Patna High Court
Harbans Singh vs Daroga Singh And Ors. on 9 October, 1956
Equivalent citations: AIR1957PAT661, 1957(5)BLJR160, 1957CRILJ1303, AIR 1957 PATNA 661, 1957 BLJR 160
JUDGMENT Misra, J.
1. This is an application for transfer of Sessions Trial 105 of 1956, pending in the Court of Mr. Jugal Kishore Prasad, Additional Sessions Judge, Patna, to any other Court, on the following allegations.
2. The opposite party are being tried before the learned Additional Sessions Judge on a charge under Section 302, Indian Penal Code. The occurrence leading to the prosecution of the opposite party is alleged to have taken place on the llth of January, 1956, in village Bairia within police-station Phulwari Shariff. There was another occurrence alleged to have taken place on the 10th of December, 1955, leading to the prosecution of the petitioner and others on a charge of murder in which a member of the family of the opposite party was alleged to have lost his life. It appears that the petitioner and others were standing trial in the Court of Mr. Anant Singh Sessions Judge of Fatna, and the case was numbered as Sessions Trial 110 of 1956.
The 24th of August, 1956, was the date fixed for Sessions Trial 105 of 1956 in the Court of Mr. Jugal Kishore Prasad, Additional Sessions Judge, whereas the 20th of August, 1956, was the date for the opening of Sessions Trial 110 of 1956 in the Court of Mr. Anant Singh, Sessions Judge of Patna. Sessions Trial 110, however, actually opened in the Court of Mr. Anant Singh, not on the 20th of August, 1956, the date fixed, but two days later, on the 22nd of August, 1956. Petitioner Harbans Singh, one of the prosecution party in Sessions Trial 105 of 195G, made an application on the 23rd of August. 1956, in the Court of Mr. Jugal Kishore Prasad that he and Chandradeo Singh were accused in the other case in the Court of Mr. Anant Singh and that it was not possible for them to be in the proper frame of mind so as to be able to depose on the 24th of August in the Court of the learned Additional Sessions Judge.
The prayer was, however, rejected on the ground that no suitable date was available before the closing of the Courts for the Puja and the learned Judge was not prepared to adjourn the trial to any date after the re-opening of the Courts. Accordingly, on the 24th of August, 1956, Sessions Trial 105 of 1956 actually opened before the learned Additional Sessions Judge and the prayer on behalf of the petitioner Harbans Singh was renewed for adjournment of the case by filing a fresh petition for the purpose to move the High Court against the order of rejection of the prayer for adjournment. The learned Additional Sessions Judge, however, again rejected it on the ground that the Assistant Public Prosecutor was not asking for time and had not joined in the prayer.
It may be stated that the complainant was represented by a Mokhtar engaged by him to look after the case. After the rejection of the above application, another petition was filed by the Mokhtar representing the complainant for adjournment to move the High Court for transfer of the case from the Court of the learned Additional Sessions Judge, That application was not allowed on the ground that the learned Assistant Public Prosecutor had not pressed for transfer. About that time, Mr. Braj Nandan Prasad, Advocate, appeared and stated that the proper course to adopt would be that the case should not be taken up for some time and it might begin after 2 P. M. The application for adjournment was ordered to be kept on the record and the trial began after 2 P.M. Chandradeo Singh (P.W. 1) one of the members of the family of petitioner Harbans Singh was, however, released by "Mr. Anant Singh, the Sessions Judge, to depose as a prosecution witness in the Court of Mr. Jugal Kishore Prasad. He came to that Court and complained of pain in the stomach. He was accordingly sent back to the Court of the learned Sessions Judge. The grievance made by the petitioner is that, when he was sent back, the learned Sessions Judge threatened the witness as to why he had come back without deposing when he was released specifically to enable him to depose in the Court of Mr. Jugal Kishore Prasad.
