submitted that the order dated 20.12.2021 passed by the learned Addl. Sessions Judge, Court No.2 relating to issuance of show-cause notice upon the Secretary, Law Department, Government of Tripura, learned Special Public Prosecutor, Mr. Samrat Kar Bhowmik and learned advocate on record, Mr. Anirban Bhattacharjee, may be interfered with. Accordingly, this portion of the order had been set aside by this Court, but, what is gathered from such fair submission of learned senior counsel, Mr. Biswas is that he also realized that the order relating to issuance of show-cause notice upon the Prosecutors and Secretary, Law Department was uncalled for. Noticeably, the present petition has been filed by the State of Tripura, Page 40 of 48 represented by the Secretary, Home Department, Government of Tripura, stating that the State has no faith upon the Court of learned Addl. Sessions Judge, Court No.2, West Tripura, Agartala.
28. The present proceeding relates to the trial of a criminal case where a young bank officer was brutally murdered allegedly by the accused persons, respondents herein in the heart of the city at night. Considering the status of the accused persons in the society, on the prayer made by the prosecution, trial is going on keeping the accused persons in custody. The offence has created a remarkable sensation in the minds of the citizens of the State. As I discussed elaborately in the preceding paragraphs about the background and the circumstances of the case, compelling the State to file the present petition, I am of the opinion that the observations quoted and stated here-in- above as made by the learned Additional Sessions Judge, West Tripura, Agartala, Court No.2(Sri Govinda Das), simply had no relevance to the subject matter of the case. There is no need to make any remark or comment upon the conduct of learned counsels; making it an issue which was a non-issue, and which is certainly not desirable for a Court conducting a trial relating to a case of serious nature. As I said earlier, judicial decorum requires its dispassionate approach.
Page 41 of 48
29. Hon'ble Supreme Court in the case of Tessta Setalvad(supra) reminded the Courts that uncalled for observations on the professional competence or conduct of a counsel, and any person or authority or harsh or disparaging remarks are not to be made, unless absolutely required or warranted for deciding the case.
In my opinion, there is no need or justification for any un-desirable remark, which amounts to aspersions to the conduct of an advocate.
30. As in the instant case, the learned Addl. Sessions Judge before making such aspersions should have first verified whether the contentions made in the petition and submissions advanced by the learned counsel had any cogent foundation. Court below in exceptional circumstances could have examined PW10 in absence of learned Special Public Prosecutor. It is the prerogative of the learned Court, but, making uncalled for observation and remarks, irrelevant to the subject of trial and that too without verification, undoubtedly, created an unhealthy environment in the continuation of the trial. That apart, there is absolutely no element of justification to issue show-cause notice upon the Secretary, Law Department.
According to me, these are the above factors which have spoiled the conducive atmosphere for a fair trial before the Court of learned Addl. Sessions Judge, which ultimately leads Page 42 of 48 the State, the petitioner herein to draw a reasonable apprehension that absolute justice would not be done to the State by the Court of learned Addl. Sessions Judge, Court No.2, West Tripura, Agartala, and in this circumstance the interests of justice demands that the case should be transferred from the Court of learned Addl. Sessions Judge, West Tripura, Agartala, Court No.2 to any other Court of competent jurisdiction.
31. I have taken into consideration the submission of the learned senior counsel appearing on behalf of the respondents that if the case is transferred from the Court of learned Addl. Sessions Judge, Court No.2(Sri Gobinda Das), then, it will be demoralizing to the Court since recording of evidence is almost completed. In this context, it has also to be borne in mind that order to issue show-cause notice as stated above appears to be so unexpected and shocking that it could in all likelihood give rise to a reasonable apprehension in the mind of the petitioner-State which cannot be lightly brushed aside. Here, I must unhesitantly add that this Court has full faith and confidence upon the learned trial Judge and I am not at least suggesting that the Presiding Judge is incapable of adopting a fair approach, but then the question is not whether the Judge is incapable of conducting a fair trial or unable to rise above the earlier observations made by him. The question is whether the apprehension of the petitioner-State is reasonable to be Page 43 of 48 considered by this Court to direct a transfer for completion of trial in a conducive atmosphere. I re-iterate that justice is not only to be done but it must be shown to be done. In this situation, as observed by the Apex Court in Kanaklata cited supra, "A lurking suspicion in the mind of the complainant will leave him with a brooding sense of having suffered injustice not because he had no case, but because the Presiding Officer had a preconceived notion about it", it will be correct approach for this Court to adopt similar analogy and accordingly, I am of the opinion, that the present case is of the nature where the learned Sessions Court ought to have directed a transfer. Since the learned Sessions Court was not inclined to do so, I have no other alternative but to interfere and direct transfer of the case to another Court of competent jurisdiction.
