Gauhati High Court
Prof. Maguni Charan Behra vs The State Of Arunachal Pradesh And Anr on 14 November, 2018
Author: Rumi Kumari Phukan
Bench: Rumi Kumari Phukan
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IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM
AND ARUNACHAL PRADESH)
Transfer Petition (Crl)No.37/2014
Prof. Maguni Charan Behra,
Son of late Ananta Behra
Present R/O S.E.Building
College Road, Khelmati
P.O- North Lakhimpur,
Pin- 787001,District Lakhimpur,
Assam, permanent resident of Vill-
Baikunthapur, PO- Bahudenpur,
District- Bhadrak, Odhisha,
Pin-756165:
.... Applicant/Petitioner
-Versus-
1.State of Arunachal Pradesh,
2.The Registrar, Rajiv Gandhi University
Rono Hills, Diomukh, Itanagar,
Arunachal Pradesh, Pin- 791112
3. Ishar Basar
4. Maya Pulu
5. Tabom Lolen
All C/o Registrar, Rajiv Gandhi University
Rono Hills, Diomukh, Itanagar,
Arunachal Pradesh
Opposite Parties
BEFORE
HON'BLE MRS. JUSTICE RUMI KUMARI PHUKAN
For the petitioner : Mr.A.K.Purkayastha, Advocate
For the State : Mr.N.N.B.Choudhury, Sr. Govt Advocate
Arunachal Pradesh.
For the informant : Mr. S.K.Deori, Standing Counsel Rajeev
Gandhi University.
Date of hearing : 7.11.2017
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Date of Judgment : 14.11.2017
JUDGMENT & ORDER (CAV)
1. The present Application U/S 407 CrPC has been filed for transfer of the
G.R.Case No.432/2013 pending before the Chief Judicial Magistrate, Papumpare at
Yupia from said Court to any other Court of Assam preferably to North Lakhimpur
District.
2. Heard Mr.A.K.Purkayastha, learned counsel for the accused petitioner, Mr. N.
N. B. Choudhury, learned Sr. Govt Advocate, appearing for the
State of Arunachal Pradesh and Mr. S.K.Deori, learned Standing Counsel Rajeev
Gandhi University.
3. The petitioner while working as a Director, Arunachal Institute of Tribal Service
(AITS) of Rajeev Gandhi University (RGU) as on 9.10.2013 complainant Miss Isha
Basar, a Ph.D. scholar of AITS, RGU along with two others viz. Ms. Maya Pulu, M.Phil,
RGU and Ms. Tobom Loilen, M.Phil RGU lodged a complaint before the Vice-Chancellor,
Rajiv Gandhi University, stating inter alia that on 7th October, 2013 at about 1.30 pm
Prof M.C.Behra called Ms. Isha Basar to his private quarter at RGU campus to give her
some study materials. When she reached his quarter there was no one else, then the
present petitioner molestated her to which she somehow escaped. When she recounted
the incident to other two research scholars named above, came to know that they have
also undergone similar experiences. They made a complaint before the authority
concerned of Rajeev Gandhi University and the same was forwarded to All Woman
Police Station, Itanagar which was registered as Itanagar P.S.Case No. 57 of 2013 U/S
354/34 IPC. On completion of the investigation Charge-sheet was laid against the
accused petitioner U/S 354/354(A)(1)(i)/342 IPC and the case came up for trial before
the learned CJM, Papumpare and after receipt of the summons from the learned CJM,
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Yupia he appeared before the Court as on 12.8.2014 and obtained regular bail but as
and when he went out from the Court premises and about to proceed to Naharlagun
then a group of persons who were seen in the Court premises suddenly surround and
assaulted him and told him that on the next date he should admit the allegation levelled
against him and also told him to tender his resignation from the post otherwise they will
take stern action. Again on 9.10.2014 when he proceeded to Naharlagun to meet his
counsel to know about the stages of the case and reached Naharlagun at about 11 a.m.
then he was compelled to get down from the bus by a group of people/students whom
he did not know ghareoed and assaulted him and asked him to straight go to the
University and tender resignation from his post and leave Arunachal Pradesh forever
otherwise they will kill him and they left the place. After receiving such threat from said
group of persons he hired a vehicle and left for North Lakhimpur out of fear without
meeting his counsel.
4. Apart from the said incident the petitioner has narrated some other incident
since after filing of the FIR against him. It is stated that on 9.10.2013 after filing of the
FIR the residential quarter of the petitioner was ransacked by an antisocial elements
comprising more than 100 people/students and caused extensive damage to the
property, apart from theft of valuable household articles and cash amount. But because
of his absence at the relevant period his life was spared. Even thereafter, when he
obtained interim bail from the Hon'ble Gauhati High Court he could not move freely in
his working place as well as other areas as he got constant threatening from said
antisocial groups, who protested against the Court decision of granting interim
protection and shouted slogans demanding his immediate expulsion from the service.
