Punjab-Haryana High Court
Hoffmann Andreas vs Insp. Land Customs, Station Attari ... on 23 January, 2001
Author: S.S. Nijjar
Bench: S.S. Nijjar
JUDGMENT S.S. Nijjar, J.
1. This is an application under Section 407 CrP.C. seeking transfer of the case pending against the petitioner in the Court of Additional Sessions Judge (Special Judge) Shri A.S. Katari to any other court of competent jurisdiction in the State of Punjab/Chandigarh.
2. The petitioner was put on trial for having committed the offences under the NDPS Act, 1985. During the trial, the advocate of the petitioner had expired. The new counsel had made an application under Section 311 of the Code of Criminal Procedure for re-calling three witnesses for the purpose of further cross-examination. The application was dismissed by the trial Court and the petitioner was convicted. The appeal filed by the petitioner against the conviction and sentence was dismissed by this court. The conviction and sentence were confirmed. Consequently, the petitioner filed Criminal Appeal No. 815 of 1998 in the Supreme Court, which was allowed by order dated 16.9.1999. The conviction and sentence were set aside and the matter was remanded to the trial Court for re-trial. The Supreme Court while allowing the appeal noticed the ground urged by the new counsel for recalling the witnesses as follows :-
"His case was conducted by Mr. Kailash Sammuel. Advocate who had died during the pendency of the trial and that it has now transpired that Kailash Sammuel, Advocate was not keeping well and was under some mental pressure and he could not concentrate during the proceedings and as such, he failed to cross- examine the prosecution witnesses on material points."
3. The Supreme Court, whilst considering the ground, inter alia observed as follows:-
"When the new counsel took up the matter he would certainly be under the disadvantage that he could not ascertain from the erstwhile counsel as to the scheme of the defence strategy which the predeceased advocate had in mind or as to why he had not put further questions on certain aspects. In such circumstances, if the new counsel thought to have the material witnesses further examined the court could adopt latitude and a liberal view in the interest of justice, particularly when the court has unbridled powers in the matter as enshrined in section 311 of the Code. After all the trial is basically for the prisoners and courts would afford the opportunity to them in the fairest manner possible."
4. Thereafter, the Supreme Court gave the following directions :-
"1. The Court shall summon PW-1, PW-2 and PW-3 to be cross-examined again on behalf of the accused.
2. The evidence already brought on record will remain as part of the evidence in the case. After the defence counsel availing himself of the opportunity to further examine the three witnesses, if prosecution wants to adduce further evidence, it is open to the court to gram permission for the same. Accused shall then be called upon to enter on his defence.
3. After collecting such evidence, if any adduced by the accused, the trial Judge shall dis-pose of the case afresh in accordance with law and untrammelled by any findings or observations made in the judgment of the trial Court or that of the High Court.
We make it clear that the accused shall remain in custody till the disposal of the case. It is needless to say that the trial Judge shall recall the witnesses at the earliest, so that, this old case must be disposed of as expeditiously as possible and on a priority basis."
5. According to the petitioner, the aforesaid directions given by the Supreme Court were not being followed by the trial Court, namely, the Special Judge, Shri A.S. Katari. The petitioner, therefore, filed Crl. Misc. No. 26986 of 2000 seeking transfer of the case from the court of Shri A.S. Katari to any oilier Additional Sessions Judge (Special Judge) in any district within Punjab. During the pendency of the petition, the case of the petitioner had been transferred to the Court of Shri K..C. Puri, Additional Sessions Judge. Hence, the petition was disposed of without considering the prayer of transfer. However, certain directions were given to the trial Court which are as under :-
"In view of the above, the learned Additional Sessions Judge Shri K.C. Puri is now directed to permit Mr. Dawar, Counsel for the petitioner, to further cross-examine the witnesses that may be recalled on one or two particular dates. Mr. Dawar at this stage states that the matter is already fixed for 14th of September, 2000. The prosecution is, therefore, directed to make available PW-1, PW-2 and PW-3 for further cross-examination by Mr. Dawar on 14th September, 2000. If for any reasons, further cross-objection is not completed on 14th of September, 2000, the same be continued on 15th September, 2000 and if necessary on 16th September, 2000. It is no longer necessary to give any direction as to the mode of cross-examination as allegations had been made against the Presiding Officer from whose court the matter has already been transferred. Suffice it to say, the petitioner is entitled to cross- examine the witnesses in the manner to be determined by the counsel for the petitioner. It has already been observed by the Supreme Court that after all the trial is basically for the prisoners and courts would afford the opportunity to them in the fairest manner possible.