32. Now, coming to the issue of expunction of remarks, I have already viewed that uncalled for observations and disparaging remarks on the professional conduct of a counsel should not be made without strong foundation for the same and that too after giving him a reasonable opportunity to defend or explain.
In my opinion, the tenor of remarks made by learned Addl. Sessions Judge, Court No.2, Agartala in his order dated 20.12.2021 appears to be unmerited. Recently, the Hon'ble Supreme Court in the case of Neeraj Garg vs. Sarita Page 44 of 48 Rani & Ors. reported in (2021) 9 SCC 92, while disapproving such offending remarks has referred its earlier decisions on the subject thus: [SCC pp 96, 97, 98, paras 9, 10, 11, 12, 13 and 14].
"9. ......... ......... ......... ......... ......... ......... ......... ......... State of U.P. v. Mohd. Naim [State of U.P. v. Mohd. Naim, AIR 1964 SC 703 : (1964) 1 Cri LJ 549] where S.K. Das, J. laid down the following tests to be applied while dealing with the question of expunction of disparaging remarks against a person whose conduct comes in for consideration before a court of law. Those tests are : (AIR p. 707, para 10)
10. ... (a) Whether the party whose conduct is in question is before the court or has an opportunity of explaining or defending himself;
(b) Whether there is evidence on record bearing on that conduct justifying the remarks; and
(c) Whether it is necessary for the decision of the case, as an integral part thereof, to animadvert on that conduct.
10. In Alok Kumar Roy v. S.N. Sarma [Alok Kumar Roy v. S.N. Sarma, (1968) 1 SCR 813 : AIR 1968 SC 453] , in the opinion written by C.K. Wanchoo, J. for a five-Judge Bench, this Court had emphasised that even in cases of justified criticism, the language employed must be of utmost restraint. The use of carping language to disapprove of the conduct of the counsel would not be an act of sobriety, moderation or restraint.
11. The judgment of this Court in A.M. Mathur v. Pramod Kumar Gupta [A.M. Mathur v. Pramod Kumar Gupta, (1990) 2 SCC 533] , delivered by K. Jagannatha Shetty, J., elaborates on the need to avoid even the appearance of bitterness. The Court observed that : (SCC pp. 538-39, para 13) "13. ... The duty of restraint, this humility of function should be constant theme of our Judges. This quality in decision- Page 45 of 48 making is as much necessary for Judges to command respect as to protect the independence of the judiciary. Judicial restraint in this regard might be better called judicial respect, that is, respect by the judiciary."
12. The importance of avoiding unsavoury remarks in judicial orders as per established norms of judicial propriety has also been succinctly noted in Abani Kanta Ray v. State of Orissa [Abani Kanta Ray v. State of Orissa, 1995 Supp (4) SCC 169 :
1996 SCC (L&S) 175] by J.S. Verma, J. in the following words :
(SCC p. 178, para 15) "15. ... Use of intemperate language or making disparaging remarks against anyone unless that be the requirement for deciding the case, is inconsistent with judicial behaviour. Written words in judicial orders are for permanent record which make it even more necessary to practice self-restraint in exercise of judicial power while making written orders."