3. The trial proceeded and on the 27th of August, 1956, Ramanuj Singh (P.W. 3) was being cross-examined. The allegation of the petitioner is that while he was under cross-examination the learned Additional Sessions Judge remarked to the defence counsel, "Why are you cross-examining? I am going to disbelieve this witness".
On the 31st of August, 1956, the petitioner Harbans Singh (P.W. 8) was being cross-examined and, again, the learned Additional Sessions Judge said to the learned defence counsel, "No use wasting your time. I am going to disbelieve the witness".
On the 1st of September, 1956 the case was taken up for argument at 11-15 A.M. and the prosecution had to wind up his argument before 12 A.M. when learned defence counsel rose to argue. The learned Additional Sessions Judge thereupon again observed to him, "In order to justify your existence argue for ten minutes only".
After listening to a short argument addressed by Mr. Nageshwar Prasad, on behalf of the accused, the learned Additional Sessions Judge fixed the 10th September, 1956, as the date of judgment.
In the meantime, judgment in Sessions Trial 110 of 1956, in the Court of Mr. Anant Singh, Sessions Judge, was delivered and the petitioner and the other co-accused were acquitted. An application was again made on the 8th of September, 1956, before the learned Additional Sessions Judge for transfer of the case. The learned Additional Sessions Judge on receiving the application for transfer on the 8th of September, 1956, ordered that the delivery of judgment would be withheld pending a stay order from the High Court and time was granted to the petitioner till the 17th of September, 1956, for the same. The petitioner, accordingly, has come up to this Court with the prayer for transfer of the case.
4. The following grounds have been urged in support of the application by learned counsel for the petitioner : (1) That the order of the learned Additional Sessions Judge rejecting the prayer of the petitioner for adjournment of the case to any date after the Puja or to any date after the case against the petitioner before the learned Sessions Judge was over, was not a proper order as the learned Additional Sessions Judge should have realised the fact that the petitioner could not be expected to possess the requisite equilibrium of mind, in the circumstances, to depose in that Court in a proper way; (2) that the learned Additional Sessions Judge should not have rejected the prayer for time made on the 24th of August, 1956, on the ground that the Assistant Public Prosecutor was not asking for time and he was ready to proceed, inasmuch as the petitioner, too, had a locus standi in the matter and, in fact, it was he who had to depose and knew his position better than the Assistant Public Prosecutor; (3) that the learned Additional Sessions Judge should not have acted upon the assurance of Mr. Braj Nandan Prasad, Advocate who was a lawyer of the petitioner in the trial before Mr. Anant Singh, as he was neither engaged to act nor to plead on behalf of the petitioner, in Sessions Trial 105 of 1956. The learned Additional Sessions Judge should have passed a definite order on the application of the petitioner and should not have left it undisposed of on the bare assurance of a gentleman who was not engaged by the petitioner before him. The learned Additional Sessions Judge was not justified in making the remark "the complainant has engaged a Mokhtar and he is putting obstacles to the trial. This is nothing but a tactic to obtain adjournment'', and (4) that the learned Additional Sessions Judge was clearly in the wrong in remarking while P.W. 3 Ramanuj Singh was being examined, "I am going to disbelieve this witness". Likewise, he should not have made a similar remark when petitioner Harbans Singh was being cross-examined, arid, lastly, the learned Additional Sessions Judge should not have told Mr. Nageshwar Prasad that he could argue, only to justify his appearance in the case, for ten minutes but in fact it was not necessary to raise any argument at all.
5. According to learned counsel for the petitioner, the cumulative effect of the grounds mentioned above was that his client had no confidence in the fairness of the trial and he had a reasonable apprehension in his mind that he would not get justice in the Court of Mr. Jugal Kishore Prasad and, accordingly, the case should be transfer-red from his Court to some other Court. In any view of the matter, even if Mr. Jugal Kishore Prasad had no bias against the petitioner, the circumstances mentioned above still raise a reasonable apprehension in his mind and Mr. Prasad should not proceed to judgment in the case, and the case should be transferred from his file.
