Patna High Court
Ramnandan Prasad vs State Of Bihar And Ors. on 3 August, 1956
Equivalent citations: 1957CRILJ223, AIR 1957 PATNA 67
ORDER Sahai, J.
1. This is an application by the complainant for transfer of Sessions Case No. 76 of 1956 which was being tried by Mr. N. Ahmad, Sessions Judge of Gaya.
2. The trial was fixed for 16-1-1956 but the Assistant Public Prosecutor in charge of the prosecution of the case filed an application on that date to the effect that the case should be adjourned because Shree Devasharan Singh, advocate, who was the principal witness in the case, was not available for evidence before 20-1-1956. The learned Sessions Judge then adjourned the trial to 6-2-1956 when the trial actually commenced, several witnesses have already been examined on behalf of the prosecution but some more witnesses remain to be examined.
3. I may mention that the complainant is a servant of Shree Devasharan Singh and the offences with which the accused persons have been charged are said to have been committed against Shree Devasharan Singh.
4. Appearing on behalf of the petitioner, Mr. Prem Lall has not urged all the grounds mentioned in the application for transfer but has confined himself to lour grounds for transfer. The first ground is that the petitioner entertains a reasonable apprehension that he will not have fair trial in the Sessions Judge's Court because the Sessions Judge did not summon a witness named Baliram Singh nor did he issue a warrant of arrest against him in spite of repeated prayers on behalf of the prosecution for the issue of process against that witness.
It appears that Baliram Singh was examined as a prosecution witness in the committing Magistrate's Court. By mistake, however, he does not appear to have been summoned to attend the Sessions Judge's Court to give his evidence; On 8-2-1956, the Asst. Public Prosecutor filed a petition, praying that five witnesses whose evidence was, according to him, very essential should be summoned. The defence lawyer desired to know what purpose the evidence of the said witnesses would serve. The Assistant Public Prosecutor, therefore, filed another petition, setting out the purposes for which the prayer for summoning those witnesses was made.
On 9-2-1956, the learned Sessions Judge heard the parties in connection with the petition and ordered that dasti summonses should be issued to the witnesses named by the Assistant Public prosecutor at the risk of the prosecution. It seems that one of those witnesses was Baliram Singh. On 14-2-1956, the Assistant Public Prosecutor filed a petition, praying that a warrant of arrest be issued against Baliram Singh; who had not turned up in spite of service oi' dasti summons. The Sessions Judge heard the petitioner on the 15th. February and passed an order as follows :
"The A. P. P. submits that he will be able to procure the attendance of the witness (Baliram Singh) on 18-2-1956. Since I shall not be here on that date, I fix 20-2-56 for evidence of that witness."
On the 20th February, Baliram was present in Court but his evidence could not be taken because the Sessions Judge was away. On the 21st February, the A. P. P. filed a petition, in which he stated that Baliram Singh was present on the 20th Feb-ruary but had gone away after telling the Assistant Public Prosecutor that he was an accused in a case at Aurangabad and had to attend the Court there on the 21st and 22nd February though the Assistant Public Prosecutor told him to remain present at Gaya, at least, on the 21st February. The prayer which was made in this petition was that a bailable warrant of arrest should be issued against Baliram Singh. As the Sessions Judge was absent even on the 21st February, the petition was ordered. to be put up before him for orders.
On the 22nd February, the learned Sessions Judge heard the Assistant Public Prosecutor and the defence lawyer and passed the following order :
"No case for issue of warrant of arrest has been made out. Issue only dasti summons to the. Wit ness fixing 25-2-56 for his evidence, entirely at the risk of the prosection....."
On the 25th February, the Assistant Public Prose-
tor filed a petition, stating that the complainant's man who was entrusted with the work of saving the summons upon Baliram Singh could not serve it upon him. He prayed for the issue of summons through Court or warrant of arrest against Baliram Singh. He, however, stated further in the same petition tnat he had sent a requisition to the District Magistrate for securing the attendance of the Witness.
Thereupon, the learned Sessions Judge observed in his order that the complainant's man should have taken care to get the report relating to non-service of summons attested by the chaukidar or by some villager but the report had not been attested by any person. As he could not find out the result of the Assistant Public Prosecutor's requi-sition to the District Magistrate, he ordered the case to be put up on the 27th February. On the 27th February, the Asst. Public Prosecutor filed a petition, praying for issue of summons through Court or a bailable warrant of arrest for the attend-ance of Baliram Singh. On the other hand, the complainant filed a petition under Section 526(8) of the Code of Criminal Procedure through a private lawyer, praying that the case be adjourned so as to enable the complainant to move the High Court for transfer of the ease.
5. The facts which I have given in detail above show clearly that the Sessions Judge went on issuing dasti summonses at the risk of the prosecution in the hope that the Assistant Public. Prosecutor would be able to procure his attendance. It is Well known that service of notice through ordinary channels of the Court takes a rather long time. In Ms order dated 27-3-1956, the learned Sessions Judge has stated that he issued dasti summonses for the attendance of Baliram Singh in order to expedite the trial. This is perfectly reasonable.
The learned Sessions Judge has further mentioned in the same order that he did not issue a warrant of arrest because no case has been made out for issue of a warrant of arrest on any date. It was only when the Assistant Public Prosecutor's requisition to the District Magistrate failed and the attendance of the witness was not procured that the Sessions Judge by his order dated the 27th February, issued a summons to the witness through Court. I do not think that any of the orders passed by the learned Sessions Judge relating to the issue of process to Baliram Singh is unreasonable or unfair. I feel also satisfied that the petitioner cannot reasonably entertain any apprehension on account of those orders that he will not have fair trial in the Court of the Sessions Judge.