In view of the above, the trial Court shall permit Mr. Dawar to cross-examine the witnesses in the manner he deems fit in accordance with law.
With the above observations, the petition is disposed of. Order dasti."
6. The present petition for transfer has been necessitated by the fact the case has been again transferred to the previous trial Court i.e. Shri A.S. Katari, Additional Sessions Judge (Special Judge). The earlier application for transfer has been renewed as the prayer for transfer was not considered since the case had already been transferred to the Court of learned Additional Sessions Judge Shri K.C. Puri. An affidavit has been filed in support of the averments made in the petition. In this, it is stated that the petitioner is a German National. He has been in judicial custody during the pendency of the trial. The transfer is sought on anumber of grounds which were also the subject-matter of Crl. Misc. No. 26986 of 2000. It is stated that the petitioner has a reasonably apprehension that a fair and impartial trial cannot be held in the Court of Shri A.S. Katari, Additional Sessions Judge (Special Judge), Amritsar. It is further stated that the judge has been deviant, erring and offending. He has shown directionless control over the proceedings. The orders passed by the Supreme Court for deciding the cases on a priority basis, have been totally ignored. According to the petitioner, till the month of December, 1999 the witnesses were not even summoned. Thereafter, the Presiding Officer was on leave for a long period. No proceedings could, therefore, take place on 14.12.1999, 5.1.2000, 18.1.2000, 3.2.2000, 23.2.2000 and 24.2.2000. The witnesses were present for the first time on 14.3.2000. The cross-examination of PWs commenced only on 19.4.20000. It is also the case of the petitioner that instead of the case being shown very high on the daily cause list, it was usually shown towards the bottom of the cause list. Specific instances are given as to how the matter was always kept at the bottom of the cause list. The case is being tried in a routine manner and not on a priority basis. Apart from the undue delay being caused by the casual attitude adopted by the trial Court, it is stated that the cross-examination was not permitted to be conducted in accordance with law. The petitioner was constrained to move an application on 3.2.2000 for day to day hearing in the case. It is also stated that PW-2 was not permitted to be cross-examined in accordance with law. The petitioner was directed to cross-examine the witnesses in question and answer form. It is also stated that all questions pertaining to the sequence of events and the procedure adopted by the police were disallowed by the trial Court as being irrelevant. Furthermore, the questions as to whether or not Section 42 of the NDPS Act had been compiled with, have been disallowed on the ground that these questions are purely legal. On 18.5.2000, the petitioner was also constrained to move an application seeking permission to recall PW-2 for effective cross-examination in accordance with the observations of the Supreme Court. It is further the case of the petitioner that the proceedings are continuing in the trial Court without the case property being produced by the prosecution. The petitioner was again constratained to move an application on 2.5.2000 seeking directions to the prosecution to produce the case property. Further application was moved on 18.5.2000 seeking a direction to PW3 to produce the original record of the Malkhana for the purposes of cross-examination.
7. Mr. Dawar has vehemently submitted that the petitioner had to submit application after application to the court for observing the normal rules for trials. He submits that the altitude of the Presiding Officer has been biased against the petitioner from the very beginning. Repeatedly, the court was asked to comply with the orders of the Supreme Court and to conclude the trial. Repeatedly, however, the case was always shown towards the fag-end of the list of cases to be taken up on that date. It is submitted that the explanation given in the reply filed by the respondent is hardly convincing. Merely because there are other cases pending in the court would not mean that the orders of the Supreme Court are not to be obeyed. The Supreme Court had categorically directed that the matter shall be disposed of as expeditiously as possible and on a priority basis.
8. Mr. Sharma, on the other hand, has pointed out that the petitioner himself is responsible for delaying the matter. The matter was usually kept towards the end of the list of order to accommodate the counsel for the petitioner, who is to arrive from Delhi.