Most of the newspaper of Arunachal Pradesh published the incident. The complainant
side engaged five Advocates for objecting absolute anticipatory bail on the day of
hearing and about 200 students and antisocial groups gathered the outside Court
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campus of Gauhati High Court Itanagar bench to protest about the granting of bail for
which the Court has to pass its bail order in the chamber.
5. Even after granting of bail, on 13.11.2013 hundreds of Student led by Rajeev
Gandhi Students Union including some outsiders entered into his quarter and dragged
him to a car standing outside and forcefully pushed him into the Car and he was
dragged to a place of huge gathering and some students put shoe garland over his neck
and paraded him to the administrative building and burnt his effigy. Therefrom he was
taken to market complex and then to the office premises of the RGU and in presence of
Registrar and other officials he was subjected to all humiliation and despite information
to police neither the police nor the University Authority took any action towards his
safeguard. The said incident was reported in various media and newspaper dated
14.11.2014 (Annexure-G series).
6. After the said incident the University Authority asked him to arrange his own
protection and accordingly the petitioner with due permission of the University shifted
to North Lakhimpur on 18.11.2013 and since then he has been residing there.
According to the petitioner after receiving such threat from the various groups of
persons including the student organisation ransacking his house, scandalising him
publicly with no protection from any quarter, University's inability to protect him from
humiliation on 13.11.2013, threats and rag on media do not give a sense of security
and confidence to him to seek legal protection in Arunachal Pradesh. Finding no other
alternative he has preferred the present petition praying for transfer of the said case to
any other Court in Assam. He further contends that Rajeev Gandhi University Students
Union is a body under the Arunachal Pradesh Students Union and they are influential
body capable of turning things in its own direction. Further the alleged victim are all
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local tribes of the State of Arunachal Pradesh and therefore, there is every possibility of
being influence and in that case there might not be a fair and impartial trial of the case.
7. By filing an additional affidavit the petitioner submits that as per direction of this
Court the petitioner approached to the Superintendent of Police, Naharlagun on
8.2.2015 for giving him necessary adequate police protection and security in terms of
the aforesaid order dated 27.1.2015 but he has not been provided any protection to
enable him to appear before the learned CJM, Yupia and under the circumstances this
Court by its order dated 26.3.2015 has stayed the further proceeding.
8. The learned counsel for the petitioner Mr. Purkayastha has submitted at length
about the sorry state of affairs prevailing as against the present petitioner after filing of
the said case and same stated to be a threat to his life and liberty which may even deny
the fair trial and justice to the petitioner. Several paper cuttings as about the incidence
as referred above has been annexed with the petition and the same is not disputed.
The learned counsel for the State Mr. Choudhury as well as the learned standing
counsel for the Rajeev Gandhi University/Informant have simply denied the allegation of
the petitioner and submitted that there is no occasion to transfer the case, as the
petitioner has never filed any FIR to police nor any complaint to the trial Court
regarding the aforesaid incident. Apart from making verbal submission no any affidavit
has been sworn by the respondent authorities. The private respondents i.e. the three
complainants/victims did not turn up despite service of notice through paper publication (they are not found in the given address).
9. I have considered the submissions of learned counsel for both the parties. So far as the contention raised by the petitioner it appears that he has referred several instances about threat to his life and property as well as humiliation publicly by the groups of people as well as students of RGU but no any written complaint was filed before any authority, either to police or to Court. However, all the incidents that have 6 been referred into has been reported in the newspaper annexed. There being no any denial to such news items, the same can be looked into. Accordingly perusal of the news item dated 9.10.2013 at Arunachal Times reflect the reaction of all section of people including the Students Union. The news item reported in Arunachal Times on 15.11.2013 reflects the action of the student union who protested against granting of anticipatory bail to the accused petitioner. Further, news item dated 14.11.2013 again reflects that the student union of the RGU as well as different organisation demanded the termination of the accused petitioner from his service and also condemn the bail order passed by the Court along with the photograph of garlanding the petitioner with shoes. All these news items published after the incident relates to the petitioner. Reading of the news item reveals the aggressive conduct of the student union and other section of people who constantly demanded strict action against the accused, with a demand to the petitioner to leave the place coupled with the repeated threat to the petitioner to leave the place by admitting his guilt will certainly create fear to the life and liberty of the petitioner. At the time of public assault and shoes garlanding on publicly, there appears no any response from the respondent authorities towards safety of petitioner which is bounden duty of administration. The prayer for protection made by the petitioner on 8.2.2015 to the Superintendent of Police also yield no result and in the circumstances apprehension of the petitioner to face free and fair trial at the place of occurrence found to be proper. In view of prevailing state of affairs, none filing of FIR regarding the incident before the O/C concerned, itself cannot be construed as a falsity of plea of the petitioner to get the case transferred to another place.
