Madhya Pradesh High Court
Vishram Singh Rawat vs The State Of Madhya Pradesh on 29 January, 2018
1
THE HIGH COURT OF MADHYA PRADESH
Mcrc.17216/17
(Vishram Singh Rawat Vs. State of M.P.)
Gwalior Dt. 29/1/2018
Shri Anil Mishra, Advocate for the petitioner.
Shri J.M.Sahni, Public Prosecutor for the State.
1.Learned counsel for the rival parties are heard on the question of admission
2. The jurisdiction of this court u/S.407 Cr.P.C. is invoked seeking transfer of the Special Sessions Case No.11/2015 (Lokayukt) pending before the First Additional Sessions Judge/Special Judge (Prevention of Corruption Act), Morena to the adjoining district of Gwalior or to any other place and for quashment of the order dated 26/5/2017 by which the right of the defence to cross-examine PW-5 Ram Gopal ASI posted in Second Battalion SAF Gwalior has been closed.
3. The above said prayer is founded on the factual matrix that on 26/5/2017 PW-5 Ram Gopal was subjected to examination/cross- examination in Sp. Sessions Case No. 11/15 (Lokahukt). On the said date, examination-in-chief was conducted by Special Public Prosecutor Shri P.K.Shrivastava during pre-lunch session whereafter the same was concluded. Immediately thereafter cross-examination by Shri Harswarop Maheshwari, counsel for the accused commenced but during course of cross-examination learned counsel for the defence Shri Maheshwari walked out of the court room complaining that the deposition being recorded is at variance to what PW-5 is actually stating. Thereafter another defence counsel Shri Pachori appeared and informed the Presiding Officer that since recording of deposition is not in line with the actual revelation made by PW-5, he would not cross-examine the said witness. At this juncture, the Presiding Officer recorded a note after making query from PW-5 and also from the Special Public Prosecutor that the dictation being taken 2 by the deposition writer is exactly the same as disclosed by PW-5. The Presiding Officer further recorded that refusal on the part of the defence counsel to conclude cross-examination of the said PW-5 amounts to contempt of the court. The Presiding Officer further recorded that a copy of the order passed by him on 26/5/2017 be sent to the District & Sessions Judge, Morena and also to the Registrar General of the High Court at Jabalpur for information and appropriate action. Thereafter, the Presiding Officer asked the accused whether he would like to cross-examine the PW-5 Ram Gopal to which the accused declined and responded that the same counsel whom he has engaged will conduct the cross-examination. At this stage, the Presiding Officer closed the right of the accused to cross-examine PW-5.
3.1 After the aforesaid order was passed on 26/5/2017 closing right of the accused to cross-examine PW-5, PW-12 Shakil Qureshi was subjected to examination/cross-examination on 16/8/2017. After conduction of examination-in-chief of PW-12 Shakil Qureshi, the Presiding Officer asked certain questions as part of cross-examination presumably in the absence of the defence counsel. Further PW-13 Umendra Singh was also examined on the same day, i.e., 16/8/2017. PW-13 was subjected to examination-in-chief by the Public Prosecutor and to cross-examination by Shri M.L.Gupta, counsel for the accused.
3.2 The case is said to be slated for final hearing after closing the evidence.
4. The present petition expresses apprehension by the petitioner- accused that in view of the events that took place on 26/5/2017 there is a real apprehension that justice would not be done as free and fair trial is not possible due to the biased attitude of the said Presiding Officer.
5. Before adverting to the reasonableness of the apprehension 3 nursed by the accused in his mind, it is appropriate to notice that the grievance of the petitioner/accused stems out of the order passed in the month of May, 2017. It is not known as to why the accused did not promptly raise his grievance about his apprehension if the same was true. The present petition was filed on 5/10/2017 when recording of evidence was concluded and the trial was at the fag end. However, this court refrains from treating the said delay as an obstacle for accused to raise the issue of transfer provided the all important element of apprehension nursed in his mind is real and substantial.
6. Learned counsel for the petitioner placing reliance on the decision of the Apex Court in the case of Satish Jaggi Vs. State of Chhattisgarh and others (2007) 3 SCC 62 and as well as this court in Shambhoodayal Vs. State of M.P. & others reported in 1986 MPLJ 371, Ku. Bhawna & another Vs. State of M.P. (1998) Cri.L.J. 3256 and of Karnataka High Court in Hunasavadi Rajan Rao & A.C.Gopal Bhat Vs. State of Karnataka in Cri. Petition No.16183/12 decided on 4/1/2013 submitted that looking to the events which transpired from 26/5/2017 impartial trial by the said Presiding Officer is not possible.