9. I have considered the submissions of the learned Counsel and perused the entire record. I have also seen the comments sent by the Judicial Officer concerned. I find that the comments do not offer any satisfactory explanation for the delay of almost one year in disposal of the case. In view of Articles 141 and 144 of the Constitution of India, the orders and directions given by the Supreme Court are to be meticulously obeyed by the lower courts. Article 141 of the Constitution of India clearly states that the law declared by the Supreme Court shall be binding on all courts within the territory of India. Article 144 of the Constitution of India categorically directs that all authorities, civil and judicial, in the territory of India shall act in aid of the Supreme Court. Therefore, it was the bounden duty of the trial Court to conclude the trial of the petitioner on a priority basis. The matter could not have been decided in a routine manner. In the present case, it seems that no effort has been made to decide the matter on a priority basis. I am not satisfied with the explanation to the effect that the matter was kept at the fag-end of the list merely because the learned Counsel for the petitioner had to arrive from Delhi on all occasions. Mr. Dawar has placed on record the copies of the relevant extract of the register of the Hotel in which he had stayed during his attendance in the Court. A perusal of these copies shows that the counsel for the petitioner has taken necessary precautions to arrive one day prior to the date of hearing of the case. Thus, it would not be possible to hold that the counsel for the petitioner was not available from 10.00 O'Clock onwards on each and every date of hearing of the case. This kind of an attitude would, in my view, be sufficient to raise a reasonable apprehension in the mind of the accused to the effect that his case is not being decided with an unbiased mind. Mr. Dawar has also pointed out that inspite of the repeated directions issued by the Supreme Court, the petitioner had been brought to the Court on all occasions in handcuffs. On one occasion, the petitioner had complained to the Court that he had been dragged and roughed up in the court compound while he was being brought to the court in handcuffs by the police official concerned. The petitioner is not satisfied with the action which was taken by the Presiding Officer to bring the erring police official to book. Mr. Dawar has relied on a large number of judgments to demonstrate the settled principle of law which the court must keep in mind whilst ordering the transfer of the case. To avoid multiplicity, I shall make reference only to three of the decided cases. In the case of Safiq-uddin v. State, 1968 Crl.L.J. 1536, it has been held as under:
"In dealing with an application for transfer, the Court has to consider, not the actual existence of bias in the mind of the Presiding Judge against the applicant-, but his reasonable susceptibilities. One important object in Criminal trials is that Court should be careful that nothing happens during the proceedings which may engender its suspicion and distrust and the conduct of the Court should be such that feeling confidence in thi' administration of justice is promoted; such feeling (of) is essential to social order and security. Nothing indeed should be done by a Court which may be calculated to create in the mind of an accused person a justifiable apprehension that he would nol get an impartial trial."
10. Again in the case of Pran Nath Harbans Lal v. State, 1969 Crl.L.J. 551, it has been held as under :-
"It is of paramount importance that the parties arraigned before the Courts, and particularly criminal courts, should have implicit confidence and faith in theirjudicial impartiality. It is not enough that the Courts deal with the evidence and come to just and correct decisions. It is of equal, if not of greater, importance that justice must also be seen to be done, which from one point of view, means that the Courts should not do anything which may be suggestive of bias in their mind against any party, which is not judicially supportable on the material on the record. If circumstances exist which may reasonably justify an apprehension that the Magistrate is seemingly entertaining a bias or prejudice against the accused, even though on an impression which may not stand judicial scrutiny on the record, the Court would be justified to transfer the case in the larger interest of promoting confidence in judicial administration."
11. And then in the case of Om Parkash and others v. State of Haryana and others, 1973(77) Suppt. C.L.R. 119, it has been held as under :-
"Justice should not only be done but it should also appear to have been done. The petitioners have made several allegations against the Presiding Officer and, therefore, it is expedient in the ends of justice and also in the interest of the officer that these cases should not be tried by him."