10. A fair trial is a sine qua non of Article 21 of the Constitution which provides that- 21 Protection of life and personal liberty- no person shall be deprived of his life or personal liberty except according to the procedure established by law. Under the provision of Section 407 CrPC, the paramount consideration for directing transfer of a 7 case is to examine in the given circumstances what is expedient for ends of justice. No universal or hard and fast rule can be prescribed for deciding a transfer petition which has always to be decided on the basis of facts of each case. Relevant provision of section 407 may be quoted as under:
"407. Power of High Court to transfer cases and appeals.
(1) Whenever it is made to appear to the High Court-
(a) that a fair and impartial inquiry or trial cannot be had in any Criminal Court subordinate thereto, or
(b) that some question of law of unusual difficulty is likely to arise, or
(c) that an order under this section is required by any provision of this Code, or will tend to the general convenience of the parties or witnesses, or is expedient for the ends of justice, it may order-
(i) that any offence be inquired into or tried by any Court not qualified under sections 177 to 185 (both inclusive), but in other respects competent to inquire into or try such offence;
(ii) that any particular case or appeal, or class of cases or appeals, be transferred from a Criminal Court subordinate to its authority to any other such Criminal Court of equal or superior jurisdiction;
(iii) that any particular case be committed for trial to a Court of Session; or
(iv) that any particular case or appeal be transferred to and tried before itself. (2) The High Court may act either on the report of the lower Court, or on the application of a party interested, or on its own initiative: Provided that no application shall lie to the High Court for transferring a case from one Criminal Court to another Criminal Court in the same sessions division, unless an application for such transfer has been made to the Sessions Judge and rejected by him.
(3) Every application for an order under sub- section (1) shall be made by motion, which shall, except when the applicant is the Advocate- General of the State, be supported by affidavit or affirmation.
(4) When such application is made by an accused person, the High Court may direct him to execute a bond, with or without sureties, for the payment of any compensation which the High Court may award under sub- section (7). (5) Every accused person making such application shall give to the Public Prosecutor notice in writing of the application, together with copy of the grounds on which it is made; and no order shall be made on of the merits of 8 the application unless at least twenty- four hours have elapsed between the giving of such notice and the hearing of the application. (6) Where the application is for the transfer of a case or appeal from any subordinate Court, the High Court may, if it is satisfied that it is necessary so to do in the interests of justice, order that, pending the disposal of the application, the proceedings in the subordinate Court shall be stayed, on such terms as the High Court may think fit to impose: Provided that such stay shall not affect the subordinate Court' s power of remand under section 309. (7) Where an application for an order under sub- section (1) is dismissed, the High Court may, if it is of opinion that the application was frivolous or vexatious, order the applicant to pay by way of compensation to any person who has opposed the application such sum not exceeding one thousand rupees as it may consider proper in the circumstances of the case. (8) When the High Court orders under sub- section (1) that a case be transferred from any Court for trial before itself, it shall observe in such trial the same procedure which that Court would have observed if the case had not been so transferred.
(9) Nothing in this section shall be deemed to affect any order of Government under section 197.
11. A criminal trial, which may result in depriving a person of not only of his personal liberty but also his life has to be unbiased, and without any prejudice for or against the accused. An impartial and uninfluenced trial is the fundamental requirement of a fair trial. If a criminal trial is not free and fair, the criminal justice system would be at stake and erode the confidence of common people and it is in this context, when it is shown that trial is likely to be seriously undermined, the Court can consider the prayer for transfer of a case to one Court to another, to meet the ends of justice.
12. In Menaka Sanjay Gandhi -vs- Ranijetmalini, reported in (1979) 4 SCC 167, speaking for a Bench of three learned Judges of the Supreme Court, Hon'ble Justice V. R. Krishna Iyer said-
" 2. Assurance of a fair trial is the first imperative of dispensation of justice and central criteria for the Court to consider when a motion for 9 transfer is made is not the hypersensitivity or related convenience of a party or easy availability of legal services or like mini grievances. Something more is substantial, more compelling, more imperilling, from the point of view public justice and its attendant environment is necessitous if the court is to exercise its power of transfer. This is the cardinal principle although the circumstances may be myriad and vary from case to case. We have to test the petitioner's grounds on this touchstone bearing in mind the rule that normally the complainant has the right to choose any court having jurisdiction and the accused cannot dictate where the case against him should be tried. Even so, the process of justice should not harass the parties and from that angel the court may weigh the circumstances."