6.1 The law in regard to the power of High Court to transfer cases from one court to other is contained in Sec. 407 Cr.P.C. 6.2 The principle governing the power of transfer of cases as envisaged in S. 407 Cr.P.C. is succinctly laid down by the Apex Court in the case of Gurucharan Das Chadha Vs. State of Rajasthan (AIR 1966 SC 1418) which has been duly considered in subsequent decision in the case of Abdul Nazar Madani Vs. State of Tamil Nadu & Anr (2000) 6 SCC 204 and recently in the case of Usmangani Adambhai Vahora Vs. State of Gujarat & another (2016) 3 SCC 370. The above said two decisions have been taken into account to elaborately lay down the law on the issue. The Apex 4 Court in the said recent case of Usmangani Adambhai (supra) while explaining term of "apprehension" has laid down thus:- "7. So far as apprehension is concerned, it has to be one which would establish that justice will not be done. In this context, we may profitably refer to a passage from a three-Judge Bench decision in Gurcharan Dass Chadha v. State of Rajasthan[1], wherein it has been held:-
"13. ... The law with regard to transfer of cases is well-settled. A case is transferred if there is a reasonable apprehension on the part of a party to a case that justice will not be done. A petitioner is not required to demonstrate that justice will inevitably fail. He is entitled to a transfer if he shows circumstances from which it can be inferred that he entertains an apprehension and that it is reasonable in the circumstances alleged. It is one of the principles of the administration of justice that justice should not only be done but it should be seen to be done. However, a mere allegation that there is apprehension that justice will not be done in a given case does not suffice. The Court has further to see whether the apprehension is reasonable or not. To judge of the reasonableness of the apprehension the state of the mind of the person who entertains the apprehension is no doubt relevant but that is not all. The apprehension must not only be entertained but must appear to the Court to be a reasonable apprehension."
8. This Court in Abdul Nazar Madani v. State of T.N.[2] has ruled that:-
"7...The apprehension of not getting a fair and impartial inquiry or trial is required to be reasonable and not imaginary, based upon conjectures and surmises. If it appears that the dispensation of criminal justice is not possible impartially and objectively and without any bias, before any court or even at any place, the appropriate court may transfer the case to another court where it feels that holding of fair and proper trial is conducive. No universal or hard-and-fast rules can be prescribed for deciding a transfer petition which has always to be decided on the 5 basis of the facts of each case. Convenience of the parties including the witnesses to be produced at the trial is also a relevant consideration for deciding the transfer petition. The convenience of the parties does not necessarily mean the convenience of the petitioners alone who approached the court on misconceived notions of apprehension. Convenience for the purposes of transfer means the convenience of the prosecution, other accused, the witnesses and the larger interest of the society."
9. In Captain Amarinder Singh v. Parkash Singh Badal and others[3], while dealing with an application for transfer petition preferred under Section 406 CrPC, a three-Judge Bench has opined that for transfer of a criminal case, there must be a reasonable apprehension on the part of the party to a case that justice will not be done. It has also been observed therein that mere an allegation that there is an apprehension that justice will not be done in a given case alone does not suffice. It is also required on the part of the Court to see whether the apprehension alleged is reasonable or not, for the apprehension must not only be entertained but must appear to the Court to be a reasonable apprehension. In the said context, the Court has held thus:-
"19. Assurance of a fair trial is the first imperative of the dispensation of justice. The purpose of the criminal trial is to dispense fair and impartial justice uninfluenced by extraneous considerations. When it is shown that the public confidence in the fairness of a trial would be seriously undermined, the aggrieved party can seek the transfer of a case within the State under Section 407 and anywhere in the country under Section 406 CrPC.
20. However, the apprehension of not getting a fair and impartial inquiry or trial is required to be reasonable and not imaginary. Free and fair trial is sine qua non of Article 21 of the Constitution. If the criminal trial is not free and fair and if it is biased, judicial fairness and the criminal justice system would be at stake, shaking the confidence of the public in the system. The apprehension must appear to the court to be a reasonable one."6
10. In Lalu Prasad alias Lalu Prasad Yadav v. State of Jharkhand[4], the Court, repelling the submission that because some of the distantly related members were in the midst of the Chief Minister, opined that from the said fact it cannot be presumed that the Presiding Judge would conclude against the appellant. From the said decision, we think it appropriate to reproduce the following passage:-
"20. Independence of judiciary is the basic feature of the Constitution. It demands that a Judge who presides over the trial, the Public Prosecutor who presents the case on behalf of the State and the lawyer vis-à-vis amicus curiae who represents the accused must work together in harmony in the public interest of justice uninfluenced by the personality of the accused or those managing the affairs of the State. They must ensure that their working does not lead to creation of conflict between justice and jurisprudence. A person whether he is a judicial officer or a Public Prosecutor or a lawyer defending the accused should always uphold the dignity of their high office with a full sense of responsibility and see that its value in no circumstance gets devalued. The public interest demands that the trial should be conducted in a fair manner and the administration of justice would be fair and independent."
