Madhya Pradesh High Court
Ku. Bhawna And Anr. vs State Of M.P. on 30 July, 1997
Equivalent citations: 1998CRILJ3256
JUDGMENT S.P. Khare, J.
1. This is a petition under Section 407 of the Code of Criminal Procedure, 1973 for transfer of Sessions Trial No. 102 of 1996 from Seoni to Jabalpur or Indore.
2. It is not in dispute that non-applicant No. 2 Vinod Kumar Rai is an advocate practising at Seoni. He is facing trial for the offences punishable under Sections 363, 366, 342, 328 and 506B Indian Penal Code on the report of applicant No. 1 Ku. Bhavna daughter of applicant No. 2 Madan Babel in the Court of II Additional Sessions Judge, Seoni. The Bar Association, Seoni in its general meeting passed a resolution comdemning the act of the police in arresting Vinod Kumar Rai and ill-treating him. A copy of that resolution is Annexure A. This resolution was passed on the complaint of Vinod Kumar Rai. He. has filed a Civil Suit under Section 9 of the Hindu Marriage Act, 1955 alleging that applicant No. 1 Bhavna is his wife. She appeared in that civil suit to contest it. She made an application to the effect that she is not getting a suitable lawyer from Seoni to defend her in the civil suit. The non-applicant No. 2 got the summons issued to her giving her addresses of Ratlam, Mandsour and Jaipur without any order of the Court in that behalf. The applicants have moved for transfer of the civil suit from Seoni and the proceedings in that suit have been stayed by an order of this Court. The non-applicant No. 2 on 5-5-1997 submitted a complaint in writing before the District and Sessions Judge, Seoni against Smt. Indirani Dutta, the Additional Sessions Judge in whose Court the Sessions Case was pending and against Shri Yadunath Vyauhar, Additional Public Prosecutor. A copy of that complaint is Annexure to the application dated 15-7-1997. The sessions case was fixed for hearing on 1-7-1997 but on that date the Public Prosecutor did not appear in the Court. A copy of order-sheet of that date is Annexure D.
3. The case of the applicants is that because of the resolution of the Bar Association, Seoni they are not getting a competent and suitable lawyer for protection of their legal rights. The non-applicant No. 2 has created an atmosphere which is not conducive to fair trial. On 7-11-1996 the non-applicant No. 2 met the applicant No. 1 at Indore and threatened her. She has made a complaint to that effect in writing. The non-applicant No. 2 is making complaints against the Judge and the Additional Public Prosecutor to terrorise them. The result is that the Additional Public Prosecutor who was entrusted this case has stopped appearing in the case and the prosecution is not being conducted in right earnest. The applicants are important witnesses in the case and they are afraid of appearing in the case and giving evidence in the absence of a free and detached atmosphere. They have a reasonable apprehendsion in their mind that justice would be denied to them.
4. The case of non-applicant No. 2 is that there was a love affair between him and Bhavna. They married on 26-4-1996. She was fully a consenting party but her father got a false report lodged against him. He was Executive Engineer in P. W.D. at Seoni and the police tortured and handcuffed him at his instance. It is for this reason that Bar Association, Seoni passed the said resolution. Five lawyers appeared on behalf of the applicants to oppose the bail application of the non-applicant No. 2. Thus, the applicants are getting the services of the lawyers at Seoni. The non-applicant No. 2 did not go to Indore on 7-11 -1996 and did not threaten the applicant No. 1. He was at Seoni on that date. The complaint made by him to the District and Sessions Judge, Seoni is not false. The prosecution is being conducted by the Additional Public Prosecutor. Smt. Indirani Dutta has been transferred and she has been succeeded by Shri R.B. Dohre.
5. The point for determination is whether the applicants have reasonable apprehension that they would not get fair and impartial trial and whether the transfer of the case is expedient for the ends of justice.
6. After hearing the learned Counsel for both the sides this Court is of the opinion that the Sessions case should be transferred from Seoni to Jabalpur. The applicants have entertained a reasonable apprehension that they would not get a fair and impartial trial at Seoni and that apprehension in the circumstances of the case cannot be said to be ill-founded. On the complaint of the non-applicant No. 2 the Bar Association, Seoni has passed the resolution mentioned above. The Additional Public Prosecutor is also a member of the Bar. The non-applicant No. 2 made a complaint against the Additional Public Prpsecutor who was conducting the case and he has stopped appearing in that case. The order-sheet dated 1-7-1997 shows that none appeared for the prosecution on that date. Shri Awasthi, Public Prosecutor authorised Shri Razak, Advocate to appear in the case. He also did not appear. Shri Shyam Daheria, Advocate appeared on behalf of the prosecution without any legal authority in that behalf. That shows that the prosecution is not being conducted in all its seriousness. It is being done lukewarmly and that is the first ground to make out a case of reasonable apprehension in the mind of the applicants. There is substance in their plea that they are not getting proper legal assistance at Seoni. The non-applicant No. 2 made a joint complaint against the presiding judge and the Additional Public Prosecutor and this may be a pressure tactic affecting the concept of justice without fear and favour. The Judge has been transferred but the atmosphere at Seoni is not conducive to fair trial. The petitioners are not required to demonstrate that justice will inevitably fail. They are entitled to have the case transferred if it is shown that there are circumstances from which it can be inferred that they entertain an apprehension and that is reasonable in the circumstances alleged.
Gurcharan Singh v. State AIR 1966 SC 1418 : (1966 Cri LJ 1071) and Shambhoo v. State 1985 MPLJ 213 : (1985 Cri LJ 638).
7. Lord Hewart C.J. observed in Sussex Justices, Mc. Carthy, Exparte (1924) 1 KB 256 as under:-
The trial of a case should be in an atmosphere which does not create even a suspicion that there has been or is likely to be an improper interference with the course of justice. It is not merely of some importance but of fundamental importance that justice should not only be done but should manifestly be seen to be done.
8. The learned Counsel for the non-applicant No. 2 has relied upon the decision of the Supreme Court in Maneka Sanjay Gandhi v. Rani Jethmalani AIR 1979 SC 468: (1979 Cri LJ 458) where it has been observed that assurance of a fair trial is the first imperative of the dispensation of justice and the central criterion for. the Court to consider when a motion for transfer is made is not the hypersensitivity or relative convenience or a party of easy availability of legal services or like mini grievances. It is contended on behalf of the non-applicant No. 2 that the applicants have mini grievances. But in the opinion of this Court the grievances of the applicants are not mini but major. Detached judicial trial in an unpolluted climate is of prime-significance. In the case of Maneka Gandhi the Supreme Court has recognised the principle that if the whole Bar is hostile that would be adequate ground for transfer of the case. The resolutiuon of the Bar in the present case coupled with the conduct of the Public Prosecutor in passing the buck is sufficient to raise reasonable apprehension in the mind of the applicants that justice may be denied to them.
9. In the result, the application is allowed and the Sessions Trial No. 102 of 1996 pending in the Court of II Additional Sessions Judge, Seoni is transferred to the Sessions Judge, Jabalpur for trial by him.