13. The principles laid down as above, have been quoted with approval and applied by this Court in several subsequent judgments, including for a three-Judge Bench in Samya Sett v. Shambhu Sarkar [Samya Sett v. Shambhu Sarkar, (2005) 6 SCC 767 : 2005 SCC (Cri) 1483] . In this case C.K. Thakker, J. writing for the Court opined that the adverse remarks recorded were neither necessary for deciding the controversy raised before the Court nor an integral part of the judgment, and accordingly directed deletion of those remarks.
14. The proposition of law laid down by S.K. Das, J. on behalf of the four-Judge Bench in Mohd. Naim [State of U.P. v. Mohd. Naim, AIR 1964 SC 703 : (1964) 1 Cri LJ 549] on recording of adverse remarks has been approved in a catena of decisions since 1964. It was also cited by the Supreme Court of Sri Lanka in A.N. Perera v. D.L.H. Perera [A.N. Perera v. D.L.H. Perera, 1982 SCC OnLine SL SC 20] where Abdul Kadir, J. speaking for the Bench approved of the tests laid down by this Court and concluded Page 46 of 48 that the Judge's comments against the petitioner in that case were thoroughly unwarranted under each of those tests."
With great respect and approval of the principles enunciated in the aforesaid judgments, the Hon'ble Supreme Court in the case cited supra has held that:
"15. While it is of fundamental importance in the realm of administration of justice to allow the Judges to discharge their functions freely and fearlessly and without interference by anyone, it is equally important for the Judges to be exercising restraint and avoid unnecessary remarks on the conduct of the counsel which may have no bearing on the adjudication of the dispute before the court." In the instant case, I find that the learned Addl. Sessions Judge, Court No.2 could have easily avoided unnecessary remarks as those issues are not related to the subject matter of trial. The remarks so recorded have cast aspersions on the professional integrity and hard earned reputation of the learned counsels, as I said earlier. The grounds for filing the application for adjournment have been stated in the petition itself that he had a discussion with his witness(PW10), who is a member of the judiciary discharging her functions as Judicial Magistrate, First Class. If the said statement was not believed by learned Addl. Sessions Judge, then, he could easily verify and enquire the matter about the truthfulness and genuinity of such statements and the submissions made by the learned counsels, but without doing so he issued show-cause Page 47 of 48 notice upon the learned counsels and rejected the application for expunction of remarks filed by the learned Special Public Prosecutor. The requisite degree of restraint and sobriety expected from a judicial officer, in such situation, is also found missing when those offending observations were further confirmed with the rejection of the petition filed by the learned Special Public Prosecutor to expunge the remarks. In this situation, in my considered view, the remarks made by learned Addl. Sessions Judge which were further affirmed by learned Sessions Judge are required to be expunged, otherwise, the said remarks recorded against the learned counsels will not only demean them amongst their professional colleagues, but may also adversely impact their professional careers, which will be prejudicial and unjust. The said observation and remarks as stated in the preceding paragraphs were also unnecessary for proper adjudication of the Sessions case before the Court. In the circumstances, I hold that the offending remarks should be recalled to avoid any future harm to the reputation of the learned counsels or their work as members of the Bar.
Accordingly, the remarks made by learned Addl. Sessions Judge, Court No.2, West Tripura, Agartala, in the order-sheet dated 17.12.2021 that "The contention so made in the application in regards to PW10 is found to be without any basis and not at all desirable" are interfered with and the same Page 48 of 48 shall stand expunged and deleted from the order-sheet dated 17.12.2021, and consequently must be treated as having never existed or being part of the concerned order-sheet.
33. The order dated 11.01.2022 passed by the learned Sessions Judge, West Tripura, Agartala in case No.Crl.Misc.13 of 2021 stands set aside and quashed. The Sessions case No.ST(T-
1) 103 of 2019, now pending before the Court of learned Addl. Sessions Judge(Shri Gobinda Das), Court No.2, West Tripura, Agartala, is directed to be transferred to the Court of learned Sessions Judge, West Tripura, Agartala who may himself carry out the trial or transfer the said case to any other Court within his jurisdiction.
34. With the aforesaid observations and direction, the instant petition stands allowed.
Send down the LCRs forthwith.
JUDGE