The aforesaid passage, as we perceive, clearly lays emphasis on sustenance of majesty of law by all concerned. Seeking transfer at the drop of a hat is inconceivable. An order of transfer is not to be passed as a matter of routine or merely because an interested party has expressed some apprehension about proper conduct of the trial. The power has to be exercised cautiously and in exceptional situations, where it becomes necessary to do so to provide credibility to the trial. There has to be a real apprehension that there would be miscarriage of justice. [See : Nahar Singh Yadav and another v. Union of India and others[5]].
11. In the instant case, we are disposed to think that apprehension that has been stated is absolutely mercurial and cannot remotely be stated to be reasonable. The learned single Judge has taken an exception to the remarks given by the learned trial judge and also opined about non-examination of any witness by him. As far as 7 the first aspect is concerned, no exception can be taken to it. The learned Sessions Judge, while hearing the application for transfer of the case, called for remarks of the learned trial judge, and in such a situation, he is required to give a reply and that he has done. He is not expected to accept the allegations made as regards his conduct and more so while nothing has been brought on record to substantiate the same. The High Court could not have deduced that he should have declined to conduct the trial. This kind of observation is absolute impermissible in law, for there is no acceptable reason on the part of the learned trial judge to show his disinclination. Solely because an accused has filed an application for transfer, he is not required to express his disinclination. He is required under law to do his duty. He has to perform his duty and not to succumb to the pressure put by the accused by making callous allegations. He is not expected to show unnecessary sensitivity to such allegations and recuse himself from the case. If this can be the foundation to transfer a case, it will bring anarchy in the adjudicatory process. The unscrupulous litigants will indulge themselves in court haunting. If they are allowed such room, they do not have to face the trial before a court in which they do not feel comfortable. The High Court has gravely erred in this regard."
6.3 The law as laid down by the Apex Court in the case of Usmangani Adambhai (supra) is that the apprehension of not getting a fair and impartial trial is required to be real and reasonable but not imaginary merely based on conjecture, surmise and hunch. The ultimate test laid down is that in the event the case is not transferred then failure of justice would occasion and the fundamental right of the aggrieved party of free and fair trial u/Art. 21 of the Constitution would stand breached. The Apex Court while saying so cautioned that while taking a call in regard to transfer based upon apprehension of impartial trial, the court should also ensure the interest of the victim, the prosecution and societal compulsions. The transfer should not to be made merely for the asking in a routine manner, or else unscrupulous litigants may take advantage and indulge in court hunting. The Apex Court has also 8 pointed out that no hard and fast rule or straitjacket formula can be laid down for exercise of power u/S. 407 Cr.P.C., and each case is to be decided based on the attending facts and circumstances tested on the anvil of fair play, good conscience and reasonableness.
7. As we have often seen that the Judicial Officers in the district judiciary are working under stressful condition where the lawyers are not only breathing down their neck but also up to their nostril. The Judicial Officers are further faced with the adverse circumstances of inadequate infrastructural amenities and do not enjoy the aloof and detached atmosphere which is otherwise required for a judge for proper dispensation of justice as is available to the superior courts. 7.1 Therefore, this court while adjudicating upon the reasonableness of the apprehension nursed by the accused is required to keep in mind the aforesaid adverse and difficult circumstances in which the Judicial Officers of the district judiciary are compelled to work.
8. The grievance in the present case appears to be based on the incident which took place on 26/5/2017 during the cross-examination of PW-5. The defence counsel was of the view that the cross- examination being recorded was not in line with the answers given by the PW-5 to the questions asked by the defence counsel. The defence counsel thus walked out of the court room in the midst of the cross-examination which to say the least was not becoming of a counsel. If the learned counsel had any objection as to the method of recording of the cross-examination he should have given an objection in writing after making oral objection and should have continued and concluded the cross-examination instead of boycotting the court proceedings which amounts to abdication of professional duty not only towards his client but also towards the court as an officer of the court.