6. The second ground which Mr. Prem Lall has urged is that the learned Sessions Judge made two observations which raised an apprehension in the petitioner's mind. . It is alleged that the Sessions Judge remarked when the case opened on the 6th February that it was a case of civil nature. The learned Sessions Judge has denied having made any such observation. If he had seriously made any such observation on the very day on which the trial opened, there is no reason why the petitioner would not have filed a petition stating that the Sessions Judge had made such an observation. He has not even mentioned in his petition under Secttion 526(8) dated the 27th February that the learned Sessions Judge had made such an observation.
I am, therefore, unable to hold that any observation of the kind was made by the learned Sessions Judge. It was on the 11th February that the learned Judge is alleged to have made the other observation. The allegation is that, when some witnesses submitted their bill on that date, the Sessions Judge said :
"Why should the State be burdened with the cost of the witnesses examined in this case and the tax payer be burdened with the cost of this litiga- tion?"
It is significant that this allegation was made for the first time in a petition under Section 526(1-A) filed by the petitioner on the 6th March 1956. There seems to be no good reason why the petitioner did not bring on the record earlier that the Sesions Judge had made such a remark. In view of the fact that the allegation was made after such a long. time, I am not prepared to accept it.
7. The third ground which Mr. Prem Lall has urged is that it was not open to the Sessions Judge to refuse to adjourn the case when an application, under Section 526(8) was filed before him on the 27th April and still he rejected that petition. His contention is that this is sufficient ground by itself for transfer of the case from the learned Sessions Judge's Court. In support of this contention, he has drawn my attention to the case of Baliram Kashinath v. Mt. Marubai, AIR, 1936 Nag 233 (A). In that case, a Magistrate refused to adjourn a case when an application under Sub-section (8) of Section 62S was filed in his Court.
Grille J. allowed an application for transfer of that case from the Magistrate's file on the only ground that the refusal by the Magistrate to adjourn the case was sufficient to give reasonable ground to the accused person for an apprehension that he would not have fair trial. Appearing for the accused persons, who are opposite second party before me, Mrs. Dharma Shila Lal has drawn my attention to the case of Richhpal v. State, AIR 1954 All 69 (B) and the case of Adeyya v. Apparao, AIR 1956 Andhra 104 (C).
In both these cases, it was held that a refusal by a Magistrate to adjourn a case when an application under Section 526(8) is filed before him cannot necessarily be held to be sufficient ground for transfer of the case from his file. The learned Judges refused to transfer the cases' as they came to the conclusion that the Magistrate had in each of the cases refused to grant adjournment on account of a bona fide mistake and not because of a deliberate or flagrant refusal to obey as law. In my opinion, each case has to be judged on its own facts. If an action or actions of a Magistrate or a Sessions Judge can raise a reasonable apprehension in the mind of any of the parties that he will not have fair trial, the case has to be transferred from his file. The decision must necessarily turn in all cases on the point as to whether the apprehension in the mind of the party concerned is or is not reasonable.
The position in this case before the learned Sessions Judge was that the private party complainant filed a petition under Section 526(8) and the learned Sessions Judge found that the ground mentioned by him in his petition was without substance. On the other hand, the Assistant-Public Prosecutor in charge of the prosecution opposed the. Application and applied for issue of process against Baliram Singh. In these circumstances, the learned Sessions Judge may well have felt doubtful about the legal position, that is, as to whether he was or was not bound to adjourn the case.
Although if appears from his order of the 27th February that he rejected the application under Section 526(8), he, in fact, adjourned the case from that date to the 6th March, thus giving the petitioner, at least, one week's time within which he could file an application for transfer of the case. In the circumstances of this case, I do not think that the learned Sessions Judge can be said to have deliberately or flagrantly disobeyed the provisions of Section 526(8) by refusing to adjourn the case because he did, in fact, adjourn on one ground or the other. There is, therefore, no substance in the third ground urged by Mr. Prem Lall. I may also mention that this ground has not been taken in the application for transfer filed in this Court.
8. The fourth ground which Mr. Prem Lall has urged is that the act of the Sessions Judge in refusing to adjourn the trial even after this Court had passed an order for its stay has raised a reasonable apprehension in the petitioner's mind. I do not think that this is quite correct. The stay order was passed by this Court on 19-3-1956. The petitioner filed a petition before the Sessions Juge on the 22nd March, praying for a week's time on the ground that an application for transfer of the case from his Court had already been admitted by the High Court. Subsequently, the petitioner filed another petition, stating that the High Court had Ordered stay of further proceedings.
As the Sessions Judge had not received a copy of tnis Court's order and the petitioner had not filed any such copy before him, he observed that tile complainant must support his allegation about stay of further proceedings by an affidavit and, for this purpose, he adjourned the case to the next day. On the 23rd March, the petitioner filed a petition supported by an affidavit to the effect that the High Court had ordered stay of further proceedings in this case. In view of this affidavit, the Sessions Judge adjourned the case to 9-4-1956. The order of stay of further proceedings was received by the Sessions Judge before the 9th April and, thereafter, ne did not take any further step in this case, I am unable to say that the learned Sessions Judge was wrong in insisting upon the petitioner supporting his allegation relating to the order of stay of further proceedings by an affidavit on a date when he had not received a copy of the order from tnis Court. In these circumstances, I do not find any merit even in this ground.
9. In the result, I do not think that this is a fit case for transfer. I, therefore, dismiss this application.