4. A more serious ground which disturbs us in more ways than one is the alleged absence of congenial atmosphere for a fair and impartial trial. It is becoming a frequent phenomenon in our country that Court proceedings are being disturbed by rude hoodlums and unruly crowds, jostling or cheering and disrupting the judicial hearing with menaces, noises and worse. This tendency of thoughts and street roughs to violate the serenity of the Court is obstructive of the course of justice and must surely be stamped out. Likewise, the safety of the person of an accused or complaint is an essential condition for participation in a trial and where that is put in peril by commotion, tumult or threat on account of pathological conditions prevalent in a particular venue, the request for transfer may not be dismissed summarily. It causes disquiets and concern to a Court of justice if a person seeking justice is unable to appear present one's case, bring one's witnesses or adduce evidence. Indeed, it is the duty of the Court to assume propitious conditions which conduce to comparative tranquillity at the trial. Turbulent conditions putting the accused's life in danger or creating chaos inside the Court hall may jettison public justice. If this vice is peculiar to a particular place and is persistent the transfer of the case from that place may become necessary."
13. The learned counsel for the petitioner Mr. Purkayastha has submitted that the apprehension of the petitioner that he will not get fair trial is genuine and deserves 10 consideration for holding the trial in a free atmosphere. In support of his submission the learned counsel has placed reliance on the following decisions (1) AIR 1958 SC 309 (G.X.Francis and others, appellants -vs- Banke Bihari Singh and another, respondents, (2) 1983 1 GLR 15 ( Shri Krishna Singh -vs- The Union Territory of Mizoram; (3) AIR 2006 SC 6 (Jayendra Saraswathy Swamigal , Tamil Nadu -vs- State of Tamil Nadu and ors; (4) (2009) 6 SCC 260 ( Captain Amarinder Singh -vs- Parkash Singh Badal & others); (5) AIR 2011 1 SC 307) Nahar Singh Yadav and another -vs- Union of India and ors; (6) (2014) 2 NEJ 46 (Gau) Aboni Kumar Kalita (Dr) -vs- Monalisa Sharma & ors; (7) AIR 2016 SC 336Usmangani Adambhai Vahore -vs- State of Gujarat and anr;
14. The principle laid down in those cases is more or less same. It has been held that if there is reasonable apprehension on the part of a party to a case that justice may not be done, he may seek transfer of a case. But such apprehension must be reasonable but not a mere allegation. In Srikrishna Singh (supra) the Court allowed the transfer petition U/S 407 CrPC for transfer of the case outside Mizoram on the ground that the petitioner apprehends that he would not get fair trial in the surcharged atmosphere and that he would not be able to give appropriate defence to himself and also that his life was in danger in Aizawl. The Court also observed that in view of the public agitation over the incident, the case of the petitioner deserves consideration.
15. The case in hand since after the incident the petitioner is residing at North Lakhimpur apprehending life and liberty in the place of occurrence and the aforesaid instances already create a fearphychosis is his mind to attend the Court at Yupia and a sense of insecurity as well as apprehension of not getting fair trial. A submission has been made that his witnesses may not dare to appear before the CJM Yupia out of fear of their life and on the other hand, place of residence of alleged victim not far away 11 from North Lakhimpur as they have to go to Itanagar (Yupia) via North Lakhimpur. So it will be convenient for them also to appear before the Court at North Lakhimpur.
16. Taking into consideration the entire facts and circumstances of the case and the materials on record this Court has no hesitation in holding that the petitioner has a reasonable apprehension that he may not get a fair trial in the State of Arunachal Pradesh. Without casting any reflection on the District Judiciary, and State functionary it held that trial of the aforesaid case should be held in a different District in a free and fair atmosphere. Therefore, this Court is of the considered view that the interest of justice required that the trial may be transferred to a place outside the State of Arunachal Pradesh.
17. The transfer petition is accordingly allowed. G.R.Case No.432/2013 (Itanagar Women Police Station Case No. 57/2013 U/S 354/354(A)(1)(i)/342 IPC) pending before the Chief Judicial Magistrate, Papumpare at Yupia is hereby transferred to the Court of Chief Judicial Magistrate, North Lakhimpur, who may try the case himself or assigned it to any other competent Court to try the same. Send a copies of this order to learned C.J.M, Yupia and learned C.J.M., North Lakhimpur.
18. The petition stands disposed of accordingly.
JUDGE Nandi 12