12. I am of the considering opinion that the apprehension of the petitioner cannot be said to be unreasonable. It needs hardly to be reiterated that it is of paramount importance that justice must not only be done, but it must be manifestly seen to be done. In the present case, the Supreme Court had directed an expeditious disposal of the case, yet the case has not been disposed of till today. On the other hand, during the short period when the case was transferred from the Court of Shri A.S. Katari to Shri K.C. Puri, the trial had been virtually concluded. It was only due to administrative circumstances that the matter has again been posted before Shri A.S. Katari. A perusal of the comments sent by the Shri A.S. Katari shows that no details are given of the follow-up action against the police official who had produced the petitioner in Court of handcuffs. Time and again, the Supreme Court has observed that except under very special cases, the prisoners should be transported to court from the jail without the handcuffs. In the case of Citizen for Democracy through its President v. Slate of Assam and others, AIR 1996 Supreme Court 2193, it was observed as follows :-
"Kuldip Singh, J.:- "We clearly declare and it shall be obeyed from the Inspector General of Police and Inspector General of Prisons to the escort constable and to jail warder -that the rule, regarding a prisoner in transit between prison house and Court house, is freedom from handcuffs and the exception, under conditions of judicial supervision we have indicated earlier will be restraints with irons to be justified before or after. We mandate the judicial officer before whom the prisoner is produced to interrogate the; prisoner, as a rule, whether he has been subjected to handcuffs or other "irons" treatment and, if he has been, the official concerned shall be asked to explain the action forthwith in the light of this judgment." Ordained this court - speaking through V.R. Krishna Iyer. J. - In Prem Shankar Shuka v. Delhi Administration, 1980(3) SCR 855 : AIR 1980 SC 1535.
2. In Sunil Batra v. Delhi Administration, 1979(1) SCR 392 : AIR 1978 SC 1675, this Court pronounced that under-trials shall be deemed to be in custody, but not undergoing punitive imprisonment. Fetters, especially bar fetters, shall be shunned as violative of human dignity, within and without prisons. The indiscriminate resort to handcuffs when accused persons are taken to and from court and the expedient of forcing irons on prison inmates are illegal and shall be stopped forthwith save in small category of cases where an under-trial has a credible tendency for violence and escape a humanely graduated degree of "iron" restraint is permissible if other disciplinary alternatives are unworkable, the burden of proof of the ground is on the custodian. And if he faiis, he will be liable in law. Reckless handcuffing and chaining in public degrades, puts to shame finer sensibilities and is a slur or our culture.
3. The law declared by this court in Shukla's case (supra) and Batra's case (supra) is a mandate under Articles 141 and 144 of the Constitution of India and all concerned are bound to obey the same. We are constrained to say that the guidelines laid down by this court and the directions issued repeatedly regarding handcuffing of under-trials and convicts are not being followed by the police, jail authorities and even by the subordinate judiciary. We make it clear that the law laid down by this court in the above said two judgments and the directions issued by us are binding on all concerned and any violation or circumvention shall attract the provisions of the Contempt of Courts Act apart from other penal consequences under law."
13. From the comments sent by the Addilional Sessions Judge Shri A.S. Katari. it can be seen that on 26.5.2000 a direction was issued to call ASI Amrik Singh. When ASI Amrik Singh could not be located, notice was issued to him to appear in Court on 12.7.2000 for receiving notice under the Contempt of Courts Act. His salary was also attached. Thereafter the comments are silent as to what action was taken against ASI Amrik Singh. The directions given by the Supreme Court are clear ihat the Judicial Officer before whom the prisoner is produced, is to interrogate the prisoner. If the prisoner states that he has been subjected to handcuffs or other "irons", the official concerned shall be asked to explain the action forthwith. It is nowhere stated that the police or the jail authorities had taken the permission of the trial Court to produce the petitioner in Court in handcuffs. In paragraph 17 of the judgment of the Supreme Court it has held as follows :-
"17. Where the police or the jail authorities have well grounded basis for drawing a strong inference that a particular prisoner is likely to jump jail or break out of the custody then the said prisoner be produced before the Magistrate concerned and a prayer for permission to handcuff the prisoner be made before the said Magistrate. Save in rare cases of concrete proof regarding proneness of the prisoner to violence, his tendency to escape, he being so dangerous/desperate and the finding that no other practical way of forbidding escape is available, the Magistrate may grant permission to handcuff the prisoner."
14. I am of the considered opinion that the aforesaid directions of the Supreme Court have not been observed by the trial Court. In such circumstances, the apprehension of the petitioner cannot be said to be unreasonable.
15. Keeping the overall circumstances in view, I am of the considered opinion that it would be in the interest of justice if the matter is transfered to some other court of competent jurisdiction.
16. Consequently, the petition is allowed. The case is transferred to the Special Judge, Jalandhar who will decide the matter from the stage it has already reached, in other words, evidence already recorded and all other orders passed in the case shall form the part of the proceedings before the Special Judge. Jalandhar. The file of the case be transferred to Special Judge, Jalandhar who will issue necessary notices to the parties indicating the next date of hearing of the case.
17. Petition allowed.