Learned counsel for the opposite party, however, has urged that the learned Additional Sessions Judge did nothing to give any real foundation for apprehension in the mind of the petitioner that he would not get a fair and impartial trial in that Court, because there is no allegation of any personal bias in the case. The allegations referred to covered certain orders passed by the learned Additional Sessions Judge and the remarks arcade by him to the defence counsel. In so far as the orders in question are concerned, learned. Additional Sessions Judge had to take up the trial as he could not delay it; this being a case of trial on a charge of murder.
The Puja holidays being fairly long, the learned Additional Sessions Judge rightly refused the prayer for adjourning the case to any date after the Puja holidays. The petitioner was bound to be released by the learned Sessions Judge, and in fact he was released, for deposing in the Court of the learned Additional Sessions Judge, and hence no fault can be found with the various orders passed by the learned Additional Sessions Judge rejecting the prayer made on behalf of the petitioner for adjournment of the case. In my opinion, there is substance in the argument raised on behalf of the opposite party. It may well be that, in the peculiar circumstances of the case, the learned Additional Sessions Judge could have adjourned the trial to any date after the Puja holidays, if a suitable date was not available before the Puja, but if, in fact, he thought it proper not to adjourn the case it cannot be challenged as a definite improper order.
A certain amount of discretion in these matters is necessarily left to the Court in seizin of the case and no party can make a grievance if the Court is not prepared to adjourn the case, much less in the case of murder trial which has to be finished as speedily as possible. I am accordingly not prepared to accede to the argument raised on behalf of the petitioner so far as the orders of rejection of the prayer for adjournment by the learned Additional Sessions Judge are concerned.
6. Learned counsel for the petitioner stressed, in the next place, that, in any view, the remarks made by the learned Additional Sessions Judge against the prosecution witnesses, particularly prosecution witnesses Nos. 3 and 8, namely, Ramanuj Singh and the petitioner Harbans Singh, were wholly unjustified and likely to demoralise the witnesses, as the learned Judge openly told the defence counsel that he was going to disbelieve them. Learned counsel for the opposite party has urged that in terms of the provisions of Section 363, Code of Criminal Procedure, it was necessary for the learned Additional Sessions Judge to make a note of the demeanour of the witnesses, and the remarks made by him could be covered by this section.
When, the learned Additional Sessions Judge said that he was not going to believe P. Ws. 3 and 8, what he really meant was that he was not satisfied with their demeanour and he thought that they were not telling the truth. The remark, there-fore, should be taken as the note made by the learned Judge about the demeanour of the witnesses. I am afraid, it is difficult to accept the interpretation of the word 'remark' advanced by Mr. Nageshwar Prasad on behalf of the opposite party. To note the demeanour of a witness is one thing but to give out while the witness is being cross-examined that he is a liar and that the Court is not going to believe him, is to give out the mind of the Court with regard to the credibility of the witness.
This does not amount to noting the demean-our of the witness and, thus, is not covered by the terms of Section 363, Code of Criminal Procedure, In the case of Golam Bari Gazi v. Yar Ali Khan, 26 Cri LJ 852: (AIR 1925 Cai 480 (2)) (A), a Division Bench of the Calcutta High Court had occasion to consider the matter. There also, the trial Magistrate made a similar remark with, regard to the credibility of the witness while he was being cross-examined in the Court, and the aggrieved party moved the Calcutta High Court for transfer of the case. The remark made in that case was "The witness falters and from his demeanour it appears that he has not told the truth".
In that case the learned Magistrate also had commented upon the demeanour of the witness and from that made certain inference. But this was deprecated by the Division Bench of the Calcutta High Court and the view taken was that this amounted to the Court making up its mind while recording the deposition, which was improper. Accordingly, their Lordships held that it was desirable that the case should be transferred from the Court of the learned Magistrate trying it to the Court of some other Magistrate. In the present case, the learned Additional Sessions Judge has not made any remark about the demeanour of the witnesses but gave out distinctly that he was not going to believe them, without saying what was ills basis for coming to the conclusion that he was not going to believe them.