8.1 The circumstances which arose thereafter was such that the 9 Presiding Officer was faced with a piquant situation where none of the two counsel for the defence were ready to conclude cross- examination of PW-5 and therefore the Presiding Officer closed the right of the defence to further cross-examine the witnesses. 8.2 If the conduct of the Presiding Officer is visualized from an impartial and dispassionate view point, then one can get a prima facie impression that the Presiding Officer has been slightly harsh in closing the right to conclude cross-examination of the accused. The Presiding Officer could have very well sought assistance of any counsel from the panel of Legal Aid Services so that right of cross- examination of the accused is not prejudiced. However this order of closing the right cannot be said to be unreasonable or unjustified that it may give rise to a real and reasonable apprehension in the mind of the accused that justice would not be done at the hands of the Presiding Officer.
8.3 There is nothing on record to indicate that any attempt was made by the accused to engage any other counsel and to file any application for recalling of the order dated 26/5/2017. In fact it is seen from the record at page 40 of the petition that PW-13 was subjected to cross-examination on 16/8/2017 by the counsel for defence Shri M.L.Gupta which is clear indication of the fact that the accused was represented on the said date, i.e. 16/8/2017. 8.4 The petitioner has also brought on record the Resolution passed by the District Bar Association, Morena in it's meeting dated 18/7/2017 that the said Presiding Officer since long has been indulging in misbehaviour with the members of the District Bar Association, Morena who are belittled and humiliated at the hands of the said Presiding Officer. The said Resolution is signed by 90 members of the Bar Association. Certain order-sheets have also been filed of various hearings i.e., 2/1/2018 and 9/1/2018 by which the applications u/S. 311 & 217 Cr.P.C., filed by the accused represented 10 by Shri M.L.Gupta, Advocate for recalling of PW-1 Banwari and for producing one Preetam Singh as DW-2 have been allowed by the Presiding Officer. On the same day, i.e., 2/1/2018 the statements of accused Vishram Singh as DW-1 and of DW-2 Preetam Singh were also recorded and they were discharged. The matter was then listed for final arguments on 3/1/2018 on which date time as sought by the counsel for the accused was granted and the case was fixed for final arguments on 9/1/2018. On 9/1/2018 an application u/S. 217 Cr.P.C. , was moved by the accused seeking amendment in the charge framed against him. The Presiding Officer allowed the said application for correction in the charge and directed for carrying out the same but denied the request for re-examination of the witnesses examined earlier. The matter was thus taken up on the same day for final hearing. The Presiding Officer then heard defence counsel Shri Harshswaroop Maheshwari on behalf of the accused from 1 pm to 2 p.m and from 2-45 p.m. to 4-45 p.m., but the arguments could not be concluded and therefore the case was fixed on the next day, i.e., 10/1/2018 for hearing the remaining arguments. 8.5 In these subsequent hearings which took place on 2/1/2018, 9/1/2018 and 10/1/2018 the accused was duly represented not only by his counsel Shri M.L.Gupta who appears to have been engaged subsequent to the order passed on 26/5/2017 but also by the same counsel Shri Harswaroop Maheshwari who had walked out of the court of the Presiding Officer in the midst of the cross-examination on 26/5/2017. If the petitioner had any grievance against the order passed by the Presiding Officer on 26/5/2017 then it was open for him to assail the same before the higher forum in accordance with law which he does not seem to have done.
9. From the above conspectus of the facts attending the case, it is obvious that the strict but yet bold view taken by the Presiding Officer on 26/5/2017 during the cross-examination of PW-5 may have 11 given rise to an apprehension that justice would not be done but the said apprehension was not a real and substantial one. 9.1 The Presiding Officer cannot be blamed for being prejudiced or biased merely because he took extreme steps of closing the right of cross-examination for the obvious reason that he was compelled to do so by the conduct of the counsel on 26/5/2017. Therefore, the said order passed by the Presiding Officer on 26/5/2017 in the considered opinion of this court can not lead to a situation which may give an impression that impartial trial is not possible. This is obvious from the fact that on subsequent occasions the cross-examination of other PWs was permitted to be conducted and also that applications u/S. 311 & 315 and 217 Cr.P.C. filed by the accused were allowed by the same Presiding Officer.
10. Accordingly, the apprehension as alleged by the petitioner/accused of having melted with injustice at the hands of the Presiding Officer is unfounded.
11. In view of the above, no case for transfer u/S. 407 Cr.P.C. of the prosecution in question is made out.
12. The petition fails and is dismissed.
(Sheel Nagu) (S.A.Dharmadhikari)
Judge Judge
(Bu)
DHANANJAYA BUCHAKE
2018.02.01 17:39:27 +05'30'