The present case, therefore, is on a stronger footing than the case which was the subject matter of consideration before the Calcutta High Court in the above case. I must, however, guard myself against being understood to say that whenever a Court makes a remark derogatory to a witness this necessarily constitutes a ground for transfer of the case from that Court to some other Court. Everything depends upon the context. It may well be that some times a casual remark is made by the Court which is purely of a tentative character, but not conclusive and the court never intends the remark to be taken too literally. Mr. Nageshwar Prasad urged that while hearing an appeal also the appellate Court sometimes does observe that a certain witness may not be relied upon by the Court) although on a fuller consideration, the Court acts to the contrary.
I agree that it is so, and the mere fact that a certain remark has been made will not necessarily show that the Court has made up its mind. I must, however, make it clear that a Magistrate or a Judge holding an original trial should take good care to avoid remarks which may demoralise the witness or create an atmosphere of prejudice or hostility against him. While the Court is quite free to make a note of the demeanour of the witness, it is desirable to avoid remarks of an apparently conclusive character which their Lordships of the Calcutta High Court deprecated in the case of 26 Cri LJ 852: (AIR, 1925 Cal 480 (2)) (A). It may well be that in the present case the remarks made might be passed over as being tentative although avoidable, but the learned Additional Sessions Judge, in the explanation submitted by him, has said that when he found that the witness was not giving straight-forward answers he did tell the cross-examining lawyer that the demeanour of the witness clearly indicated that he was not a truthful witness, and it was not necessary to further cross-examine him as he was not going to rely upon his evidence.
This relates to the evidence of Ramanuj Singh. He has also stated with regard to Harbana Singh, the petitioner, P..W. 8, that he also did not give a straightforward answer and, accordingly, a note was made in his deposition to that effect. No fault can be found with the learned Judge, accordingly, so far as Harbans Singh is concerned, and the explanation submitted by him must be accepted as against the allegation of the petitioner. But so far as Ramanuj Singh is concerned, the learned Judge submits that he did tell the cross-examining lawyer that he would not rely upon his evidence and that it is his general practice to give it out in course of the examination or cross-examination of the witnesses.
The attention of the learned Additional Sessions Judge is drawn to the fact that it is not a healthy practice that he is following in speaking outright in course of the examination of the witness that he would not believe him. I need not elaborate the reasons because I have given sufficient indication to show that such practice is not to be encouraged. As it is, therefore, this might constitute a strong ground for transfer of the case from the Court of the Additional Sessions Judge to the Court of any other Sessions Judge. Since, however, there is another aspect of the matter with which I shall presently deal, the effect of this remark is to be considered in that light. In my opinion, there is no substance in the grievance made on behalf of the petitioner that the learned Additional Sessions Judge told Mr. Nageshwar Prasad that he might argue for ten minutes just to justify his existence in the case because although he says that the learned Additional Sessions Judge was not impressed by the argument made on his behalf, he heard Mr. Nageshwar Pra-sad in reply.
7. I have mentioned above that the remarks made by the learned Additional Sessions Judge against Ramanuj Singh and Harbans Singh might justify an order of transfer of the case but for the fact that the present application does not appear to be a bona fide application in the sense that the petitioner in fact has a reasonable apprehension in his mind that he will not get a fair trial. It may well be that in certain circumstances remarks like those made above will give rise to such an apprehension in the mind of a party, but whether such an apprehension has been or has not been caused can be ascertained from the conduct of the aggrieved party. It has been contended on behalf of the opposite party that the petitioner Harbans Singh cannot be said to have entertained any reasonable apprehension as a result of the remark made by the learned Additional Sessions Judge.
If, in fact, he had any reasonable apprehension, he should have immediately made an application expressing the apprehension in his mind either on the 27th of August, 1956 or in any case, on the 31st of August, 1956, when the petitioner was being cross-examined and the remark objected to by him was made by the trial Court. He made no grievance on either of these two dates and it was only after he was acquitted in the Sessions Trial against him on the 7th September, 1956, by the learned Sessions Judge that he felt emboldened and wanted to take a chance of getting the trial before some other Court than before Mr. Ju-gal Kishore Prasad. because he thought that the opposite party might not be convincted by that Court.
In my opinion, there appears to be substance in this contention. Learned counsel for the petitioner no doubt, has argued before UK that it was not possible for the petitioner to stress the apprehension in his mind before the learned Sessions Judge on the 31st of August, because he was already an accused in the Court of the learned Sessions Judge in Sessions Trial 110 of 1956. I can see, however, no connection between the two cases.
It will be fantastic to suggest that if the petitioner had any grievance against the manner of trial by Mr. Jugal Kishore Prasad and if he had expressed it by filing a petition to that effect, it might, in any way, have affected the mind of the learned Sessions Judge. Mr. Chakraverty, for the petitioner, however, has contended, that the petitioner had to arrange for money to move the application in the High Court and already being tied up in the Sessions Trial, it was difficult for him to arrange for the necessary funds for this case. The argument does not appear to me to be convincing.
For one thing, no heavy amount of cost was required for filing an application in this Court and, in the next place, there was no difficulty at least in filing an application before Mr. Prasad on the 31st August, 1956, praying for sufficient time during which he would find it convenient to move the High Court for making the transfer. The argument on behalf of the Opposite Party, in the circumstances, appears to be well-founded that the petitioner has come to this Court not because he entertains any reasonable apprehension in his mind that he will not get a fair trial, but that there may be some kind of apprehension in his mind, on account of the way in which the prosecution witnesses have fared, that the opposite party may not be convicted.
He is accordingly out to try a chance to have his enemies punished, if possible, in a different Court. The application, therefore, not being bona fide as based on a reasonable apprehension in the mind of the petitioner, however deprecable might be the remark made by the learned Additional Sessions Judge, I am not satisfied that it is a fit case in which the order for transfer should be passed by this Court.
8. Learned counsel for the Opposite Party as well as the learned Additional Standing Counsel, who appeared in this Court in response to our directions, have raised an additional point that the present application is not to be entertained in this Court, because in terms of the mandatory provisions of Sections 526 and 528, Code of Criminal Procedure, the petitioner was bound to move the learned Sessions Judge for transfer of the case.
The petitioner not having done so, the present application in the High Court is not to be entertained in view of Sub-section (1) (A) of Section 526, Code of Criminal Procedure, incorporated by the amendment of 1955 (Act 26 of 1955). Learned counsel for the petitioner, however, has drawn our attention to Sub-sections (1-A), (1-B) and (1-C) incorporated in Section 528 of the Code and has, urged that the position still remains unaltered so far as the Additional Sessions Judges are concerned, and that when a party seeks transfer of his case pending before the Additional Sessions Judge to any Court, it is not obligatory to move the Sessions Judge.
Sub-section (1-C) of Section 528, therefore, being general in its scope, the provisions of Sub-sections (1-A) and (1-B) are not affected by Sub-section (1-C): The point is no doubt an interesting one and Mr. G.P. Shahi has endeavoured to meet it by contending that Sub-section (1-A) refers to recall of a-case or appeal by the Sessions Judge in respect of the case which he has made over to an Additional Sessions Judge. Sub-section (1-C), however, is different in scope and relates to an application for transfer of a case within the same Sessions Division from one Criminal Court to another Criminal Court.
The Additional Sessions Judge's Court also is a Criminal Court within the meaning of Section 6, Code of Criminal Procedure, which defines that the Criminal Court includes the Sessions Court also. He has also drawn our attention in this connection to Section 9 of the Code. The point raised by Mr. Shahi is not without substance. It is, however, unnecessary to determine this question in the present case, as the application can be disposed of on the shorter ground that it is not a bona fide application and the petitioner cannot succeed on that account.
9. In the result, the application fails and it is dismissed.
Choudhuri, J.
10. I agree.